EXHIBIT 2.6
EXECUTION COPY
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DEPOSITARY AGREEMENT
Dated as of February 26, 2004
among
CONSTRUCTORA INTERNACIONAL DE INFRAESTRUCTURA, S.A. DE C.V.,
as Borrower
WESTLB AG, NEW YORK BRANCH,
as Facility Administrative Agent
BANCO SANTANDER CENTRAL HISPANO, S.A., NEW YORK BRANCH,
as Offshore Collateral Agent
WESTLB AG, NEW YORK BRANCH,
as Intercreditor Agent
CITIBANK, N.A.,
as Note Trustee
BANCO SANTANDER CENTRAL HISPANO, S.A., NEW YORK BRANCH,
as Offshore Depositary Bank
and
BANCO SANTANDER MEXICANO, S.A.
as Onshore Collateral Agent
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section 1.01 Definitions.................................................................. 2
ARTICLE II
CREATION OF ACCOUNTS
Section 2.01 Creation of Accounts......................................................... 5
Section 2.02 Maintenance of Accounts...................................................... 6
Section 2.03 Representations and Covenants regarding the Offshore Accounts................ 7
Section 2.04 Notice of Exclusive Control.................................................. 10
ARTICLE III
DEPOSITS INTO ACCOUNTS
Section 3.01 Deposits Into the Dollar Disbursement Account................................ 10
Section 3.02 Deposits Into the Dollar Revenue Account..................................... 11
Section 3.03 Deposits Into the Dollar Loss Proceeds Deposit Account....................... 11
Section 3.04 Deposits Into the Dollar LC Accounts......................................... 12
Section 3.05 Deposits into the Dollar Performance Guarantee Deposit Account............... 12
Section 3.06 Deposits Into the Dollar Construction Account................................ 12
Section 3.07 Deposits into the Dollar DSU Account......................................... 13
Section 3.08 Deposits into the Onshore Account............................................ 13
Section 3.09 Information to Accompany Amounts Delivered to the Offshore Depositary Bank;
Deposits Irrevocable......................................................... 13
Section 3.10 Books of Account; Statements................................................. 15
Section 3.11 Written Instructions......................................................... 15
ARTICLE IV
ALLOCATIONS FROM ACCOUNTS
Section 4.01 Allocations From the Dollar Disbursement Account............................. 16
Section 4.02 Allocations From the Dollar Revenue Account.................................. 17
Section 4.03 Allocations from the Dollar Construction Account............................. 18
Section 4.04 Allocations From the Dollar Loss Proceeds Account............................ 18
Section 4.05 Payments To Secured Parties.................................................. 19
Section 4.06 Allocations from the Dollar DSU Account...................................... 20
Section 4.07 Allocations from Onshore Account............................................. 21
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ARTICLE V
SUBSTITUTION AND EXPIRATION OF LETTERS OF CREDIT
Section 5.01 Substitution................................................................. 21
Section 5.02 Expiration................................................................... 22
Section 5.03 Release...................................................................... 22
Section 5.04 Balance...................................................................... 23
ARTICLE VI
INVESTMENTS AND VALUATION
Section 6.01 Investments.................................................................. 23
Section 6.02 Income or Gain............................................................... 24
Section 6.03 Value........................................................................ 24
Section 6.04 Taxes........................................................................ 25
ARTICLE VII
RIGHTS, DUTIES AND POWERS OF THE OFFSHORE DEPOSITARY BANK
Section 7.01 Appointment of Offshore Depositary Bank...................................... 25
Section 7.02 Rights of Offshore Depositary Bank........................................... 25
Section 7.03 Resignation and Removal of Offshore Depositary Bank.......................... 27
ARTICLE VIII
INDEMNIFICATION
Section 8.01 Indemnification From Borrower................................................ 28
ARTICLE IX
MISCELLANEOUS
Section 9.01 Agreement for Benefit of Parties Hereto...................................... 28
Section 9.02 No Warranties................................................................ 28
Section 9.03 Reimbursement of Expenses.................................................... 28
Section 9.04 Reinstatement................................................................ 29
Section 9.05 Severability................................................................. 29
Section 9.06 Notices...................................................................... 29
Section 9.07 Successors and Assigns....................................................... 29
Section 9.08 Counterparts................................................................. 29
Section 9.09 Governing Law; Submission to Jurisdiction.................................... 30
Section 9.10 WAIVER OF JURY TRIAL......................................................... 31
Section 9.11 No Impairments of Other Rights............................................... 31
Section 9.12 Amendment; Waiver............................................................ 31
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Section 9.13 Incumbency Certificates; Authorized Persons; Reliance on Certificates........ 31
Section 9.14 Headings..................................................................... 31
Section 9.15 Entire Agreement............................................................. 31
Section 9.16 Incorporation by Reference................................................... 32
Section 9.17 Conflicting Terms............................................................ 32
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EXHIBITS
Exhibit A - Form of Payment Instructions
Exhibit B - Form of Notice of Exclusive Control
Exhibit C - Form of Withdrawal Certificate
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This DEPOSITARY AGREEMENT (this "Agreement"), dated as of February 26,
2004, among CONSTRUCTORA INTERNACIONAL DE INFRAESTRUCTURA, S.A. DE C.V., a
sociedad anonima de capital variable organized under the laws of Mexico (the
"Borrower"), BANCO SANTANDER CENTRAL HISPANO, S.A., NEW YORK BRANCH, in its
capacity as offshore collateral agent (in such capacity, together with its
successors and assigns, the "Offshore Collateral Agent"), BANCO SANTANDER
MEXICANO, S.A., in its capacity as onshore collateral agent (in such capacity,
together with its successors and assigns, the "Onshore Collateral Agent"),
WESTLB AG, NEW YORK BRANCH, in its capacity as Facility Administrative Agent
under the Common Agreement referred to below (in such capacity, together with
its successors and assigns, the "Facility Administrative Agent"), WESTLB AG, NEW
YORK BRANCH, in its capacity as intercreditor agent (in such capacity, together
with its successors and assigns, the "Intercreditor Agent"), CITIBANK, N.A., in
its capacity as note trustee (in such capacity, together with its successors and
assigns, the "Note Trustee"), and BANCO SANTANDER CENTRAL HISPANO, S.A., NEW
YORK BRANCH, in its capacity as offshore depositary bank (in such capacity,
together with its successors and assigns, the "Offshore Depositary Bank").
PRELIMINARY STATEMENTS
1. Pursuant to the International Public Bid (Licitacion
Internacional Publica) No. 18164093-011-02 (the "RFP"), the Borrower has been
awarded a contract to develop and construct a hydroelectric generating plant to
be located in the La Yesca and Santa Maria del Oro municipalities of the State
of Nayarit, Mexico, which construction shall be in accordance with the terms,
conditions and specifications set forth in the Bid for the Project and the Mixed
Financed Public Works Contract (Contrato Mixto de Obra Publica Financiada),
dated March 26, 2003, entered into by the Borrower and the Comision Federal de
Electricidad ("CFE").
2. Pursuant to the Common Agreement, dated as of February 26,
2004 (as the same may be amended, supplemented or otherwise modified from time
to time, the "Common Agreement"), WestLB AG, New York Branch, as intercreditor
agent, each of the banks and other financial institutions listed on the
signature pages thereto as lenders, WestLB AG, New York Branch, as facility
administrative agent, Citibank, N.A., as Note Trustee, Banco Santander Central
Hispano, S.A., New York Branch, as Offshore Collateral Agent, Banco Santander
Mexicano, S.A., as Onshore Collateral Agent and the other Creditors (as defined
therein) and Creditor Representatives (as defined therein) from time to time
party thereto and other Financing Documents (as defined in the Common
Agreement), the Creditors have agreed to make available to the Borrower the
financing for the Project (as defined in the Common Agreement) described
therein.
3. The parties hereto desire to enter into this Agreement to,
among other things, (i) appoint Banco Santander Central Hispano, S.A., New York
Branch, as Offshore Depositary Bank hereunder and (ii) set forth certain
procedures for the deposit, investment and disbursement of the Loans (as defined
in the Common Agreement) and all receipts of and payments made by the Borrower
in U.S. Dollars (as defined in the Common Agreement).
4. It is a condition to the Creditors making the financing
described above available to the Borrower that this Agreement shall have been
executed and delivered by the parties hereto.
NOW, THEREFORE, in consideration of the foregoing and in order to
induce the Creditors to enter into the Common Agreement and other financing
documents, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and further acknowledging that the
Secured Parties (as defined in the Common Agreement) intend to rely on the
undertakings of the Borrower hereunder, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions.
(a) For all purposes of this Depositary Agreement, except
as otherwise expressly provided herein, capitalized terms used and not otherwise
defined herein shall have the meanings set forth in the Common Agreement. The
principles of construction set forth in Sections 1.02 and 1.03 of the Common
Agreement are incorporated herein by reference, mutatis mutandis, as if fully
set forth herein.
(b) Where the day on or by which a payment is due to be
made is not a Business Day, that payment shall be made on the next succeeding
Business Day.
(c) For all purposes of this Agreement, the terms
"control", "entitlement order", "financial asset", "investment property",
"securities account" and "deposit account" have the meanings assigned thereto in
Articles 8 and 9 of the UCC as in effect on the date hereof.
(d) As used in this Agreement the following terms have
the following meanings:
"Account Collateral" means (a) each Offshore Account (including any
sub-accounts thereof), (b) all cash, cash equivalents, securities, investments,
financial assets, Security Entitlements, payments, other amounts, and all other
items of property from time to time held, maintained or carried in, or credited
to or deposited in, any of the Offshore Accounts, including Permitted
Investments, (c) all rights, claims and causes of action, if any, that the
Borrower may have against any Person in respect of the foregoing and (d) all
proceeds of any or all of the foregoing.
"Book-Entry Security" shall mean a security maintained in the form of
entries (including the Security Entitlements in, and the financial assets based
on, such security) in the commercial book-entry system of the Federal Reserve
System.
"Cap Sub-Account" has the meaning assigned to that term in Section
2.01(a)(ix).
"CFE" has the meaning assigned to that term in the first preliminary
statement.
"Common Agreement" has the meaning assigned to that term in the second
preliminary statement.
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"Depositary Bank Claims" means all obligations of the Borrower, now or
hereafter existing, to pay fees, costs, expenses and other amounts to the
Offshore Depositary Bank under this Agreement (including pursuant to Section
8.01 and Section 9.03) and any agreements, instruments and documents executed
and delivered pursuant hereto.
"Dollar Construction Account" has the meaning assigned to that term in
Section 2.01(a)(vi).
"Dollar Cost Overrun Guarantee Account" means the Dollar Cost Overrun
Guarantee Deposit Account and the Dollar Cost Overrun Guarantee Securities
Account, collectively.
"Dollar Cost Overrun Guarantee Deposit Account" has the meaning
assigned to that term in Section 2.01(a)(iv).
"Dollar Cost Overrun Guarantee Securities Account" has the meaning
assigned to that term in Section 2.01(b)(ii).
"Dollar Disbursement Account" has the meaning assigned to that term in
Section 2.01(a)(i).
"Dollar Disbursement Guarantee Account" means the Dollar Disbursement
Guarantee Deposit Account and the Dollar Disbursement Guarantee Securities
Account, collectively.
"Dollar Disbursement Guarantee Deposit Account" has the meaning
assigned to that term in Section 2.01(a)(v).
"Dollar Disbursement Guarantee Securities Account" has the meaning
assigned to that term in Section 2.01(b)(iii).
"Dollar DSU Account" has the meaning assigned to that term in Section
2.01(a)(viii).
"Dollar LC Accounts" means the Dollar Cost Overrun Guarantee Account
and the Dollar Disbursement Guarantee Account, collectively.
"Dollar Loss Proceeds Account" means the Dollar Loss Proceeds Deposit
Account and the Dollar Loss Proceeds Securities Account, collectively.
"Dollar Loss Proceeds Deposit Account" has the meaning assigned to that
term in Section 2.01(a)(iii).
"Dollar Loss Proceeds Securities Account" has the meaning assigned to
that term in Section 2.01(b)(i).
"Dollar Performance Guarantee Account" means the Dollar Performance
Guarantee Deposit Account and the Dollar Performance Guarantee Securities
Account, collectively.
"Dollar Performance Guarantee Deposit Account" has the meaning assigned
to that term in Section 2.01(a)(vii).
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"Dollar Performance Guarantee Securities Account" has the meaning
assigned to that term in Section 2.01(b)(iv).
"Dollar Revenue Account" has the meaning assigned to that term in
Section 2.01(a)(ii).
"Federal Book-Entry Regulations" means (a) the federal regulations
contained in Subpart B ("Treasury/Reserve Automated Debt Entry System (TRADES)"
governing Book-Entry Securities consisting of U.S. Treasury bonds, notes and
bills) and Subpart D ("Additional Provisions") of 31 C.F.R. Part 357, 31 C.F.R.
Sections 357.10 through Section 357.14 and Sections 357.40 through Section
357.44 (including related defined terms in 31 C.F.R. Section 357.2) and (b) to
the extent substantially identical to the federal regulations referred to in
subsection (a) above (as in effect from time to time), the federal regulations
governing other Book-Entry Securities.
"Mexican Business Day" shall mean a day of the year on which banks are
not required or authorized to close in Mexico City, Mexico.
"Notice of Exclusive Control" means a notice in substantially the form
of Exhibit B hereto.
"Offshore Accounts" means the Offshore Deposit Accounts and the
Offshore Securities Accounts, collectively.
"Offshore Deposit Accounts" has the meaning assigned to that term in
Section 2.01(a).
"Offshore Securities Accounts" has the meaning assigned to that term in
Section 2.01(b).
"Onshore Account" has the meaning assigned to that term in Section
2.01(c).
"Pesos" means the lawful currency of Mexico.
"Securities Intermediary" means a Person that (a) is a "securities
intermediary" as defined in Section 8-102(a)(14) of the UCC and (b) in respect
of any Book-Entry Security, is also a "securities intermediary" as defined in 31
C.F.R. Section 357.2 (or, as applicable to such Book-Entry Security, the
corresponding Federal Book-Entry Regulations governing such Book-Entry
Security).
"Security Entitlement" means (a) "security entitlement" as defined in
Section 8-102(a)(17) of the UCC (except in respect of a Book-Entry Security) and
(b) in respect of any Book-Entry Security, a "security entitlement" as defined
in 31 C.F.R. Section 357.2 (or, as applicable to such Book-Entry Security, the
corresponding Federal Book-Entry Regulations governing such Book-Entry Security)
which, to the extent required or permitted by the Federal Book-Entry
Regulations, is also a "security entitlement" as defined in Section 8-102(a)(17)
of the UCC.
"Specified Offshore Deposit Accounts" means the Dollar Loss Proceeds
Deposit Account, the Dollar Cost Overrun Guarantee Deposit Account, the Dollar
Disbursement Guarantee Deposit Account and the Dollar Performance Guarantee
Deposit Account.
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"UCC" means the Uniform Commercial Code as in effect in the State of
New York, as interpreted and construed by the courts of the State of New York.
"Withdrawal Certificate" means a certificate signed by a Representative
of the Borrower, in substantially the form of Exhibit C hereto.
ARTICLE II
CREATION OF ACCOUNTS
Section 2.01 Creation of Accounts.
(a) The Borrower hereby requests the Offshore Depositary
Bank to establish and the Offshore Depositary Bank hereby agrees to establish on
the date hereof (and to maintain and administer in accordance with the terms of
this Agreement), the following U.S. Dollar-denominated, special, segregated and
irrevocable non-interest bearing demand deposit accounts (each, an "Offshore
Deposit Account" and, collectively, the "Offshore Deposit Accounts"):
(i) an account entitled "El Cajon Dollar
Disbursement Account" bearing Account No. 8130690001 Ref: El Cajon (the "Dollar
Disbursement Account");
(ii) an account entitled "El Cajon Dollar Revenue
Account" bearing Account No. 8130790001 Ref: El Cajon (the "Dollar Revenue
Account");
(iii) an account entitled "El Cajon Dollar Loss
Proceeds Deposit Account" bearing Account No. 8130890001 Ref: El Cajon (the
"Dollar Loss Proceeds Deposit Account");
(iv) an account entitled "El Cajon Dollar Cost
Overrun Guarantee Deposit Account" bearing Account No. 8130990001 Ref: El Cajon
(the "Dollar Cost Overrun Guarantee Deposit Account");
(v) an account entitled "El Cajon Dollar
Disbursement Guarantee Deposit Account" bearing Account No. 8131090001 Ref: El
Cajon (the "Dollar Disbursement Guarantee Deposit Account");
(vi) an account entitled "El Cajon Dollar
Construction Account" bearing Account No. 8131190001 Ref: El Cajon (the "Dollar
Construction Account");
(vii) an account entitled "El Cajon Dollar
Performance Guarantee Deposit Account" bearing Account No. 8131290001 Ref: El
Cajon (the "Dollar Performance Guarantee Deposit Account");
(viii) an account entitled "El Cajon Dollar DSU
Account" bearing Account No. 8131390001 Ref: El Cajon (the "Dollar DSU
Account"); and
(ix) an account entitled "El Cajon Cap
Sub-Account" bearing Account No. 8131490001 Ref: El Cajon (the "Cap
Sub-Account").
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Unless otherwise expressly provided in the Financing Documents,
references to the Dollar Disbursement Account in the Financing Documents shall
be deemed to constitute references to the Dollar Disbursement Account and the
Cap Sub-Account, collectively.
(b) The Borrower hereby requests the Offshore Depositary
Bank to establish and the Offshore Depositary Bank hereby agrees to establish on
the date hereof (and to maintain and administer in accordance with the terms of
this Agreement), the following U.S. Dollar-denominated, special, segregated and
irrevocable securities accounts (each, an "Offshore Securities Account" and,
collectively, the "Offshore Securities Accounts"):
(i) an account entitled "El Cajon Dollar Loss
Proceeds Securities Account" bearing Account No. 8130890001 Ref: El Cajon (the
"Dollar Loss Proceeds Securities Account");
(ii) an account entitled "El Cajon Dollar Cost
Overrun Guarantee Securities Account" bearing Account No. 8130990001 Ref: El
Cajon (the "Dollar Cost Overrun Guarantee Securities Account");
(iii) an account entitled "El Cajon Dollar
Disbursement Guarantee Securities Account" bearing Account No. 8131090001 Ref:
El Cajon (the "Dollar Disbursement Guarantee Securities Account"); and
(iv) an account entitled "El Cajon Dollar
Performance Guarantee Securities Account" bearing Account No. 8131290001 Ref: El
Cajon (the "Dollar Performance Guarantee Securities Account").
(c) The Borrower hereby requests the Onshore Collateral
Agent to establish and the Onshore Collateral Agent hereby agrees to establish
on the date hereof (and to maintain and administer in accordance with the terms
of this Agreement), a Peso-denominated special, segregated and irrevocable
account entitled "El Cajon Onshore Account" bearing Account No. 6550109969-7
(clave 014180) Ref: El Cajon (the "Onshore Account").
Section 2.02 Maintenance of Accounts.
(a) Each Account shall be maintained by the Offshore
Depositary Bank and the Onshore Collateral Agent, as the case may be, at all
times in accordance with the terms of this Agreement and the other Financing
Documents to which the Offshore Depositary Bank and the Onshore Collateral Agent
may be a party until the date on which the Commitments have been terminated and
all of the Obligations have been indefeasibly paid in full. All amounts from
time to time held in or credited to each Account shall not constitute payment of
any Obligation or any other obligation of the Borrower until applied to the
payment of such Obligation or other obligation of the Borrower as hereinafter
provided. The Offshore Accounts shall, until disbursed in accordance with the
terms of this Agreement, constitute the property of the Borrower, subject to (i)
the security interest created therein in favor of the Offshore Collateral Agent,
as agent for and on behalf of the Secured Parties, as further described in
Section 2.02(b) and (ii) the right of the Offshore Collateral Agent or, to the
extent expressly provided herein, the Intercreditor Agent pursuant to the terms
of this Agreement to issue entitlement orders and other demands and instructions
with respect to the Offshore Securities Accounts or any financial asset
maintained or
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carried therein or credited thereto. The Onshore Account shall be held in the
name of the Onshore Collateral Agent, shall constitute the property of the
Onshore Collateral Agent (for the benefit, firstly, of the Secured Parties and,
secondly, of the Borrower) and shall be administered as security for the
Obligations. No payments shall be made out of the Accounts, except for the
purposes and on the terms provided in this Agreement, in the Note Documents and
in the Loan Documents.
(b) To secure the payment of the Obligations, the
Borrower has assigned, transferred and pledged to, and granted a security
interest in favor of, the Offshore Collateral Agent pursuant to the U.S.
Security Agreement, in all of the right, title and interest of the Borrower that
it now possesses or may hereafter obtain, in and to, among other things, the
Account Collateral.
(c) The Offshore Depositary Bank shall promptly notify
the Intercreditor Agent and the Offshore Collateral Agent in writing of its
receipt and the amount of any funds received from any Person that is, or is
required hereunder to be, deposited into the Dollar Revenue Account, the Dollar
Loss Proceeds Deposit Account, the Dollar Cost Overrun Guarantee Deposit
Account, the Dollar Disbursement Guarantee Deposit Account, the Dollar
Performance Guarantee Deposit Account, the Dollar Construction Account, the Cap
Sub-Account or the Dollar DSU Account, specifying the Offshore Account into
which such funds have been deposited. The Onshore Collateral Agent shall
promptly notify the Intercreditor Agent in writing of its receipt and the amount
of any funds received from any Person that is, or is required hereunder to be,
deposited into the Onshore Account. The Intercreditor Agent shall promptly upon
receipt thereof provide to the Borrower a copy of each written notification it
receives from the Offshore Depositary Bank or the Onshore Collateral Agent
pursuant to this Section 2.02(c). Notwithstanding the foregoing, the Borrower
and each other party hereto hereby agrees that any delay in giving, or any
failure to give, any notice referenced in this Section 2.02(c) to the Borrower
shall not affect the rights of any Secured Party under this Agreement or any
other Transaction Document.
(d) The Offshore Accounts shall be established,
maintained and administered at the offices of the Offshore Depositary Bank in
the City of New York, New York. The Onshore Account shall be established,
maintained and administered at the offices of the Onshore Collateral Agent in
Mexico City, Mexico.
Section 2.03 Representations and Covenants regarding the Offshore
Accounts. For purposes of this Agreement, the parties hereto confirm and agree
as follows:
(a) The Offshore Depositary Bank confirms that it has
established each Offshore Account in accordance with Section 2.01(a) and (b) and
agrees to comply with the directions of the Offshore Collateral Agent or as
expressly provided herein of the Intercreditor Agent, as applicable, relating to
such Offshore Accounts given pursuant to this Agreement.
(b) All property delivered or transferred to the Offshore
Collateral Agent or the Offshore Depositary Bank pursuant to this Agreement for
credit to an Offshore Account will be promptly credited to the applicable
Offshore Account.
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(c) On the date hereof and for so long as this Agreement
remains in effect, the Offshore Depositary Bank confirms that (i) it is and
shall remain a "bank" as defined in Section 9-102 of the UCC and shall act as
such with respect to the establishment and maintenance of the Offshore Deposit
Accounts and (ii) it is and shall remain a Securities Intermediary and shall act
as such with respect to the establishment and maintenance of the Offshore
Securities Accounts and the Security Entitlements carried therein.
(d) The Offshore Depositary Bank agrees that each
Offshore Deposit Account is and will be maintained as a "deposit account"
(within the meaning of Section 9-102 of the UCC).
(e) The Offshore Depositary Bank agrees that each
Offshore Securities Account is and will be maintained as a "securities account"
(within the meaning of Section 8-501(a) of the UCC). The Offshore Depositary
Bank shall identify the Offshore Collateral Agent on its books and records as
the "entitlement holder" (within the meaning of Section 8-102(a)(7) of the UCC)
of the Security Entitlements carried in the Offshore Securities Accounts,
subject to the right, as expressly provided herein, of the Intercreditor Agent
to issue any entitlement orders, instructions or directions with respect to the
Offshore Securities Accounts, the Security Entitlements carried therein and the
financial assets credited thereto pursuant to the terms of this Agreement.
(f) The Offshore Depositary Bank agrees that each item of
property (including any investment property, financial assets, securities,
instruments, general intangibles or cash) credited to the Offshore Securities
Accounts shall be treated as a "financial asset" (within the meaning of Articles
8 and 9 of the UCC).
(g) All securities or other property underlying any
financial assets credited to any Offshore Securities Account shall be registered
in the name of the Offshore Depositary Bank, endorsed to the Offshore Depositary
Bank or in blank or credited to another securities account in the name of the
Offshore Depositary Bank, and in no case shall any financial asset credited to
any Offshore Securities Account be registered in the name of the Borrower,
payable to the order of the Borrower, or specially endorsed to the Borrower,
except to the extent the foregoing have been specially endorsed to the Offshore
Depositary Bank or in blank.
(h) If at any time the Offshore Depositary Bank shall
receive any written instruction, direction or entitlement order from the
Offshore Collateral Agent or the Intercreditor Agent directing disposition,
transfer, withdrawal or redemption of any financial asset relating to any
Offshore Securities Account or transfer or withdrawal of any monies in any
Offshore Deposit Account or otherwise relating to any or all of the Account
Collateral, the Offshore Depositary Bank hereby agrees that it shall comply with
such written instruction, direction or entitlement order without further consent
from the Borrower or any other Person. If the Borrower is otherwise entitled to
issue any written instruction, direction or entitlement order in accordance with
the terms of this Agreement and such instruction, direction or entitlement order
conflicts with any written instruction, direction or entitlement order issued by
the Offshore Collateral Agent or the Intercreditor Agent, the Offshore
Depositary Bank shall follow the orders issued by the Offshore Collateral Agent
or the Intercreditor Agent, as applicable. If the Intercreditor Agent is
otherwise entitled to issue any written instruction, direction or entitlement
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order in accordance with the terms of this Agreement and such instruction,
direction or entitlement order conflicts with any written instruction, direction
or entitlement order issued by the Offshore Collateral Agent, the Offshore
Depositary Bank shall follow the orders issued by the Offshore Collateral Agent.
(i) Regardless of any provision in any other agreement,
for purposes of the UCC, the "bank's jurisdiction" (within the meaning of
Section 9-304(b) of the UCC) of the Offshore Depositary Bank with respect to
each Offshore Deposit Account and the "securities intermediary's jurisdiction"
(within the meaning of Section 8-110(e) of the UCC) of the Offshore Depositary
Bank with respect to each Offshore Securities Account is and shall continue to
be the State of New York.
(j) The Offshore Depositary Bank without independent
investigation knows of no right or claim to or interest in the Offshore Accounts
or other Account Collateral (including any "adverse claim" within the meaning of
Section 8-102(a)(1) of the UCC) by any Person other than the Borrower and the
Offshore Collateral Agent, acting on behalf of the Secured Parties. If any
Person asserts any lien, encumbrance or adverse claim (including any writ,
garnishment, judgment, warrant of attachment, execution or similar process)
against the Offshore Accounts, the Onshore Account or any other Account
Collateral, the Offshore Depositary Bank, after obtaining actual knowledge
thereof, shall promptly notify the Intercreditor Agent and the Borrower thereof.
(k) Except for liens specifically granted pursuant to the
Financing Documents, the Offshore Depositary Bank has not entered into and shall
not enter into any agreement with any other Person relating to the Offshore
Accounts and/or any financial assets from time to time credited thereto pursuant
to which it has agreed or will agree (unless otherwise required by applicable
Law) to comply with instructions, directions or entitlement orders of such
Person or any other Person. The Offshore Depositary Bank has not entered into
and shall not enter into any other agreement with the Borrower or any other
Person purporting to limit or condition the obligation of the Offshore
Depositary Bank to comply with instructions, directions or entitlement orders
originated by the Offshore Collateral Agent or the Intercreditor Agent.
(l) In the event that the Offshore Depositary Bank has or
subsequently obtains by agreement, operation of law or otherwise a security
interest in the Offshore Accounts or any other Account Collateral, the Offshore
Depositary Bank hereby agrees that such security interest shall be subordinate
to the security interest of the Offshore Collateral Agent.
(m) The Offshore Depositary Bank hereby waives and
releases any lien, encumbrance, claim, right of set-off or other right it may
have against the Offshore Accounts or any other Account Collateral (except that
the Offshore Depositary Bank may set off the face amount of any checks which
have been credited to the Offshore Accounts but are subsequently returned unpaid
because of uncollected or insufficient funds) and agrees that it shall not
assert any such lien, encumbrance, claim or right against the Offshore Accounts
or any other Account Collateral.
(n) The Offshore Collateral Agent shall be deemed to be
the "customer" of the Offshore Depositary Bank (within the meaning of Section
9-104(a)(3) of the UCC) for purposes
9
of the Offshore Accounts and as such shall be entitled to all the rights that
customers of banks have under applicable law with respect to deposit accounts,
including the right to withdraw funds from, or close, the Offshore Accounts. The
Offshore Depositary Bank shall not have title to the funds on deposit in the
Offshore Accounts, and shall credit the Offshore Accounts with all receipts of
interest, dividends and other income received in the Offshore Accounts. The
Offshore Depositary Bank shall administer and manage the Offshore Accounts in
strict compliance with all the terms applicable to the Offshore Accounts
pursuant to this Agreement, and shall be subject to and comply with all the
obligations that the Offshore Depositary Bank owes to the Offshore Collateral
Agent with respect to the Offshore Accounts, including all subordination
obligations, pursuant to the terms of this Agreement.
(o) Anything herein to the contrary notwithstanding, the
Offshore Depositary Bank shall not be required to follow any instruction that
would violate applicable law, decree, regulation or order of any Governmental
Authority.
Section 2.04 Notice of Exclusive Control.
(a) The Offshore Collateral Agent may deliver a Notice of
Exclusive Control only after the occurrence and during the continuance of a
Default or an Event of Default.
(b) Notwithstanding any other provision contained in this
Agreement, if at any time the Offshore Collateral Agent delivers to the Offshore
Depositary Bank a Notice of Exclusive Control and until written revocation of
such notice is delivered to the Offshore Depositary Bank by the Offshore
Collateral Agent, (i) the Offshore Depositary Bank agrees that it shall take all
directions, instructions or entitlement orders with respect to all of the
Offshore Accounts or any financial asset credited thereto or carried therein or
any other Account Collateral solely from the Offshore Collateral Agent or, as
expressly provided herein, from the Intercreditor Agent and (ii) neither the
Offshore Collateral Agent nor the Intercreditor Agent shall be required to
instruct the Offshore Depositary Bank to follow any transfer or withdrawal
requested by the Borrower in any Withdrawal Certificate or be required to
follow, or cause any Secured Party to follow, any direction, instruction or
other request of the Borrower pursuant to or in connection with this Agreement.
ARTICLE III
DEPOSITS INTO ACCOUNTS
Section 3.01 Deposits Into the Dollar Disbursement Account.(a) The net
proceeds of the Loans following application of a portion of such proceeds
pursuant to Section 2.01(b)(i) of the Common Agreement shall be deposited into
the Dollar Disbursement Account (but not into the Cap Sub-Account).
(b) The Borrower shall irrevocably direct each provider
of the Interest Rate Cap to make by wire transfer to the Offshore Depositary
Bank for deposit into the Cap Sub-Account all payments required to be made to
the Borrower thereunder (other than any payments from the Interest Rate Cap
provider as the result of any early termination of the Interest Rate Cap). In
the event that the Borrower directly receives any such amounts, the Borrower
shall hold
10
all such amounts in trust on behalf of the Offshore Collateral Agent segregated
from other property or funds of the Borrower and immediately shall transfer to
the Offshore Depositary Bank such amounts in the same form as so received (with
any necessary endorsement or assignment), accompanied by a written request to
deposit the same into the Cap Sub-Account, and the Offshore Depositary Bank
shall deposit the same into the Cap Sub-Account.
Section 3.02 Deposits Into the Dollar Revenue Account. The Borrower (i)
shall irrevocably direct CFE to make by wire transfer in U.S. Dollars directly
to the Offshore Depositary Bank for deposit into the Dollar Revenue Account all
payments required to be made to the Borrower in U.S. Dollars pursuant to the
Public Works Contract, (ii) shall request the Note Trustee to cause the
Noteholder Depositary Bank to transfer to the Offshore Depositary Bank by wire
transfer for deposit into the Dollar Revenue Account all amounts payable to the
Borrower pursuant to the proviso in the last sentence of Section 2.2(a) of the
Noteholder Depositary Agreement and (iii) shall cause all payments in whatever
form and whatever nature received by or for the account of the Borrower which
are not otherwise required by the terms hereof (or of Section 3.01(b), Section
3.01(c), Section 6.01(d)(ii) or Section 6.01(d)(vi) of the Common Agreement) to
be deposited into another Account) to be transferred by wire transfer directly
to the Offshore Depositary Bank in U.S. Dollars for deposit into the Dollar
Revenue Account. In the event that the Borrower directly receives any such
amounts, the Borrower shall hold all such amounts in trust on behalf of the
Offshore Collateral Agent segregated from other property or funds of the
Borrower and immediately shall transfer to the Offshore Depositary Bank such
amounts in the same form as so received (with any necessary endorsement or
assignment), accompanied by a written request to deposit the same into the
Dollar Revenue Account, and the Offshore Depositary Bank shall deposit the same
into the Dollar Revenue Account.
Section 3.03 Deposits Into the Dollar Loss Proceeds Deposit Account.
The Borrower shall, or shall request the Intercreditor Agent to instruct the
Onshore Collateral Agent in writing to, irrevocably direct all parties that are,
or may be, obligated to make (a) any insurance payment in respect of a casualty
loss, (b) any insurance payment in respect of Debt Service accruing during or
related to any business interruption (of a "delay", "delay in start-up" or
"alop" nature), (c) any insurance payment in respect of fixed costs accruing
during or related to any business interruption (of a "delay", "delay in
start-up" or "alop" nature) and (d) any payment in respect of a Taking, in each
case, to the extent such payments are required to be made in U.S. Dollars, to
make such payments by wire transfer in U.S. Dollars directly to the Offshore
Depositary Bank for deposit into Dollar Loss Proceeds Deposit Account (except,
in the case of insurance proceeds in respect of a casualty loss, as otherwise
provided in Section 6.01(d)(ii) of the Common Agreement). In the event that the
Borrower directly receives any such insurance payments or payments in respect of
a Taking, the Borrower shall hold all such amounts in trust on behalf of the
Collateral Agents segregated from other property or funds of the Borrower and
immediately shall transfer such amounts in the same form as so received (with
any necessary endorsement or assignment), if in Pesos, to the Onshore Collateral
Agent and, if in U.S. Dollars, to the Offshore Depositary Bank, in either case
accompanied by a written request to deposit the same into the Dollar Loss
Proceeds Deposit Account or the Onshore Account, as applicable, and the Offshore
Depositary Bank or Onshore Collateral Agent shall deposit the same into the
Dollar Loss Proceeds Deposit Account or the Onshore Account, as applicable.
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Section 3.04 Deposits Into the Dollar LC Accounts.
(a) All amounts drawn from any Disbursement LC shall be
transferred by the Intercreditor Agent or the Offshore Collateral Agent, as
applicable, to the Dollar Disbursement Guarantee Deposit Account. The Borrower
shall transfer to the Offshore Depositary Bank, accompanied by a written request
to deposit the same into the Dollar Disbursement Guarantee Deposit Account, all
amounts to be deposited pursuant to clauses (i) and (ii) of Section 6.01(r) of
the Common Agreement, and the Offshore Depositary Bank shall deposit the same
into the Dollar Disbursement Guarantee Deposit Account.
(b) All amounts drawn from any Cost Overrun LC shall be
transferred by the Intercreditor Agent or the Offshore Collateral Agent, as
applicable, to the Dollar Cost Overrun Guarantee Deposit Account. The Borrower
shall transfer to the Offshore Depositary Bank, accompanied by a written request
to deposit the same into the Dollar Cost Overrun Deposit Account, all amounts to
be deposited pursuant to Section 6.01(q) and Section 6.01(r)(iii) of the Common
Agreement, and the Offshore Depositary Bank shall deposit the same into the
Dollar Cost Overrun Guarantee Deposit Account.
Section 3.05 Deposits into the Dollar Performance Guarantee Deposit
Account. All amounts drawn by the Offshore Collateral Agent or the Intercreditor
Agent, as applicable, from any Performance Guarantee shall be transferred by the
Offshore Collateral Agent or the Intercreditor Agent, as applicable, to the
Dollar Performance Guarantee Deposit Account.
Section 3.06 Deposits Into the Dollar Construction Account.
(a) (i) All amounts withdrawn from the Dollar
Disbursement Account pursuant to Section 4.01(c) hereof, (ii) all amounts
withdrawn from the Dollar Revenue Account pursuant to Section 4.02(b) hereof,
(iii) all amounts withdrawn from the Note Proceeds Account pursuant to Section
4.1(c) of the Noteholder Depositary Agreement and (iv) all amounts transferred
from the Dollar Loss Proceeds Deposit Account pursuant to Section 4.04(d), shall
be deposited by the Offshore Depositary Bank into the Dollar Construction
Account. The Borrower shall cause (i) all amounts payable to the Borrower in
U.S. Dollars pursuant to Clauses 13.6 and 13.7 of the Electromechanical
Contract, (ii) all amounts payable to the Borrower in U.S. Dollars pursuant to
Clauses 13.6 and 13.7 of the CECSA Contract, (iii) all amounts payable to the
Borrower in U.S. Dollars pursuant to section (b) of Clause Twenty of the
Engineering Contract, and (iv) all amounts payable in U.S. Dollars under any
guarantee, bond, letter of credit or similar document or instrument in respect
of the obligation of any Principal Subcontractor to pay any amount payable to
the Borrower pursuant to any section or Clause referenced in (i), (ii) or (iii)
of this sentence, to be paid in U.S. Dollars by wire transfer to the Offshore
Depositary Bank for deposit into the Dollar Construction Account.
(b) In the event that the Borrower directly receives any
such amounts, the Borrower shall hold all such amounts in trust on behalf of the
Collateral Agents segregated from other property or funds of the Borrower and
immediately shall transfer to the Offshore Depositary Bank such amounts in the
same form as so received (with any necessary endorsement or assignment) for
deposit, if in Pesos, to the Onshore Collateral Agent and, if in U.S. Dollars,
to the Offshore Depositary Bank, in either case accompanied by a written request
to deposit the
12
same into the Dollar Construction Account or the Onshore Account, as applicable,
and the Offshore Depositary Bank or Onshore Collateral Agent shall deposit the
same into the Dollar Construction Account or the Onshore Account, as applicable.
Section 3.07 Deposits into the Dollar DSU Account. All amounts
transferred from the Dollar Loss Proceeds Deposit Account pursuant to Section
4.04(e) hereof shall be deposited by the Offshore Depositary Bank into the
Dollar DSU Account.
Section 3.08 Deposits into the Onshore Account. The Borrower (i) shall
irrevocably direct CFE to make all payments required to be made to the Borrower
in Pesos pursuant to the Public Works Contract to the Onshore Collateral Agent
directly by electronic transfer for deposit into the Onshore Account, (ii) shall
cause all payments payable in Pesos pursuant to any Principal Subcontract to be
transferred by electronic transfer directly to the Onshore Collateral Agent for
deposit into the Onshore Account and (iii) shall cause all payments otherwise
payable to the Borrower which are denominated in Pesos (other than any proceeds
of VAT Receivables, which the Borrower shall cause to be deposited into the Peso
Operating Account) to be transferred by electronic transfer directly to the
Onshore Collateral Agent for deposit into the Onshore Account. In the event that
the Borrower directly receives any such amounts, the Borrower shall hold all
such amounts in trust on behalf of the Onshore Collateral Agent segregated from
other property or funds of the Borrower and immediately shall transfer to the
Onshore Collateral Agent such amounts in the same form as so received (with any
necessary endorsement or assignment), accompanied by a written request to
deposit the same into the Onshore Account, and the Onshore Collateral Agent
shall deposit the same into the Onshore Account.
Section 3.09 Information to Accompany Amounts Delivered to the Offshore
Depositary Bank; Deposits Irrevocable.
(a) All amounts transferred to the Offshore Depositary
Bank or either Collateral Agent shall: (i) if transferred by wire or electronic
transfer, be accompanied by authenticated SWIFT or similar instruction, as
applicable, specifying in reasonable detail the source of such amounts and the
Account or Accounts (including the number of such Account or Accounts) into
which such amounts are to be deposited or (ii) if transferred other than by wire
transfer, to be accompanied by written request of the Borrower or direction of
the Facility Administrative Agent, the Intercreditor Agent, the Note Trustee,
the relevant Collateral Agent or any other Person, as applicable, specifying in
reasonable detail the source of such amounts and the Account or Accounts
(including the number of such Account or Accounts) into which such amounts are
to be deposited.
(b) All amounts transferred to the Offshore Depositary
Bank or either Collateral Agent hereunder by the Borrower, the Facility
Administrative Agent, the Intercreditor Agent, the Note Trustee or any
Collateral Agent shall be made by wire transfer, if in U.S. Dollars, or by
electronic transfer, if in Pesos, in immediately available funds to the Offshore
Depositary Bank or the relevant Collateral Agent, as applicable.
(c) Subject to subsection (d) below, any deposit made
into any Account shall be irrevocable (except if made as a result of manifest
error). The amount of such deposit into
13
any Offshore Account plus any interest or investment earnings thereon shall be
held by the Offshore Depositary Bank and applied, invested and transferred
solely as provided herein and in the Common Agreement.
(d) In the event that the Offshore Collateral Agent or
the Offshore Depositary Bank receives any amount which is inadequately or
incorrectly identified as to the Account into which such amount is to be
deposited, the Offshore Collateral Agent or the Offshore Depositary Bank, as
applicable, promptly shall notify the Intercreditor Agent of such event and
shall request instructions as to the Account into which such amount should be
deposited. In the event that the Onshore Collateral Agent receives any amount
which is inadequately or incorrectly identified as to the Account into which
such amount is to be transferred or receives any amount not required pursuant to
Section 4.07 to be transferred to the Dollar Loss Proceeds Deposit Account, the
Onshore Collateral Agent promptly shall notify the Intercreditor Agent, the
Offshore Collateral Agent and the Offshore Depositary Bank of such event and
shall transfer such amount (in accordance with the procedure described in
Section 4.07) to the Offshore Depositary Bank for deposit into the Dollar
Revenue Account as if such amount had been received by the Offshore Depositary
Bank in accordance with the immediately preceding sentence. The Offshore
Depositary Bank shall deposit such amount in the Dollar Revenue Account until
such time as the Offshore Depositary Bank receives written instructions from the
Intercreditor Agent stating that such amount should be deposited in another
Account in accordance with this Agreement, in which case the Offshore Depositary
Bank, notwithstanding anything to the contrary herein, promptly shall withdraw
such amount from the Dollar Revenue Account and transfer the same to the Account
designated in writing by the Intercreditor Agent.
(e) None of the Offshore Depositary Bank, the Onshore
Collateral Agent or the Offshore Collateral Agent shall have any obligation to
verify the accuracy or the adequacy of the sources or amounts transferred to it
pursuant to this Section 3.09 and shall be entitled to rely on the written
directions accompanying such transfers.
(f) Without limiting the foregoing or anything else
herein, in the event the Intercreditor Agent receives notice of the receipt by
the Offshore Collateral Agent, the Offshore Depositary Bank or the Onshore
Collateral Agent of any amount from or on behalf of CFE, any provider of any
Interest Rate Cap, any Principal Subcontractor (or any provider of any
guarantee, bond, letter of credit or similar document or instrument in respect
of any obligation of any Principal Subcontractor), any Person making any
insurance payment, or any other Person making any deposit into any Account or
making any payment to the Offshore Collateral Agent, the Offshore Depositary
Bank or the Onshore Collateral Agent and such amount is not identified to the
satisfaction of the Intercreditor Agent as to the nature or basis of such
payment, then (i) the Intercreditor Agent may seek certification from any such
Person of the precise nature of and basis for such payment and (ii) until the
Intercreditor Agent has received such certification (or other evidence as may be
acceptable to the Intercreditor Agent) the Intercreditor Agent may refrain from
issuing any instructions to the Offshore Collateral Agent, the Offshore
Depositary Bank or the Onshore Collateral Agent, as applicable, in respect of
such amount.
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Section 3.10 Books of Account; Statements.
(a) The Offshore Depositary Bank shall maintain the books
of account with respect to the Offshore Accounts on a cash basis and record
therein all deposits into and transfers to, from and between the Offshore
Accounts and all investment transactions effected by the Offshore Depositary
Bank, pursuant to Articles IV and VI hereof. The Onshore Collateral Agent shall
maintain the books of account with respect to the Onshore Account on a cash
basis and record therein all deposits into and transfers to and from the Onshore
Account. The Offshore Depositary Bank or the Onshore Collateral Agent, as
applicable, shall make such books of account available during normal business
hours for inspection and audit by the Creditor Representatives and the Borrower
and their respective representatives at their expense upon reasonable prior
notice.
(b) Not later than the fifth (5th) Business Day after the
end of each calendar month, the Offshore Depositary Bank and the Onshore
Collateral Agent shall provide to the Offshore Collateral Agent, the Facility
Administrative Agent, the Intercreditor Agent, the Note Trustee and the Borrower
a statement specifying the amounts held in, and the monthly activity for, each
Account at the close of business on the last day of such calendar month. The
Offshore Depositary Bank and the Onshore Collateral Agent shall promptly send
copies of all statements, confirmations and other correspondence concerning the
Accounts and any other Account Collateral simultaneously to the Offshore
Collateral Agent, the Onshore Collateral Agent, if applicable, the Facility
Administrative Agent, the Intercreditor Agent, the Note Trustee and the
Borrower. Notwithstanding the foregoing, the Borrower and each other party
hereto hereby agrees that any delay in giving, or any failure to give, any
statement, confirmation or other correspondence referenced in this Section
3.10(b) to the Borrower shall not affect the rights of any Secured Party under
this Agreement or any other Transaction Document.
Section 3.11 Written Instructions.
(a) The Intercreditor Agent shall provide specific
written instructions to the Collateral Agents, the Offshore Depositary Bank and
the Note Trustee and any calculations related thereto with respect to this
Article III.
(b) To the extent any Person is required, pursuant to the
terms of this Agreement, to direct any Person obligated to make any payment to
the Borrower (a "Payor") to do so by wire or electrronic transfer but such Payor
at any time is able to make payment but unable to do so by wire transfer, then
the Person required hereunder to provide the payment instructions to the Payor
shall direct such Payor to make payment other than by wire or electronic
transfer, as the case may be, directly to the Offshore Collateral Agent (for any
payment to be made in U.S. Dollars) for transfer by the Offshore Collateral
Agent to the Offshore Depositary Bank and deposit into the relevant Offshore
Account or to the Onshore Collateral Agent (for any payment to be made in Pesos)
for deposit into the Onshore Account.
(c) All instructions from the Intercreditor Agent to the
Offshore Depositary Bank or to either Collateral Agent to transfer any amounts
to or from any Account shall be transmitted by the Intercreditor Agent via
authenticated SWIFT. Subject to the sufficiency of funds to make the transfers
instructed by the Intercreditor Agent pursuant to Article IV, the
15
Offshore Depositary Bank shall, if such instruction is received from the
Intercreditor Agent by 12:00 P.M. (New York City time) on such Business Day,
make the required transfers by 6:00 P.M. (New York City time) on the same
Business Day, and if such instruction is received after 12:00 P.M. (New York
City time), shall make the required transfers by 4:00 P.M. (New York City time)
on the next succeeding Business Day.
(d) All actions taken and instructions given by the
Intercreditor Agent hereunder shall be in accordance with the Financing
Documents.
ARTICLE IV
ALLOCATIONS FROM ACCOUNTS
Section 4.01 Allocations From the Dollar Disbursement Account.
(a) Except as otherwise provided in this Agreement or in
any other Financing Document, amounts held in the Dollar Disbursement Account
shall be applied solely (i) for the payment of amounts payable in respect of the
Loan Documents (except principal) and (ii) for the payment of other Project
Costs (except principal, interest, fees, Other Taxes, Additional Amounts, any
Make-Whole Premium and other amounts payable in respect of the Note Documents).
(b) As a condition precedent to any withdrawal from the
Dollar Disbursement Account for the payment of interest, fees, Taxes, Other
Taxes and other amounts payable in respect of the Loan Documents, the Borrower
shall deliver a Withdrawal Certificate to the Intercreditor Agent (with a copy
to the Note Trustee and the Facility Administrative Agent) no later than 10:00
a.m. on the date of the requested withdrawal. The Intercreditor Agent shall
instruct the Offshore Depositary Bank in writing to make the transfers requested
in such certificate by transferring funds from the Dollar Disbursement Account
to the Facility Administrative Agent. The Facility Administrative Agent, using
such funds, shall pay to each of the Lenders, on behalf of the Borrower, the
amounts due and payable to each of them at such time pursuant to the Loan
Documents, as set forth in such Withdrawal Certificate.
(c) As a condition precedent to any withdrawal from the
Dollar Disbursement Account for the payment of Project Costs (except principal,
interest, fees, Taxes, Other Taxes and other amounts payable in respect of the
Loan Documents and except principal, interest, Other Taxes, Additional Amounts,
fees, any Make-Whole Premium and other amounts payable in respect of the Note
Documents), the Borrower shall deliver a Withdrawal Certificate to the
Intercreditor Agent (with a copy to the Note Trustee and the Facility
Administrative Agent) no later than 10:00 a.m. on the date of the requested
withdrawal. Except as otherwise provided in the immediately preceding sentence,
the Intercreditor Agent shall instruct the Offshore Depositary Bank to make the
transfers requested in such certificate by transferring funds from the Dollar
Disbursement Account directly to the Dollar Construction Account for the payment
of Project Costs (other than amounts payable in respect of the Loan Documents as
described in Section 4.01(b) and amounts payable in respect of the Note
Documents).
16
(d) Notwithstanding the foregoing subsections (a), (b)
and (c) of this Section 4.01, (i) amounts held in the Cap Sub-Account shall be
applied solely for the payment of Debt Service payable in respect of the Loans
Documents and (ii) as a condition precedent to any withdrawal from the Cap
Sub-Account for the payment of interest, fees, Taxes, Other Taxes and other
amounts payable in respect of the Loan Documents, either (x) no later than 10:00
a.m. on the Business Day prior to the date of the withdrawal so requested either
(x) the Borrower shall deliver a Withdrawal Certificate to the Intercreditor
Agent, who shall instruct the Offshore Depositary Bank in writing to make the
transfers requested in such Withdrawal Certificate or (y) no later than 10 a.m.
on any Business Day, the Intercreditor Agent (acting in accordance with written
instructions from the Facility Administrative Agent) may deliver written
instructions to the Offshore Depositary Bank (with a copy to the Borrower) to
make such withdrawal (in each case with a copy to the Note Trustee and, if
applicable, the Facility Administrative Agent). The Offshore Depositary Bank
shall make the transfers so instructed by transferring funds from the Cap
Sub-Account to the Facility Administrative Agent to be applied in accordance
with the Credit Agreement.
Section 4.02 Allocations From the Dollar Revenue Account.
(a) Upon receipt of any payment from CFE described in
Section 3.01(b)(ii) of the Common Agreement (excluding any payment made by CFE
to the Borrower pursuant to Section 26.5 or the final paragraph of Section 27.3
of the Public Works Contract and excluding any portion of the Second Installment
if received by the Borrower, the Intercreditor Agent or the Offshore Collateral
Agent before August 31, 2007), the recipient shall promptly inform the
Intercreditor Agent and the Offshore Collateral Agent in writing of the amount
so received and transfer such amount by wire transfer to the Offshore Depositary
Bank for deposit into the Dollar Revenue Account. Promptly upon receipt of
written notice of the deposit of such amount in the Dollar Revenue Account, the
Intercreditor Agent shall instruct the Offshore Depositary Bank in writing to,
and the Offshore Depositary Bank shall, withdraw and transfer such amount to the
Intercreditor Agent, to be applied in accordance with clauses (ii), (iv) and (v)
of Section 3.01(b) and Section 3.01(c) of the Common Agreement.
(b) Upon receipt of any payment from CFE pursuant to
Section 26.5 or the final paragraph of Section 27.3 of the Public Works
Contract, the recipient shall promptly inform the Intercreditor Agent and the
Offshore Collateral Agent in writing of the amount so received and transfer such
amount by wire transfer to the Offshore Depositary Bank for deposit into the
Dollar Revenue Account. Promptly upon receipt of notice of the deposit of such
amount in the Dollar Revenue Account, the Intercreditor Agent shall instruct the
Offshore Depositary Bank in writing to, and the Offshore Depositary Bank shall,
withdraw and transfer such amount directly to the Dollar Construction Account
for the payment of Project Costs (other than amounts payable in respect of the
Loan Documents and/or the Note Documents).
(c) Upon receipt of any portion of the Second Installment
if received by the Borrower, the Intercreditor Agent or any Collateral Agent
before August 31, 2007, the recipient shall promptly inform the Intercreditor
Agent and the Offshore Collateral Agent in writing of the amount so received and
transfer such amount by wire transfer to the Offshore Depositary Bank for
deposit into the Dollar Revenue Account. Promptly upon receipt of written notice
of the deposit of such amount in the Dollar Revenue Account, the Intercreditor
Agent shall instruct the
17
Offshore Depositary Bank in writing to, and the Offshore Depositary Bank shall,
withdraw and transfer all funds on deposit in the Dollar Revenue Account (other
than the proceeds of any payment from CFE described in Section 3.01(b)(ii) of
the Common Agreement), to the Intercreditor Agent to be applied in accordance
with clauses (iii) and (v) of Section 3.01(b) and Section 3.01(c) of the Common
Agreement.
(d) Upon receipt of any payment (other than any payment
referred to in subsection (a), (b) or (c) above) or other amount in whatever
form and whatever nature received by or for the account of the Borrower which
payment or amount is required to be deposited into the Dollar Revenue Account
pursuant to Section 3.02, the Offshore Depositary Bank shall inform the
Intercreditor Agent and the Offshore Collateral Agent in writing of the amount
so received and cause such amount to be held in the Dollar Revenue Account as
security for the Obligations.
(e) In the event the Offshore Collateral Agent receives
written instructions from the Intercreditor Agent pursuant to Section 3.09(d) to
withdraw from the Dollar Revenue Account and deposit into any other Account any
amounts deposited in the Dollar Revenue Account pursuant to Section 3.09(d), the
Offshore Collateral Agent promptly shall direct the Offshore Depositary Bank to,
and the Offshore Depositary Bank shall, promptly effect such withdrawal and
transfer.
Section 4.03 Allocations from the Dollar Construction Account.
(a) Except as otherwise provided in this Agreement or in
any other Financing Document, amounts held in the Dollar Construction Account
shall be applied solely for the payment of Project Costs (other than amounts
payable in respect of the Loan Documents and/or the Note Documents).
(b) As a condition precedent to any withdrawal from the
Dollar Construction Account on any date, the Borrower shall deliver a Withdrawal
Certificate to the Intercreditor Agent (with a copy to the Note Trustee and the
Facility Administrative Agent) no less than two (2) Business Days prior to the
date of the requested withdrawal. The Intercreditor Agent shall instruct the
Offshore Depositary Bank in writing to make the payments requested in such
certificate by transferring monies from the Dollar Construction Account by wire
transfer directly to the payees set forth in such certificate. The Borrower
hereby agrees that such funds shall be applied exclusively to the payment of, or
reimbursement for, Project Costs currently due and payable by the Borrower.
Section 4.04 Allocations From the Dollar Loss Proceeds Account.
(a) Upon approval by the Intercreditor Agent of a
certificate from a Representative of the Borrower certifying as to the
satisfaction of the applicable requirements and conditions set forth in Section
6.01(d)(v) of the Common Agreement, the Intercreditor Agent shall instruct the
Offshore Depositary Bank in writing to transfer the amount set forth in such
certificate to the payee(s) identified in such certificate.
(b) Upon receipt by the Offshore Collateral Agent of a
written notice from the Intercreditor Agent setting forth the amount of any
casualty insurance proceeds or Taking
18
proceeds then on deposit in the Dollar Loss Proceeds Account that is required to
be applied as a prepayment of the Loans and redemption of the Investor Notes
pursuant to Section 3.01(b)(i) of the Common Agreement, the Offshore Collateral
Agent shall direct the Offshore Depositary Bank to transfer such amount from the
Dollar Loss Proceeds Account to the Intercreditor Agent to be applied first, to
the payment or prepayment of the Loans and redemption (subject to Section
4.04(c) below) of the Investor Notes constituting Funded Debt and second, to the
payment of all other Obligations payable to the Secured Parties in the same
order as set forth in clauses First through Fifth in Section 7.04 of the Common
Agreement.
(c) If the pro rata amount (determined in accordance with
Section 3.01(c) of the Common Agreement) relating under Section 4.04(b) of this
Agreement to the Investor Notes constituting Funded Debt is less than or equal
to U.S.$10,000,000, the Intercreditor Agent shall direct the Offshore Depositary
Bank in writing to transfer such amount from the Dollar Loss Proceeds Account to
the Intercreditor Agent for transfer to the Note Trustee and deposit by the Note
Trustee into the Prepayment Sub-Account (in lieu of the application to the
immediate redemption of the Investor Notes constituting Funded Debt described in
Section 4.04(b) above).
(d) Upon the Intercreditor Agent's receipt of notice of
the deposit into the Dollar Loss Proceeds Deposit Account of any amount paid by
any insurer in respect of fixed costs accruing during or related to any business
interruption (of a "delay", "delay in start-up" or "alop nature"), the
Intercreditor Agent shall direct the Offshore Depositary Bank in writing to (and
the Offshore Depositary Bank shall) withdraw such amount from the Dollar Loss
Proceeds Deposit Account and transfer the same to the Dollar Construction
Account.
(e) Upon the Intercreditor Agent's receipt of notice of
the deposit into the Dollar Loss Proceeds Deposit Account of any amount paid by
any insurer in respect of Debt Service accruing during or related to any
business interruption (of a "delay", "delay in start-up" or "alop nature"), the
Intercreditor Agent shall direct the Offshore Depositary Bank in writing to (and
the Offshore Depositary Bank shall) withdraw such amount from the Dollar Loss
Proceeds Deposit Account and transfer the same to the Dollar DSU Account.
Section 4.05 Payments To Secured Parties.
(a) The Intercreditor Agent shall direct the Offshore
Depositary Bank to transfer to the Intercreditor Agent by wire transfer in
immediately available funds pursuant to the payment instructions supplied by the
Intercreditor Agent in the form of Exhibit A-1 attached hereto an aggregate
amount equal to any amounts to be distributed by the Intercreditor Agent to any
Secured Party pursuant to the Financing Documents. If the amounts required to be
transferred by the Offshore Depositary Bank pursuant to this Section 4.05(a) on
any Business Day have been deposited into the appropriate Offshore Account(s) by
12:00 P.M. (New York City time) on such Business Day, the Intercreditor Agent
shall make the required transfers by 6:00 P.M. (New York City time) on the same
Business Day, and if such amounts are deposited after 12:00 P.M. (New York City
time), the Intercreditor Agent shall make the required transfers by 12:00 P.M.
(New York City time) on the next succeeding Business Day.
(b) The Intercreditor Agent shall pay over to the
Facility Administrative Agent (with respect to any amounts due to the Facility
Administrative Agent or any Lender) and
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to the Note Trustee (with respect to amounts due to the Note Trustee or any Note
Holder) the amount so transferred from the Offshore Depositary Bank pursuant to
Section 4.05(a) above (or, in the event the amounts so transferred shall be
insufficient to pay such amounts in full, shall transfer to each such Person its
pro rata share of the amount received from the Offshore Depositary Bank). Each
payment by the Intercreditor Agent pursuant to this Section 4.05 shall be made
by wire transfer in immediately available funds pursuant to the payment
instructions provided by each such recipient in the form of Exhibit A-2 attached
hereto. If the amounts required to be transferred by the Intercreditor Agent on
any Business Day have been deposited with the Intercreditor Agent by 12:00 P.M.
(New York City time) on such Business Day, the Intercreditor Agent shall make
the required transfers by 6:00 P.M. (New York City time) on the same Business
Day, and if such amounts are deposited after 12:00 P.M. (New York City time),
the Intercreditor Agent shall make the required transfers by 12:00 P.M. (New
York City time) on the next succeeding Business Day.
Section 4.06 Allocations from the Dollar DSU Account.
(a) The Intercreditor Agent (in accordance with Section
4.05 and acting at the written direction of the Facility Administrative Agent
from time to time when so directed) shall instruct the Offshore Depositary Bank
in writing to transfer any amounts on deposit in the Dollar DSU Account
representing proceeds of business interruption (of a "delay", "delay in
start-up" or "alop" nature) insurance attributable to the initial 270 day period
of insured delay or interruption to the Intercreditor Agent for distribution to
the Facility Administrative Agent to be applied to the payment of Debt Service
due and payable in respect of the Loan Documents.
(b) Any amounts on deposit in the Dollar DSU Account
representing proceeds of business interruption (of a "delay", "delay in
start-up" or "alop" nature) insurance attributable to the period from and after
the 271st day through and including the 365th day of insured delay or
interruption shall be, on the same day or next Business Day (in accordance with
Section 4.05 and the written instructions of the Intercreditor Agent) on which
each such amount is deposited into the Dollar DSU Account, transferred to the
Intercreditor Agent for distribution by the Intercreditor Agent to the Facility
Administrative Agent and the Note Trustee ratably in proportion to the aggregate
amount of Debt Service due and payable to the Lenders (in the case of the
Facility Administrative Agent) and the Note Holders (in the case of the Note
Trustee) on the date of such distribution by the Intercreditor Agent (provided
that within one (1) Business Day of the Intercreditor Agent's request therefor
each of the Facility Administrative Agent and the Note Trustee shall certify in
writing to the Intercreditor Agent the amount of Debt Service reasonably
expected to be due and payable on the date of such distribution).
(c) The Intercreditor Agent shall instruct the Offshore
Depositary Bank in writing to transfer any amounts on deposit in the Dollar DSU
Account remaining after having given effect to each of Section 4.06(a) and
Section 4.06(b) by wire transfer to the Intercreditor Agent for distribution as
follows: first, to the Note Trustee up to the aggregate amount equal to
U.S.$1,469,129.44 for transfer to the Noteholder Depositary Bank for deposit
into the Prepayment Sub-Account to be applied in accordance with Section 4.4(b)
of the Noteholder Depositary Agreement or Section 7.04(b) of the Common
Agreement, as applicable, and secondly, to the Facility Administrative Agent in
an amount equal to any remaining amount on
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deposit in the Dollar DSU Account (following such transfer to the Note Trustee)
for distribution to the Lenders in accordance with the terms of the Credit
Agreement.
Section 4.07 Allocations from Onshore Account. At any time there are
any amounts on deposit in the Onshore Account, the Onshore Collateral Agent
shall, not later than the close of business on the same Mexican Business Day, if
on deposit before 2:00 P.M. (Mexico City time) and on the next succeeding
Business Day, if on deposit on or after 2:00 P.M. (Mexico City time) convert all
amounts on deposit in the Onshore Account into U.S. Dollars at the rate of
exchange at which, in accordance with normal banking procedures, the Onshore
Collateral Agent can purchase U.S. Dollars with Pesos. The Onshore Collateral
Agent shall, not later than the close of business on the same Mexican Business
Day, if converted before 2:00 P.M. (Mexico City time) and not later than the
close of business on the next succeeding Mexican Business Day, if converted
after 2:00 P.M. (Mexico City time) transfer the Dollars so obtained in respect
of any casualty insurance proceeds or any award or payment on account of any
Taking payable to the Borrower in Pesos to the Offshore Depositary Bank for
deposit into the Dollars Loss Proceeds Deposit Account and transfer the Dollars
so obtained in respect of any other payment required to be deposited in the
Onshore Account pursuant to Section 3.08 hereof to the Offshore Depositary Bank
for deposit into the Dollar Revenue Account (to be held and allocated in
accordance with Section 3.09(d)).
ARTICLE V
SUBSTITUTION AND EXPIRATION OF LETTERS OF CREDIT
Section 5.01 Substitution. In lieu of holding all or a portion of the
amount on deposit in the appropriate Dollar LC Account in cash or Dollar
Permitted Investments, one or more Disbursement LCs and/or Cost Overrun LCs,
which by their terms require that any drawing thereunder be deposited into the
Dollar Cost Overrun Guarantee Deposit Account or the Dollar Disbursement
Guarantee Deposit Account, as applicable, may be delivered to the Offshore
Collateral Agent or the Intercreditor Agent, as applicable; provided that the
customer or account party under such letter of credit is a Person other than the
Borrower and such Person shall be a party to a Subordination Agreement and
provided further that, concurrent with the delivery thereof, the Borrower
delivers to the Offshore Collateral Agent or the Intercreditor Agent, as
applicable, (i) evidence of the rating by S&P or Moody's on the long-term senior
unsecured indebtedness of the issuer or confirming institution thereof or (ii)
audited financial statements of such issuer or confirming institution for the
most recent fiscal year for which such statements are available and unaudited
financial statements of such issuer or confirming institution for the most
recent fiscal quarter for which such statements are available. Upon delivery of
any such Disbursement LC accompanied either by such evidence of the issuer's or
confirming institution's rating or such financial statements, the Intercreditor
Agent, upon the written request of the Borrower, shall instruct the Offshore
Collateral Agent in writing to release to the Person (provided such Person is a
Person other than the Borrower and such Person is a party to a Subordination
Agreement) delivering such Disbursement LC an aggregate amount of cash (and, if
necessary, liquidate investments, at the written direction of the Borrower) held
in the Dollar Disbursement Guarantee Account equal to the aggregate amount
available to be drawn by the Offshore Collateral Agent or the Intercreditor
Agent, as applicable, under such Disbursement LC for deposit in the Dollar
Disbursement Guarantee Deposit Account. Upon delivery of any such
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Cost Overrun LC accompanied either by the evidence of the issuer's or confirming
institution's rating or the financial statements required pursuant to this
Section 5.01, the Intercreditor Agent, upon the written request of the Borrower,
shall instruct the Offshore Collateral Agent in writing to release to the Person
(provided such Person is a Person other than the Borrower and such Person is a
party to a Subordination Agreement) delivering such Cost Overrun LC an aggregate
amount of cash (and, if necessary, liquidate investments, at the written
direction of the Company) held in the Dollar Cost Overrun Guarantee Account
equal to the aggregate amount available to be drawn by the Offshore Collateral
Agent or the Intercreditor Agent, as applicable, under such Cost Overrun LC for
deposit in the Dollar Cost Overrun Guarantee Deposit Account.
Section 5.02 Expiration. If, as of any day, a Disbursement LC or Cost
Overrun LC has an expiry date which is within thirty (30) days of such date and
the Borrower has not supplied the Offshore Collateral Agent or the Intercreditor
Agent, as applicable, with a replacement Disbursement LC or Cost Overrun LC, as
the case may be, prior to the date which is thirty (30) days prior to such
expiry date, then the Offshore Collateral Agent or the Intercreditor Agent, as
applicable, shall (and is hereby directed to) draw upon such Disbursement LC or
Cost Overrun LC, as the case may be, on or prior to its expiry date and deposit
the amount of such drawing into the Dollar Disbursement Guarantee Deposit
Account or Dollar Cost Overrun Guarantee Deposit Account, as applicable. If, as
of any day, any Performance Guarantee in favor of the Offshore Collateral Agent
or the Intercreditor Agent, as applicable, has an expiry date which is within
thirty (30) days of such date and the Borrower has not supplied the Offshore
Collateral Agent or the Intercreditor Agent, as applicable, with a replacement
Performance Guarantee prior to the date which is thirty (30) days prior to such
expiry date, then the Offshore Collateral Agent, or the Intercreditor Agent, as
applicable, shall (and is hereby directed to) draw upon such Performance
Guarantee to the extent, pursuant to the terms of such Performance Guarantee, it
is entitled to do so, on or prior to its expiry date and deposit the amount of
such drawing into the Dollar Performance Guarantee Deposit Account.
Section 5.03 Release. If at any time the amount of the Cost Overrun
Guarantee is positive and the aggregate balance of the Dollar Disbursement
Guarantee Account is at least equal to U.S.$26,000,000 and no Default or Event
of Default has occurred and is continuing, then
(i) Borrower may request in writing (with the
acknowledgement and consent of each Sponsor) that the Intercreditor
Agent instruct the Offshore Collateral Agent or the Intercreditor
Agent, as applicable, in writing to release Cost Overrun LCs or cash
deposits maintained in lieu thereof in the Dollar Cost Overrun
Guarantee Account if either
(A) the Independent Engineer certifies
that amount of the Dollar Cost Overrun Guarantee is as of the
date of the proposed release equal to or greater than the sum
of any Cost Overrun Amount existing as of such date (following
the determination by the Intercreditor Agent, in consultation
with the Independent Engineer, pursuant to Section 6.01(q) of
the Common Agreement of whether or not a Cost Overrun Amount
exists as of such date and the calculation of any such Cost
Overrun Amount) or
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(B) the Borrower certifies that the
amount requested to be released is not greater than the excess
of (x) the excess of the Accumulated Value over the Required
Works Amount over (y) the aggregate amount of all proceeds of
Senior Debt (other than of Contingency Loans) applied, or to
be applied pursuant to any Notice of Funding that has been
delivered at any time pursuant to the Financing Documents, to
pay Project Costs not included in the Construction Budget; and
(ii) the Offshore Collateral Agent will release
such Cost Overrun LCs or cash deposit in accordance with the written
instructions of the Intercreditor Agent;
provided that the Borrower may not request that the Intercreditor Agent cause
any release of any Cost Overrun LC or cash deposit under this Section 5.03
sooner than three months following any prior request under this Section 5.03.
Section 5.04 Balance. Any reference in this Agreement or in the Common
Agreement to the balance of the Dollar Cost Overrun Guarantee Account, the
Dollar Disbursement Guarantee Account or the amount of funds on deposit in
either such account shall be deemed to include the aggregate amount available to
be drawn by the Intercreditor Agent and the Offshore Collateral Agent under all
Disbursement LCs or Cost Overrun LCs, as applicable, then in such Account and in
full force and effect. Any provision in this Agreement instructing or
authorizing the transfer of funds from any Account shall authorize the
Intercreditor Agent and the Offshore Collateral Agent to (and the Borrower and
Creditors hereby authorize the Intercreditor Agent and the Offshore Collateral
Agent to, and the Borrower shall direct the Intercreditor Agent in writing in
due time to, or, if applicable, to instruct the Offshore Collateral Agent to)
draw upon any and all Disbursement LCs and/or Cost Overrun LCs and/or
Performance Guarantees in favor of the Intercreditor Agent or the Offshore
Collateral Agent in accordance with the terms thereof, and to transfer the
proceeds therefrom, in the same manner and to the same extent as the
Intercreditor Agent or the Offshore Collateral Agent would otherwise draw on
cash or Dollar Permitted Investments on deposit in such Account. Neither the
Intercreditor Agent nor the Offshore Collateral Agent shall be under any
obligation to determine or verify whether the issuer or confirming institution
of any Disbursement LC or Cost Overrun LC is an Acceptable LC Provider or
whether a Disbursement LC or Cost Overrun LC or any Performance Guarantee in
favor of the Intercreditor Agent or the Offshore Collateral Agent constitutes an
acceptable Disbursement LC, Cost Overrun LC or Performance Guarantee, as
applicable.
ARTICLE VI
INVESTMENTS AND VALUATION
Section 6.01 Investments.
(a) Prior to the delivery to the Offshore Depositary Bank
of a Notice of Exclusive Control, any amounts held by the Offshore Depositary
Bank in any Specified Offshore Deposit Account shall be invested by the Offshore
Depositary Bank from time to time, at the risk and expense of the Borrower,
solely in such Dollar Permitted Investments as the Borrower or its
23
designated representative, shall specifically direct in writing. Any such Dollar
Permitted Investments shall be credited by the Offshore Depositary Bank to the
corresponding Offshore Securities Account. The Borrower or its designated
representative, as the case may be, shall select Dollar Permitted Investments
having such maturities as shall cause the Dollar Loss Proceeds Account, the
Dollar Cost Overrun Guarantee Account, the Dollar Disbursement Guarantee Account
and the Dollar Performance Guarantee Account to have a cash balance as of any
day sufficient to cover the transfers to be made from such Offshore Account on
such day in accordance with this Agreement. Upon delivery to the Offshore
Depositary Bank of a Notice of Exclusive Control and until written revocation of
such notice is delivered to the Offshore Depositary Bank by the Offshore
Collateral Agent, any amounts held by the Offshore Depositary Bank in any
Specified Offshore Deposit Account shall be invested by the Offshore Depositary
Bank from time to time, solely in such Dollar Permitted Investments (and
credited by the Offshore Depositary Bank to the corresponding Offshore
Securities Account) as the Offshore Collateral Agent, acting upon the
instructions of the Intercreditor Agent, shall direct.
(b) In the event that the cash balance in any Specified
Offshore Deposit Account is as of any day insufficient to cover the transfers to
be made from such Specified Offshore Deposit Account on such day, the
Intercreditor Agent shall direct the Offshore Depositary Bank in writing to sell
or liquidate the Dollar Permitted Investments held in the corresponding Offshore
Securities Account (without regard to maturity date) in such manner as may be
necessary in order to obtain cash at least sufficient to make such transfers and
to pay any expenses and charges incurred in connection with effecting any such
sale or liquidation, which expenses and charges the Offshore Depositary Bank
shall be authorized to pay with cash on deposit in such Specified Offshore
Deposit Account. None of the Offshore Depositary Bank, the Offshore Collateral
Agent or the Intercreditor Agent shall be liable to any Person for any loss
suffered because of any such sale or liquidation other than by reason of its
willful misconduct or gross negligence.
Section 6.02 Income or Gain. Any interest, investment income or gain
realized as a result of any Dollar Permitted Investments held in or credited to
the Offshore Securities Accounts in excess of any amount required to be on
deposit therein (net of the expenses incurred in connection with making such
Dollar Permitted Investments) shall be held in or credited to the applicable
Offshore Securities Account and reinvested as provided herein until transferred
or disbursed pursuant to the terms hereof. None of the Offshore Depositary Bank,
the Offshore Collateral Agent or the Intercreditor Agent shall have any
liability for any loss resulting from any such Dollar Permitted Investment other
than by reason of its willful misconduct or gross negligence.
Section 6.03 Value. Cash and securities on deposit from time to time in
the Offshore Accounts shall be valued by the Offshore Depositary Bank, as the
case may be, as follows:
(a) cash shall be valued at the face amount thereof; and
(b) securities shall be valued at market value thereof.
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Section 6.04 Taxes. It is acknowledged by the parties hereto that all
interest and other investment income earned on amounts on deposit in or credited
to the Accounts for Federal, state and local income tax purposes shall be
attributed to the Borrower. The Borrower shall be responsible for determining
any requirements for paying taxes or reporting or withholding any payments for
tax purposes hereunder. The Borrower shall prepare and file all tax information
required with respect to the Accounts. The Borrower agrees to indemnify and hold
each of the Offshore Depositary Bank and the Onshore Collateral Agent harmless
against all liability for tax withholding and/or reporting for any payments.
Such indemnities shall survive the termination or discharge of this Agreement or
resignation of the Offshore Depositary Bank and the Onshore Collateral Agent.
Neither the Offshore Depositary Bank nor the Onshore Collateral Agent shall have
any obligation with respect to the making of or the reporting of any payments
for tax purposes other than to the extent it is provided with monies and or the
reports in respect thereof.
ARTICLE VII
RIGHTS, DUTIES AND POWERS OF THE OFFSHORE DEPOSITARY BANK
Section 7.01 Appointment of Offshore Depositary Bank. The Borrower and
each of the Secured Parties hereby appoint Banco Santander Central Hispano,
S.A., New York Branch, to act as the Offshore Depositary Bank under this
Agreement, with such powers as are expressly delegated to the Offshore
Depositary Bank by the terms of this Agreement and the UCC, and Banco Santander
Central Hispano, S.A., New York Branch hereby accepts such appointment pursuant
to the terms of this Agreement.
Section 7.02 Rights of Offshore Depositary Bank.
(a) The Offshore Depositary Bank undertakes to perform
such duties and only such duties as are specifically set forth in this Agreement
or the UCC, as expressly modified by this Agreement, and no implied covenants or
obligations shall be read into this Agreement against the Offshore Depositary
Bank; and as to any matters not expressly provided for by this Agreement, the
Offshore Depositary Bank shall not be required to take any action or exercise
any discretion, but, subject to Sections 7.02(d), 7.02(e) and 7.02(f) hereof,
shall be required to act or to refrain from acting upon instructions of the
Offshore Collateral Agent or the Intercreditor Agent and shall in all such cases
be fully protected in acting, or in refraining from acting, hereunder in
accordance with the instructions of the Offshore Collateral Agent or the
Intercreditor Agent.
(b) The Offshore Collateral Agent, the Borrower, the
Secured Parties and the Offshore Depositary Bank agree, with respect to the
Offshore Accounts as follows: (i) with reference to Section 8-504 of the UCC,
the Offshore Depositary Bank shall credit to the Offshore Accounts security
entitlements to any financial asset purported to be credited to the Offshore
Depositary Bank pursuant to applicable law, (ii) with reference to Section 8-505
of the UCC, the Offshore Depositary Bank shall distribute any payments or other
distributions actually received by the Offshore Depositary Bank with respect to
such security entitlements in accordance with this Agreement, and (iii) with
reference to Section 8-506 of the UCC, the Offshore Depositary Bank shall
exercise rights with respect to the financial assets only if directed to do so
by
25
subsequent receipt of an entitlement order complying with Section 8-507 of the
UCC from the Offshore Collateral Agent or the Borrower and then only to the
extent of such instructions. In further connection to the Offshore Depositary
Bank's duties with respect to clause (i) of the immediately preceding sentence,
the Offshore Collateral Agent, the Borrower and the Secured Parties agree that
the Offshore Depositary Bank shall have satisfied its duties thereunder and
under Section 8-504 of the UCC so long as the Offshore Depositary Bank credits
as a security entitlement to the applicable party in accordance with this
Agreement whatever rights the Offshore Depositary Bank purportedly has in the
financial assets credited to the Offshore Depositary Bank but that the Offshore
Depositary Bank shall have no duty or responsibility to any person or entity for
ensuring that applicable law has been complied with to transfer or create a
security interest in any right, title or interest in or to, or in any right
whatsoever in and to, any financial asset purportedly transferred to the
Offshore Depositary Bank or in which any security interest in any such financial
assets has purportedly been transferred or assigned to the Offshore Depositary
Bank; all such responsibility and liability shall be retained by the Borrower
pursuant to the terms of this Agreement. With respect to Section 8-505(a) of the
UCC, the sole responsibility of the Offshore Depositary Bank with respect to
obtaining payments or distributions on any financial asset is to notify the
Borrower and the Offshore Collateral Agent if in the actual knowledge of the
Offshore Depositary Bank any such payment or distribution has not been received
by the Offshore Depositary Bank.
(c) The Offshore Depositary Bank shall be entitled to
rely upon any certificate, notice or other document (including any cable,
telegram, telecopy or telex) believed by it to be genuine and to have been
signed or sent by or on behalf of the Borrower, the Offshore Collateral Agent,
the Facility Administrative Agent, the Note Trustee or the Intercreditor Agent
and upon advice and statements of legal counsel and other experts selected by
the Offshore Depositary Bank.
(d) No provision of this Agreement shall be construed to
relieve the Offshore Depositary Bank from liability for its own grossly
negligent action, its own grossly negligent failure to act, or its own willful
misconduct, except that to the extent, but only to the extent, the following
limitations on the Offshore Depositary Bank's liability would not prevent the
Offshore Depositary Bank from being a "Securities Intermediary" under the UCC,
the following limitations shall apply:
(i) the Offshore Depositary Bank shall not be
liable for any error of judgment of an officer of the Offshore Depositary Bank,
unless it shall be proved that such officer of the Offshore Depositary Bank was
grossly negligent in ascertaining the pertinent facts;
(ii) the Offshore Depositary Bank shall not be
liable with respect to any action taken or omitted to be taken by it in good
faith in accordance with the direction of the Offshore Collateral Agent relating
to the time, method and place of conducting any proceeding for any remedy
available to the Offshore Depositary Bank, or exercising any trust or power
conferred upon the Offshore Depositary Bank, under this Agreement;
(iii) the Offshore Depositary Bank shall not be
liable for any loss of profits, consequential, incidental, punitive, exemplary
or indirect damages even if the Offshore
26
Depositary Bank has been advised of the possibility thereof and regardless of
the form of action in which such damages are sought;
(iv) the Offshore Depositary Bank shall not be
deemed to have knowledge of the existence of any Default or Event of Default
until such time as it has received notification of such Default or Event of
Default from the Offshore Collateral Agent; and
(v) no provision of this Agreement shall require
the Offshore Depositary Bank to expend or risk its own funds or otherwise incur
any financial liability in the performance of any of its duties hereunder, or in
the exercise of any of its rights or powers, if it shall have reasonable grounds
for believing that repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it.
(e) The Offshore Depositary Bank shall be under no
obligation to institute any suit, or to take any remedial proceeding under this
Agreement, or to enter any appearance or in any way defend in any suit in which
it may be made defendant, or in the enforcement of any rights or powers
hereunder, if the Offshore Depositary Bank reasonably believes that it will not
be adequately indemnified against any and all costs and expenses, outlays, and
counsel fees and other reasonable disbursements and against all liability,
except liability that is adjudicated to have resulted from its gross negligence
or willful misconduct, in connection with any actions so taken.
(f) Whether or not therein expressly so provided, every
provision of this Agreement relating to the conduct or affecting the eligibility
of or affording protection to the Offshore Depositary Bank shall be subject to
the provisions of this Section 7.02.
Section 7.03 Resignation and Removal of Offshore Depositary Bank.
(a) The Offshore Collateral Agent may remove the Offshore
Depositary Bank upon thirty (30) days' prior written notice to the Borrower and
the Offshore Depositary Bank. The Offshore Depositary Bank shall have the right
to resign upon thirty (30) days' prior written notice to the Borrower and the
Offshore Collateral Agent. Upon any such removal or resignation of the Offshore
Depositary Bank to act hereunder, the Offshore Collateral Agent shall appoint a
successor Offshore Depositary Bank indicated in writing by the Intercreditor
Agent. Notwithstanding the foregoing, no resignation, removal or replacement of
the Offshore Depositary Bank shall be effective until a successor Offshore
Depositary Bank has been appointed and has agreed in a manner reasonably
satisfactory to the Offshore Collateral Agent to act as Offshore Depositary Bank
hereunder.
(b) If at any time the Offshore Depositary Bank, the
Offshore Collateral Agent and the Onshore Collateral Agent cease to be
Affiliates of each other, the Intercreditor Agent shall have the right to remove
the Offshore Depositary Bank upon thirty (30) days' prior written notice to the
Borrower and the Offshore Depositary Bank, with any such removal to become
effective only upon the appointment of a successor Offshore Depositary Bank.
Upon the removal of the Offshore Depositary Bank under this Section 7.03(b), the
Intercreditor Agent may appoint a successor agent for the Secured Parties.
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ARTICLE VIII
INDEMNIFICATION
Section 8.01 Indemnification From Borrower. The Borrower agrees to
indemnify and hold the Offshore Depositary Bank, the Collateral Agents, the
Facility Administrative Agent, the Intercreditor Agent, the Note Trustee and
each of their respective officers, directors, employees, agents, professional
advisors and affiliates (each an "Indemnified Person") harmless from and against
any and all liabilities (including reasonable attorney fees and expenses),
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind whatsoever which may at any time be
imposed on, incurred by or asserted against any Indemnified Person, in any way
relating to or arising out of this Agreement, or any investigation, litigation
or other proceeding relating to this Agreement (including, without limitation,
enforcement of this Agreement); provided that the Borrower shall not be liable
for the payment of any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
incurred by or asserted against any Indemnified Person to the extent that any of
the foregoing result from such Indemnified Person's gross negligence or willful
misconduct. The indemnity obligations of the Borrower contained in this Article
VIII shall continue in full force and effect notwithstanding full payment of the
Loans and/or redemption of the Notes under the Financing Documents and all of
the other Obligations and notwithstanding the discharge thereof or the
satisfaction and discharge or other termination of this Agreement or any related
document or agreement.
ARTICLE IX
MISCELLANEOUS
Section 9.01 Agreement for Benefit of Parties Hereto. Nothing in this
Agreement, express or implied, is intended or shall be construed to confer upon,
or to give to, any person other than the parties hereto and their respective
successors and assigns, any right, remedy or claim under or by reason of this
Agreement or any covenant, condition or stipulation hereof; and the covenants,
stipulations and agreements contained in this Agreement are and shall be for the
sole and exclusive benefit of the parties hereto and their respective successors
and assigns.
Section 9.02 No Warranties. Except as otherwise expressly provided
herein, the Secured Parties have not made to each other nor do they hereby or
otherwise make to each other any warranties, express or implied, nor do they
assume any liability to each other with respect to the enforceability, validity,
value or collectability of the Collateral (or any portion thereof). No Secured
Party shall be liable to any other Secured Party for any action or failure to
act or any error of judgment, negligence, or mistake, or oversight whatsoever on
the part of any Secured Party or any Secured Party's agents, officers, employees
or attorneys with respect to any transaction relating to any of the notes or
agreements evidencing or entered into with respect to any of the Obligations or
any security therefor.
Section 9.03 Reimbursement of Expenses. The Borrower will, within five
(5) Business Days, upon demand pay to the Collateral Agents and the Offshore
Depositary Bank the amount of any and all reasonable fees and expenses,
including the reasonable fees and expenses
28
of its counsel (and any local counsel) and of any experts and agents (provided,
however, that, so long as no Event of Default shall have occurred, the Onshore
Collateral Agent, the Offshore Collateral Agent and the Offshore Depositary Bank
shall not be entitled to the payment of fees of any expert or agent in an amount
greater than U.S.$10,000 unless the payment of such fees has been approved in
writing by the Borrower prior to the hiring of such expert or agent), which the
Offshore Collateral Agent, the Onshore Collateral Agent or the Offshore
Depositary Bank may incur in connection with (a) the administration of this
Agreement, (b) the custody or preservation of, or the sale of, collection from,
or other realization upon, any of the Account Collateral, (c) the exercise or
enforcement (whether through negotiations, legal proceedings or otherwise) of
any of the rights of the Collateral Agents, the Offshore Depositary Bank or the
Secured Parties or (d) the failure by the Borrower to perform or observe any of
the provisions hereof.
Section 9.04 Reinstatement. This Agreement shall continue to be
effective or be reinstated, as the case may be, if at any time any amount
received by the Intercreditor Agent, Facility Administrative Agent, the Note
Trustee, the Collateral Agents, the Offshore Depositary Bank or any other
Secured Party in respect of the Obligations is rescinded or must otherwise be
restored or returned by the Intercreditor Agent, the Facility Administrative
Agent, the Note Trustee, the Collateral Agents or any other Secured Party upon
the insolvency, bankruptcy, dissolution, liquidation or reorganization of the
Borrower or upon the appointment of any intervenor or conservator of, or trustee
or similar official for, the Borrower or any substantial part of its assets, or
otherwise, all as though such payments had not been made.
Section 9.05 Severability. In case any one or more of the provisions
contained in this Agreement shall be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained herein shall not in any way be affected and/or impaired thereby.
Section 9.06 Notices. All notices or other communications hereunder
shall be given in the manner set forth in the Common Agreement (a) to the
Borrower, the Facility Administrative Agent, the Intercreditor Agent, the Note
Trustee and the Collateral Agents, at the addresses specified in the Common
Agreement, and (b) to the Offshore Depositary Bank, at the address specified
under its name on the signature pages hereto, and (c) as to any party, at such
other address as shall be designated by such party in a written notice to each
other party hereto.
Section 9.07 Successors and Assigns. Whenever in this Agreement any of
the parties hereto is named or referred to, the successors and assigns of such
party shall be deemed to be included and all covenants, promises and agreements
in this Agreement by or on behalf of the respective parties hereto shall bind
and inure to the benefit of the respective successors and assigns of such
parties, whether so expressed or not.
Section 9.08 Counterparts. This Agreement may be executed in any number
of counterparts, each executed counterpart constituting an original but all
counterparts together constituting only one instrument.
29
Section 9.09 Governing Law; Submission to Jurisdiction.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
(b) Each of the parties hereto hereby (i) expressly and
irrevocably submits and consents to the jurisdiction of any State or Federal
court located in the Borough of Manhattan, and any appellate court having
jurisdiction over appeals from any of such courts, in any action to resolve any
controversy or claim arising out of this Agreement, (ii) agrees that all claims
in such action may be decided in any such court, (iii) irrevocably waives, to
the fullest extent it may effectively do so, the defense of an inconvenient
forum, (iv) irrevocably and unconditionally waives, to the fullest extent it may
effectively do so, any objection that it may now or hereafter have to the laying
of venue of any suit, action or proceeding arising out of or relating to this
Agreement in any such court, (v) to the extent the Borrower has or hereafter may
acquire any immunity (sovereignty or otherwise) from any legal action, suit or
proceeding, from jurisdiction of any court or from set-off or any legal process
(whether service or notice, attachment in aid or otherwise) with respect to
itself or any of its property, the Borrower irrevocably waives and agrees not to
plead or claim such immunity in respect of its Obligations under this Agreement,
and (vi) consents to the service of process by registered or certified mail (or
any substantially similar form of mail), postage prepaid and return receipt
requested, or by personal service within or without the State of New York, at
the address for notices referred to in Section 9.06. A final judgment in any
such action shall be conclusive and may be enforced in other jurisdictions.
Furthermore, each party hereby submits to the competent courts of its corporate
domicile in any action or proceeding against it in connection with this
Agreement. Nothing herein shall affect the right of any party to bring legal
action or proceedings in any other competent jurisdiction.
(c) The Borrower hereby irrevocably appoints CT
Corporation System (the "Process Agent"), with an office on the date hereof at
111 Eighth Avenue, New York, New York 10011, as its agent to receive on its
behalf and on behalf of its properties, service of process that may be served in
any such action. Service upon the Process Agent shall be deemed to be personal
service on the Borrower and shall be legal and binding upon the Borrower for all
purposes notwithstanding any failure to mail copies of such legal process to the
Borrower, or any failure on the part of the Borrower to receive the same. The
Borrower agrees that it shall at all times continuously maintain an agent to
receive service of process in the State of New York on behalf of itself and its
properties, and, in the event that for any reason the Process Agent shall not
serve as agent for the Borrower to receive service of process in the State of
New York on its behalf, the Borrower shall promptly appoint a successor
satisfactory to the Intercreditor Agent so to serve, advise the Intercreditor
Agent thereof, and deliver to the Intercreditor Agent evidence in writing of the
successor agent's acceptance of such appointment. Nothing herein shall affect
the right of any party to effect service of process in any other manner
permitted by applicable Law.
(d) To the extent the Borrower may, in any action or
proceeding arising out of or relating to this Agreement brought in Mexico or
elsewhere, be entitled under applicable Law to require or claim that any Secured
Party post security for costs or take similar action, the Borrower hereby
irrevocably waives and agrees not to claim the benefit of such entitlement.
30
Section 9.10 WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY NOTE DOCUMENT OR
ANY LOAN DOCUMENT, OR ANY OTHER INSTRUMENT OR DOCUMENT DELIVERED HEREUNDER OR
THEREUNDER.
Section 9.11 No Impairments of Other Rights. Nothing in this Agreement
is intended or shall be construed to impair, diminish or otherwise adversely
affect any other rights the Secured Parties may have or may obtain against the
Borrower.
Section 9.12 Amendment; Waiver. No amendment or waiver of any provision
of this Agreement shall be effective unless the same shall be in writing and
effected in accordance with the provisions of the Intercreditor Agreement and
Section 11.01 of the Common Agreement and signed by the parties hereto and any
such waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given. No delay on the part of any Secured Party
in the exercise of any right, power or remedy shall operate as a waiver thereof,
nor shall any single or partial waiver by such Secured Party of any right, power
or remedy preclude any further exercise thereof, or the exercise of any other
right, power or remedy. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.
Section 9.13 Incumbency Certificates; Authorized Persons; Reliance on
Certificates.
(a) The Borrower shall furnish to the Intercreditor Agent
on or prior to the Closing Date and from time to time thereafter as may be
reasonably requested by the Intercreditor Agent duly executed incumbency
certificates showing the names, titles and specimen signatures of the persons
authorized on behalf of such party to take the actions and give the
certificates, notifications, approvals and payment instructions required by this
Agreement.
(b) The Intercreditor Agent shall be entitled to rely
conclusively upon the certificates delivered from time to time by
Representatives of the Borrower as to the names, incumbency, authority and
signatures of the respective persons named therein until such time as the
Intercreditor Agent shall have received a replacement certificate, in form
acceptable to the Intercreditor Agent, from a Representative of the Borrower
identified to the Intercreditor Agent as having authority to deliver such
certificate, setting forth the names and true signatures of the officers and
other representatives of such Person thereafter authorized to act on behalf of
the Borrower.
Section 9.14 Headings. The headings of the various articles, sections
and paragraphs of this Agreement are for convenience of reference only, do not
constitute a part hereof and shall not affect the meaning or construction of any
provision hereof.
Section 9.15 Entire Agreement. This Agreement, including the documents
referred to herein, embodies the entire agreement and understanding of the
parties hereto and supersedes all prior agreements and understandings of the
parties hereto relating to the subject matter herein contained.
31
Section 9.16 Incorporation by Reference. The rights, benefits,
privileges and protections afforded to each of the Collateral Agents and the
Intercreditor Agent contained within the Common Agreement are hereby expressly
incorporated herein by reference thereto. Any provisions of the Common Agreement
(together with definitions as used therein and the ancillary provisions related
thereto) that are incorporated by reference herein shall be incorporated herein,
mutatis mutandis.
Section 9.17 Conflicting Terms. To the extent a term or provision of
this Agreement conflicts with the Common Agreement and is not dealt with more
specifically herein, the Common Agreement shall control with respect to such
term or provision.
32
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their duly authorized officers, all as of the date first above
written.
CONSTRUCTORA INTERNACIONAL DE
INFRAESTRUCTURA, S.A. DE C.V., as Borrower
By: ___________________________________
Name: ___________________________________
Title:
WESTLB AG, NEW YORK BRANCH, as Facility
Administrative Agent
By: ___________________________________
Name: Jared Brenner
Title: Director
By: ___________________________________
Name: Susana Vivares
Title: Associate Director
BANCO SANTANDER CENTRAL HISPANO,
S.A., NEW YORK BRANCH, as Offshore
Collateral Agent
By: ___________________________________
Name:
Title:
By: ___________________________________
Name:
Title:
33
BANCO SANTANDER MEXICANO, S.A.,
as Onshore Collateral Agent
By: ___________________________________
Name:
Title:
By: ___________________________________
Name:
Title:
WESTLB AG, NEW YORK BRANCH, as
Intercreditor Agent
By: ___________________________________
Name: Jared Brenner
Title: Director
By: ___________________________________
Name: Susana Vivares
Title: Associate Director
CITIBANK N.A., as Note Trustee
By: ___________________________________
Name:
Title:
By: ___________________________________
Name:
Title:
BANCO SANTANDER CENTRAL HISPANO, S.A.,
NEW YORK BRANCH, as Offshore
Depositary Bank
By: ___________________________________
Name:
Title:
By: ___________________________________
Name:
Title:
34
Address for Notices:
45 East 53rd Street
New York, New York 10022
Attention: Ligia Castro
Telephone: 1 (212) 350-3677
Telecopier: 1 (212) 350-3647
35
EXHIBIT A-1 TO THE
DEPOSITARY AGREEMENT
FORM OF PAYMENT INSTRUCTIONS
Payment to be made to:
WestLB AG, New York Branch,
as Intercreditor Agent
1211 Avenue of the Americas
New York, New York 10036
ABA No.:
Reference: Constructora Internacional de Infraestructura, S.A. de C.V.
Account No.:
Attention:
36
EXHIBIT A-2 TO THE
DEPOSITARY AGREEMENT
FORM OF PAYMENT INSTRUCTIONS
Payment to be made to:
[NAME]
[ADDRESS]
ABA No.:
Reference: Constructora Internacional de Infraestructura, S.A. de C.V.
Account No.:
Attention:
A-1
EXHIBIT B TO THE
DEPOSITARY AGREEMENT
FORM OF NOTICE OF EXCLUSIVE CONTROL
[Letterhead of the Offshore Collateral Agent]
[DATE]
WestLB AG, New York Branch,
as Intercreditor Agent
1211 Avenue of the Americas
New York, New York 10036
Attention: Jared Brenner
Re: Notice of Exclusive Control pursuant to that certain
Depositary Agreement, dated as of February 26, 2004 (as such
agreement may be amended, modified or supplemented from time
to time, the "Depositary Agreement"), by and among
Constructora Internacional de Infraestructura, S.A. de C.V.,
Banco Santander Central Hispano, S.A., New York Branch, as
Offshore Collateral Agent, Banco Santander Mexicano, S.A., as
Onshore Collateral Agent, WestLB AG, New York Branch, as
Facility Administrative Agent, WestLB AG, New York Branch, as
Intercreditor Agent, Banco Santander Central Hispano, S.A.,
New York Branch, as Offshore Depositary Bank and Citibank,
N.A., as Note Trustee (terms used but not defined herein have
the meanings assigned thereto in the Depositary Agreement)
Ladies and Gentlemen:
As referenced in the Depositary Agreement, the undersigned hereby gives
you notice of our exclusive control over the Offshore Accounts and all financial
assets credited thereto or carried therein. You are hereby instructed not to
accept any directions, instructions or entitlement orders with respect to any of
the Offshore Accounts or any financial assets credited thereto or carried
therein from any Person other than the undersigned, unless this notice is
revoked in writing by the undersigned or otherwise ordered by a court of
competent jurisdiction.
You are instructed to deliver a copy of this notice by facsimile
transmission to the Borrower.
B-1
Very truly yours,
BANCO SANTANDER CENTRAL HISPANO,
S.A., NEW YORK BRANCH,
as Offshore Collateral Agent
By: _______________________________
Name:
Title:
B-2
EXHIBIT C TO THE
DEPOSITARY AGREEMENT
FORM OF WITHDRAWAL CERTIFICATE
[DATE]
WestLB AG, New York Branch,
as Intercreditor Agent
1211 Avenue of the Americas
New York, New York 10036
Attention: Jared Brenner
Ladies and Gentlemen:
Reference is made to the Depositary Agreement, dated as of February 26,
2004 (as such agreement may be amended, modified or supplemented from time to
time, the "Depositary Agreement"), by and among Constructora Internacional de
Infraestructura, S.A. de C.V. (the "Borrower"), Banco Santander Central Hispano,
S.A., New York Branch, as Offshore Collateral Agent, Banco Santander Mexicano,
S.A., as Onshore Collateral Agent, WestLB AG, New York Branch, as Facility
Administrative Agent, WestLB AG, New York Branch, as Intercreditor Agent, Banco
Santander Central Hispano, S.A., New York Branch, as Offshore Depositary Bank
and Citibank, N.A., as Note Trustee (terms used but not defined herein having
the meanings assigned thereto in the Depositary Agreement).
I. WITHDRAWALS AND TRANSFERS
The Borrower hereby requests that the following withdrawals and
transfers be made on [_____], 200_:
A. From the Dollar Disbursement Account:
1. Pursuant to Section 4.01(b) of the Depositary
Agreement, a withdrawal from the Dollar Disbursement Account in an
aggregate amount equal to U.S.$[________] and transfer of such funds to
the Facility Administrative Agent in accordance with the following wire
instructions: [INSERT]; and
2. Pursuant to Section 4.01(c) of the Depositary
Agreement, a withdrawal from the Dollar Disbursement Account in an
aggregate amount equal to U.S.$[________] and transfer of such funds to
the Dollar Construction Account; and
3. Pursuant to Section 4.01(d) of the Depositary
Agreement, a withdrawal from the Cap Sub-Account in an aggregate amount
equal to U.S.$[________] and transfer of such funds to the Facility
Administrative Agent in accordance with the following wire
instructions: [INSERT].
C-1
B. From the Dollar Construction Account:
Pursuant to Section 4.03(b) of the Depositary Agreement, a withdrawal
from the Dollar Construction Account in an aggregate amount equal to
U.S.$[_______] and transfer of such funds as follows:
Name Amount Payment Instructions
- ----- ------ --------------------
[Account No.__]
II. CERTIFICATIONS
In connection with each of the foregoing withdrawals and transfers, the Borrower
hereby certifies to the Offshore Depositary Bank as follows:
1. No Notice of Exclusive Control (which has not been revoked by
the Offshore Collateral Agent) has been delivered under the
Depositary Agreement as of the date hereof.
In addition, in connection with each of the foregoing withdrawals and transfers
effected pursuant to Section 4.01(c) and Section 4.03(b) of the Depositary
Agreement, the Borrower hereby certifies to the Offshore Depositary Bank as
follows:
1. The Project Costs to be paid with funds withdrawn pursuant to
the Depositary Agreement, and the payees set forth above with
respect thereto, are as set forth below, together with an
accurate description of the work performed, services rendered
or materials, equipment or supplies delivered for which such
payment was (in the case of amounts to be reimbursed to the
Borrower) or is to be made:
REMIT TO: WORK PERFORMED: AMOUNT:
2. The Borrower has reviewed the work performed, services
rendered and materials, equipment or supplies delivered for
which funds are requested to be withdrawn pursuant to the
Depositary Agreement, and the amounts that have been paid (in
the case of amounts to be reimbursed to the Borrower) or are
to be paid are proper (and, in the case of payments being made
to any Principal Subcontractor, are being made in accordance
with the provisions of the applicable Principal Subcontract).
3. Copies of all invoices for amounts to be withdrawn pursuant to
the Depositary Agreement equal to or in excess of U.S.$150,000
(or the equivalent thereof in any other currency) are attached
hereto, and such copies are true, correct and complete.
C-2
Very truly yours,
CONSTRUCTORA INTERNACIONAL DE
INFRAESTRUCTURA, S.A. DE C.V.
By:________________________________
Name:
Title:
cc: WestLB AG, New York Branch, as Facility Administrative Agent
Citibank, N.A., as Note Trustee
C-3