EXHIBIT 4.10
TFM,
S.A. de C.V.
as Issuer,
GRUPO
TRANSPORTACION FERROVIARIA MEXICANA, S.A. de C.V.
as Guarantor,
and
as Trustee,
and
BANKERS TRUST LUXEMBOURG S.A.,
as Paying Agent
Dated as of June 16, 1997
10¼% Senior Notes due 2007
CROSS-REFERENCE TABLE
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TIA Sections |
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Indenture Sections |
§ 310
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(a)(l)
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7.10 |
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(a)(2)
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7.10 |
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(b)
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7.03; 7.08 |
§ 311
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7.03 |
§ 3l3
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(a)
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7 06 |
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(c)
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7.05; 7.06 |
§ 314
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(a)
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4.18; 13.02 |
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(a)(4)
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1.01 “Officers’
Certificate” |
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(c)(1)
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13.03 |
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(c)(2)
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13.03 |
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(e)
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1.01 “Officers’ Certificate.”
“Opinion of Counsel” |
§ 315
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(a)-(d)
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7.02 |
§ 316
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(a)
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6.06 |
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(b)
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6.07 |
§ 317
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(a)(l)
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6.08 |
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(a)(2)
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6.09 |
§ 318
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(a)
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13.01 |
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(c)
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13.01 |
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Note: |
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The Cross-Reference Table shall not for any purpose be deemed to be a
part of the Indenture. |
TABLE OF CONTENTS
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Page |
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RECITALS OF THE COMPANY |
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1 |
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ARTICLE ONE
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DEFINITIONS AND INCORPORATION BY REFERENCE
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SECTION 1.01. Definitions |
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2 |
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SECTION 1.02. Incorporation by Reference of Trust Indenture Act |
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25 |
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SECTION 1.03. Rules of Construction |
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26 |
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ARTICLE TWO
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THE SECURITIES
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SECTION 2.01. Form and Dating |
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26 |
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SECTION 2.02. Restrictive Legends |
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28 |
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SECTION 2.03. Execution, Authentication and Denominations |
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30 |
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SECTION 2.04. Registrar and Paying Agent |
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31 |
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SECTION 2.05. Paying Agent to Hold Money in Trust |
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32 |
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SECTION 2.06. Transfer and Exchange |
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33 |
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SECTION
2.07. Book-Entry Provisions for Global Securities |
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33 |
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SECTION 2.08. Special Transfer Provisions |
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35 |
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SECTION 2.09. Replacement Securities |
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39 |
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SECTION 2.10. Outstanding Securities |
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39 |
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SECTION 2.11. Temporary Securities |
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40 |
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SECTION 2.12. Cancellation |
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40 |
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SECTION 2.13. CUSIP Numbers |
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41 |
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SECTION 2.14. Defaulted Interest |
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41 |
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SECTION 2.15. Issuance of Additional Securities |
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41 |
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ARTICLE THREE
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REDEMPTION
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SECTION 3.01. Mandatory Redemption |
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41 |
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SECTION 3.02. Redemption for Changes in Withholding Taxes |
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42 |
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SECTION 3.03. Notices to Trustee |
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42 |
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SECTION 3.04. Selection of Securities to Be Redeemed |
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42 |
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SECTION 3.05. Notice of Redemption |
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43 |
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SECTION 3.06. Effect of Notice of Redemption |
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44 |
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SECTION 3.07. Deposit of Redemption Price |
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44 |
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Note: |
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The Table of Contents shall not for any purposes be deemed to
be a part of
the Indenture. |
ii
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Page |
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SECTION 3.08. Payment of Securities Called for Redemption |
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44 |
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SECTION
3.09. Securities Redeemed in Part |
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44 |
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ARTICLE FOUR
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COVENANTS
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SECTION 4.01. Payment of Securities |
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45 |
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SECTION 4.02. Maintenance of Office or Agency |
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45 |
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SECTION 4.03. Limitation on Indebtedness |
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46 |
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SECTION 4.04. Limitation on Restricted Payments |
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48 |
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SECTION 4.05. Limitation on Dividend and Other Payment Restrictions Affecting
Restricted Subsidiaries |
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51 |
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SECTION 4.06. Limitation on the Issuance and Sale of Capital Stock of Restricted
Subsidiaries |
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52 |
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SECTION 4.07. Limitation on Issuances of Guarantees by Restricted Subsidiaries |
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52 |
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SECTION 4.08. Limitation on Transactions with Stockholders and Affiliates |
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53 |
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SECTION 4.09. Limitation on Liens |
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54 |
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SECTION
4.10. Limitation on Sale-Leaseback Transactions |
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55 |
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SECTION 4.11. Limitation on Asset Sales |
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55 |
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SECTION 4.12. Repurchase of Securities upon a Change of Control |
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56 |
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SECTION 4.13. Existence |
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56 |
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SECTION 4.14. Payment of Taxes and Other Claims |
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57 |
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SECTION 4.15. Maintenance of Properties and Insurance |
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57 |
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SECTION 4.16. Notice of Defaults |
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58 |
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SECTION 4.17. Compliance Certificates |
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58 |
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SECTION 4.18. Commission Reports and Reports to Holders |
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59 |
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SECTION
4.19. Waiver of Stay, Extension or Usury Laws |
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59 |
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SECTION 4.20. Additional Amounts |
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59 |
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SECTION
4.21. Xxxxxxxx Xxxxxxxx Xxxxxxxx x xx Xxxxxxx |
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00 |
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ARTICLE FIVE
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SUCCESSOR CORPORATION
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SECTION
5.01. When Company and Guarantor May Merge, Etc. |
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63 |
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SECTION 5.02. Successor Substituted |
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64 |
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ARTICLE SIX
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DEFAULT AND REMEDIES
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SECTION 6.01. Events of Default |
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64 |
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SECTION 6.02. Acceleration |
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66 |
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SECTION 6.03. Other Remedies |
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67 |
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iii
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SECTION 6.04. Waiver of Past Defaults |
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67 |
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SECTION
6.05. Control by Majority |
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67 |
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SECTION 6.06. Limitation on Suits |
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68 |
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SECTION 6.07. Rights of Holders to Receive Payment |
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68 |
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SECTION 6.08. Collection Suit by Trustee |
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69 |
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SECTION 6.09. Trustee May File Proofs of Claim |
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69 |
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SECTION 6.10. Priorities |
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69 |
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SECTION 6.11. Undertaking for Costs |
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70 |
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SECTION 6.12. Restoration of Rights and Remedies |
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70 |
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SECTION 6.13. Rights and Remedies Cumulative |
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70 |
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SECTION 6.14. Delay or Omission Not Waiver |
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70 |
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ARTICLE SEVEN
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TRUSTEE
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SECTION 7.01. General |
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71 |
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SECTION 7.02. Certain Rights of Trustee |
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71 |
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SECTION 7.03. Individual Rights of Trustee |
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72 |
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SECTION 7.04. Trustee’s Disclaimer |
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72 |
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SECTION 7.05. Notice of Default |
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73 |
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SECTION 7.06. Reports by Trustee to Holders |
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73 |
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SECTION 7.07. Compensation and Indemnity |
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73 |
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SECTION 7.08. Replacement of Trustee |
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74 |
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SECTION
7.09. Successor Trustee by Merger, Etc. |
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75 |
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SECTION 7.10. Eligibility |
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75 |
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SECTION 7.11. Money Held in Trust |
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75 |
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SECTION 7.12. Withholding Taxes |
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75 |
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ARTICLE EIGHT
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DISCHARGE OF INDENTURE; DEFEASANCE
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SECTION 8.01. Termination of Company’s and Guarantor’s Obligations |
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76 |
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SECTION 8.02. Defeasance and Discharge of Indenture |
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77 |
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SECTION 8.03. Defeasance of Certain Obligations |
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79 |
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SECTION 8.04. Application of Trust Money |
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81 |
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SECTION 8.05. Repayment to Company |
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81 |
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SECTION 8.06. Reinstatement |
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81 |
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ARTICLE NINE
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AMENDMENTS, SUPPLEMENTS AND WAIVERS
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SECTION 9.01. Without Consent of Holders |
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82 |
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iv
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Page |
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SECTION 9.02. With Consent of Holders |
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82 |
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SECTION 9.03. Revocation and Effect of Consent |
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83 |
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SECTION 9.04. Notation on or Exchange of Securities |
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84 |
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SECTION
9.05. Trustee to Sign Amendments, Etc. |
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84 |
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SECTION 9.06. Conformity with Trust Indenture Act |
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85 |
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ARTICLE TEN
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GUARANTEE OF SECURITIES
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SECTION 10.01. Securities Guarantee |
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85 |
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SECTION 10.02. Obligations Unconditional |
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86 |
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SECTION 10.03. Notice to Trustee |
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87 |
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SECTION 10.04. This Article Not to Prevent Events of Default |
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87 |
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SECTION 10.05. Net Worth Limitation |
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87 |
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ARTICLE ELEVEN
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INTERCREDITOR PROVISIONS
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SECTION 11.01. General |
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87 |
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SECTION 11.02. Concession Compensation |
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87 |
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SECTION 11.03. Payment over of Distributions |
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88 |
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SECTION
11.04. Rights Not Impaired, Etc. |
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88 |
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ARTICLE TWELVE
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SECURITY
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SECTION 12.01. Security |
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89 |
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ARTICLE THIRTEEN
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MISCELLANEOUS
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91 |
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SECTION 13.02. Notices |
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91 |
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SECTION 13.03. Certificate and Opinion as to Conditions Precedent |
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92 |
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SECTION 13.04. Statements Required in Certificate or Opinion |
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92 |
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SECTION 13.05. Meetings of Securityholders |
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93 |
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SECTION 13.06. Rules by Trustee, Paying Agent or Xxxxxxxxx |
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SECTION 13.07. Payment Date Other Than a Business Day |
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93 |
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SECTION 13.08. Governing Law; Submission to Jurisdiction; Agent for Service |
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93 |
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SECTION 13.09. Currency Indemnity |
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94 |
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SECTION 13.10. No Adverse Interpretation of Other Agreements |
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94 |
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SECTION 13.11. No Recourse Against Others |
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94 |
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Page |
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SECTION 13.12. Successors |
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95 |
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SECTION 13.13. Duplicate Originals |
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95 |
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SECTION 13.14. Separability |
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95 |
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SECTION
13.15. Table of Contents, Headings, Etc. |
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95 |
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EXHIBIT A Form of Security |
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A-1 |
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EXHIBIT B Form of Certificate |
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B-1 |
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EXHIBIT C Form of Certificate to Be Delivered in Connection with
Transfers Pursuant to Regulation S |
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C-1 |
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EXHIBIT D Form of Certificate to Be Delivered in Connection with
Transfers to Non-QIB Accredited Investors |
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D-1 |
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INDENTURE,
dated as of June 16, 1997, among TFM. S.A. de C.V.. a variable capital
company
(sociedad anónima de capital variable) organized under the laws of Mexico, as Issuer (the
“
Company”), GRUPO TRANSPORTACION FERROVIARIA
MEXICANA, S.A. de C.V., a corporation
(sociedad
anónima de capital variable) organized under the laws of Mexico, as Guarantor (the “
Guarantor”).
THE BANK OF
NEW YORK, a
New York banking corporation, as Trustee (the “
Trustee”), and Bankers Trust
Luxembourg S.A., as a Paying Agent.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this Indenture to provide for
the issuance of up to U.S. $150,000,000 aggregate principal amount of
the Company’s 10¼% Senior
Notes due 2007 (the “Securities”) issuable as provided in this Indenture pursuant to the terms of a
Placement Agreement dated June 11, 1997 (the “Placement Agreement”) among the Company, the
Guarantor and Xxxxxx Xxxxxxx & Co. Incorporated, First Union
Capital Markets Corp. and Société
Générale Securities Corporation, as the placement agents. The Securities will be secured pursuant
to the terms of an Escrow Agreement (as defined herein) as provided by Article Twelve of this
Indenture. Pursuant to the Registration Rights Agreement (as defined herein), the Securities may
become freely transferable upon the consummation of an exchange offer for the Securities or upon
the effectiveness of a shelf registration statement with respect to the Securities. All things
necessary to make this Indenture a valid agreement of the Company and the Guarantor, in accordance
with its terms, have been done, and the Company has done all things necessary to make the
Securities and the Securities Guarantee (as defined herein), when executed by the Company and
authenticated and delivered by the Trustee hereunder and duly issued by the Company and the
Guarantor, respectively, the valid obligations of the Company and the Guarantor as hereinafter
provided.
This
Indenture will be subject to, and shall be governed by. the provisions of the Trust
Indenture Act of 1939, as amended, that are required to be a part of and to govern indentures
qualified under the Trust Indenture Act of 1939, as amended.
AND
THIS INDENTURE FURTHER WITNESSETH
For and in consideration of the premises and the purchase of the Securities by the Holders (as
defined herein) thereof, it is mutually covenanted and agreed, for the equal and proportionate
benefit of all Holders, as follows.
2
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
“Acquired Indebtedness” means Indebtedness of a Person existing at the time such
Person becomes a Restricted Subsidiary or assumed in connection with an Asset Acquisition by the
Guarantor or a Restricted Subsidiary and not Incurred in connection with, or in anticipation of,
such Person becoming a Restricted Subsidiary or such Asset
Acquisition; provided that Indebtedness
of such Person which is redeemed, defeased, retired or otherwise repaid at the time of or
immediately upon consummation of the transactions by which such Person becomes a Restricted
Subsidiary or such Asset Acquisition shall not be Acquired Indebtedness.
“Acquisition” means the acquisition of 80% of the outstanding share capital of the
Company by the Guarantor.
“Acquisition Date” means the date on which the Acquisition is consummated.
“Additional Amounts” has the meaning set forth in Section 4.20.
“Adjusted Consolidated Net Income” means, for any period, the aggregate net income (or
loss) of the Guarantor and its Restricted Subsidiaries for such period determined in conformity
with IAS; provided that the following items shall be excluded in computing Adjusted Consolidated
Net Income (without duplication): (i) the net income of any Person (other than net income
attributable to a Restricted Subsidiary) in which any Person (other than the Guarantor or any of
its Restricted Subsidiaries) has a joint interest and the net income of any Unrestricted
Subsidiary, except to the extent of the amount of dividends or other distributions actually paid to
the Guarantor or any of its Restricted Subsidiaries by such other Person or such Unrestricted
Subsidiary during such period; (ii) solely for the purposes of calculating the amount of Restricted
Payments that may be made pursuant to clause (C) of the first paragraph of Section 4.04 (and in
such case, except to the extent includable pursuant to clause (i) above), the net income (or loss)
of any Person accrued prior to the date it becomes a Restricted Subsidiary or is merged into or
consolidated with the Guarantor or any of its Restricted Subsidiaries or all or substantially all
of the property and assets of such Person are acquired by the Guarantor or any of its Restricted
Subsidiaries; (iii) the net income of any Restricted Subsidiary (other than the Company) to the
extent that the declaration or payment of dividends or similar distributions by such Restricted
Subsidiary of such net income is not at the time permitted by the operation of the terms of its
charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to such Restricted Subsidiary; (iv) any gains or losses (on an after-tax
basis) attributable to Asset Sales; (v) except for purposes of calculating the amount of Restricted
3
Payments
that may be made pursuant to clause (C) of the first paragraph of Section 4.04, any amount
paid or accrued as dividends on Preferred Stock of the Guarantor or any Restricted Subsidiary of
such Guarantor owned by Persons other than the Guarantor and any of
its Restricted Subsidiaries;
and (vi) all extraordinary gains and extraordinary losses.
“Adjusted Consolidated Net Tangible Assets” means the total amount of assets of the
Guarantor and its Restricted Subsidiaries (less applicable depreciation, amortization and other
valuation reserves), except to the extent resulting from write-ups of capital assets following the
Closing Date (but including write-ups in connection with accounting for acquisitions in conformity
with IAS), after deducting therefrom (i) all current liabilities of the Guarantor and its
Restricted Subsidiaries (excluding intercompany items) and (ii) all goodwill, trade names,
trademarks, patents, unamortized debt discount and expense and other like intangibles, all as set
forth on the most recent quarterly or annual consolidated balance sheet of the Guarantor and its
Restricted Subsidiaries, prepared in conformity with IAS and filed with the Commission or provided
to the Trustee pursuant to Section 4.18.
“Affiliate” means, as applied to any Person, any other Person directly or indirectly
controlling, controlled by, or under direct or indirect common control with, such Person. For
purposes of this definition, “control” (including, with correlative meanings, the terms
“controlling,” “controlled by” and “under common control with”), as applied to any Person, means
the possession, directly or indirectly, of the power to direct or cause the direction of the
management and policies of such Person, whether through the ownership of voting securities, by
contract or otherwise.
“Agent”
means any Registrar, Paying Agent, authenticating agent or
co-Registrar.
“Agent Members” has the meaning provided in Section 2.07(a).
“Asset Acquisition” means (i) an investment by the Guarantor or any of its Restricted
Subsidiaries in any other Person pursuant to which such Person shall become a Restricted Subsidiary
of the Guarantor or shall be merged into or consolidated with the Guarantor or any of its
Restricted Subsidiaries; provided that such Person’s primary business is related, ancillary or
complementary to the businesses of the Guarantor and its Restricted Subsidiaries on the date of
such investment or (ii) an acquisition by the Guarantor or any of its Restricted Subsidiaries of
the property and assets of any Person other than the Guarantor or any of its Restricted
Subsidiaries that constitute substantially all of a division or line of business of such Person;
provided that the property and assets acquired are related, ancillary or complementary to the
businesses of the Guarantor and its Restricted Subsidiaries on the date of such acquisition.
4
“Asset Disposition” means the sale or other disposition by the Guarantor or any
of its Restricted Subsidiaries (other than to the Guarantor or another Restricted Subsidiary) of
(i) all or substantially all of the Capital Stock of any Restricted Subsidiary of the Guarantor or
(ii) all or substantially all of the assets that constitute a division or line of business of the
Guarantor or any of its Restricted Subsidiaries.
“Asset Sale” means any sale, transfer or other disposition (including by way of
merger, consolidation or sale-leaseback transaction) in one transaction or a series of related
transactions by the Guarantor or any of its Restricted Subsidiaries to any Person other than the
Guarantor or any of its Restricted Subsidiaries of (i) all or any of the Capital Stock of any
Restricted Subsidiary, (ii) all or substantially all of the property and assets of an operating
unit or business of the Guarantor or any of its Restricted Subsidiaries or (iii) any other property
and assets of the Guarantor or any of its Restricted Subsidiaries (other than the Capital Stock,
property or assets of an Unrestricted Subsidiary) outside the ordinary course of business of the
Guarantor or such Restricted Subsidiary and, in each case, that is not governed by the provisions
of this Indenture applicable to mergers, consolidations and sales of all or substantially all of
the assets of the Company and the Guarantor; provided that “Asset Sale” shall not include (a) sales
or other dispositions of inventory, receivables and other current assets (which shall not include
locomotives or rolling stock) or (b) sales or other dispositions of assets for consideration at
least equal to the fair market value of the assets sold or disposed of provided that the consideration received
would satisfy clause
(B) of the first paragraph of Section 4.11.
“Average Life” means, at any date of determination with respect to any debt security,
the quotient obtained by dividing (i) the sum of the products of (a) the number of years from such
date of determination to the dates of each successive scheduled principal payment of such debt
security and (b) the amount of such principal payment by (ii) the sum of all such principal
payments.
“Bank” means the lenders from time to time party to the Senior Secured Credit
Facilities.
“Bank Creditors” means the Syndication Agent, the Administrative Agent and the
Documentation Agent under and each as defined in the Senior Secured Credit Facilities and each of
the Banks.
“Board of Directors” means the Board of Directors of the Company or the Guarantor, as
the case may be, or the Executive Committee thereof, if duly authorized to act with respect to this
Indenture.
“Board Resolution” means a copy of a resolution, certified by the Secretary,
Pro-Secretary or any Assistant Secretary of the Company or the Guarantor, as the case may
5
be as required by the context to have been duly adopted by the Board of Directors and to
be in full force and effect on the date of such certification, and delivered to the Trustee.
“
Business Day” means any day except a Saturday, Sunday or other day on which
commercial banks in The City of
New York, or in the city of the Corporate Trust Office of the
Trustee, are authorized by law to close.
“Capital Contribution Agreement” means the agreement entered into on or prior to the
Acquisition Date among TMM, KCSI. the Guarantor, the Company and The Chase Manhattan Bank, for the
benefit of the lenders under the Senior Secured Credit Facilities.
“Capital
Stock” means, with respect to any Person, any and all shares, interests,
participations or other equivalents (however designated, whether voting or non-voting) in equity of
such Person, whether now outstanding or issued after the Closing Date including, without
limitation, all Common Stock and Preferred Stock.
“Capitalized Lease” means, as applied to any Person, any lease of any property
(whether real, personal or mixed) of which the discounted present value of the rental
obligations of such Person as lessee, in conformity with IAS is required to be capitalized on
the balance sheet of such Person.
“Capitalized Lease Obligations” means the discounted present value of the rental
obligations under a Capitalized Lease.
“Change of Control” means such time as (i) the Existing Holders cease to be the
ultimate “beneficial owners” (defined in Rule 13d-3 under the Exchange Act and including by reason
of any change in the ultimate “beneficial ownership” of the Capital Stock of the Guarantor) of
Voting Stock representing more than 50% of the total voting power of the total Voting Stock of the
Guarantor on a fully diluted basis: (ii) individuals who on the Closing Date constitute the Board
of Directors of the Company or the Guarantor (together with any new directors whose election by the
Board of Directors or by the Company’s stockholders or the Guarantor’s stockholders, as the case
may be, was approved by a vote of at least two-thirds of the members of such Board of Directors
then in office who either were members of such Board of Directors on the Closing Date or whose
election or nomination for election was previously so approved or who were appointed by one or more
of its Existing Holders) cease for any reason to constitute a majority of the members of such Board
of Directors then in office; or (iii) the Guarantor does not own all of the outstanding Voting
Stock of the Company other than as a result of (A) one or more primary offerings of the Common
Stock of the Company having, in the aggregate, voting power equal to or less than 35% of the total
voting power of the Voting Stock of the Company or (B) a merger, consolidation, sale, transfer or
lease solely between the Guarantor and the Company.
6
“Closing Date” means the date on which the Securities are originally issued under this
Indenture.
“Collateral” means the collateral pledged by the Company to the Trustee pursuant
to the terms of the Escrow Agreement.
“Commission” means the Securities and Exchange Commission, as from time to time
constituted, created under the Exchange Act or, if at any time after the execution of this
instrument such Commission is not existing and performing the duties now assigned to it under the
TIA, then the body performing such duties at such time.
“Common Stock” means, with respect to any Person, any and all shares, interests,
participations or other equivalents (however designated, whether voting or nonvoting) of such
Person’s equity, other than Disqualified Stock of such Person, whether now outstanding or issued
after the Closing Date, including all Common Stock or Preferred Stock (other than Disqualified
Stock). For purposes of this definition, “Common Stock” shall include all shares, interests,
participations and equivalents corresponding to common stock (other than Disqualified Stock) under
the laws of the jurisdiction in which such Person is organized.
“Company” means the party named as such in the first paragraph of this Indenture
until a successor replaces it pursuant to Article Five of this Indenture and thereafter means
the successor.
“Company Order” means a written request or order signed in the name of the Company
(i) by its Chief Executive Officer and (ii) by one of its Directors and delivered to the Trustee.
“Concession Compensation” means, upon the termination or revocation of the Concession
Title or loss of exclusivity thereunder, any compensation from Mexico or from any subsequent
recipient of the Concession Title (or rights which were previously exclusive to the Company under
the Concession Title other than trackage rights), which is collected, or received, by Mexico, the
Company or any other Credit Party.
“Concession Title” means the right of the Company for a period of 30 years to be the
exclusive provider (subject to certain trackage rights) of freight transportation services over the
Northeast Rail Lines and for an additional 20 years to be a non-exclusive provider of such services
granted by the Government pursuant to the Concession, subject in all cases to the terms and
conditions of the Concession Title, as in effect on the Acquisition Date.
“Consolidated EBITDA” means, for any period, the sum of the amounts for such period of
(i) Adjusted Consolidated Net Income, (ii) Consolidated Interest Expense, to
7
the extent such amount was deducted in calculating Adjusted Consolidated Net Income, (iii) income
and asset taxes, to the extent such amount was deducted in calculating Adjusted Consolidated Net
Income (other than income taxes (either positive or negative) attributable to extraordinary and
non-recurring gains or losses or sales of assets), (iv) depreciation expense, to the extent such
amount was deducted in calculating Adjusted Consolidated Net Income, (v) amortization expense, to
the extent such amount was deducted in calculating Adjusted Consolidated Net Income, and (vi) all
other non-cash items reducing Adjusted Consolidated Net Income (other than items that will require
cash payments and for which an accrual or reserve is, or is required by IAS to be, made), less all
non-cash items increasing Adjusted Consolidated Net Income, all as determined on a consolidated
basis for the Guarantor and its Restricted Subsidiaries in conformity with IAS; provided that, if
any Restricted Subsidiary (other than the Company) is not a Wholly Owned Restricted Subsidiary,
Consolidated EBITDA shall be reduced (to the extent not otherwise reduced in accordance with IAS)
by an amount equal to (A) the amount of the Adjusted Consolidated Net Income attributable to such
Restricted Subsidiary multiplied by (B) the quotient of (1) the number of shares of outstanding
Common Stock of such Restricted Subsidiary not owned on the last day of such period by the
Guarantor or any of its Restricted Subsidiaries divided by (2) the total number of shares of
outstanding Common Stock of such Restricted Subsidiary on the last day of such period.
“Consolidated Interest Expense” means, for any period, the aggregate amount of
interest in respect of Indebtedness (including amortization of original issue discount on any
Indebtedness and the interest portion of any deferred payment obligation, calculated in accordance
with the effective interest method of accounting; all commissions, discounts and other fees and
charges owed with respect to letters of credit and bankers’ acceptance financing; the net costs
associated with Interest Rate Agreements; and interest paid (by any Person) with respect to
Indebtedness that is Guaranteed or secured by the Guarantor or any of its Restricted Subsidiaries)
and all but the principal component of rentals in respect of Capitalized Lease Obligations paid,
accrued or scheduled to be paid or to be accrued by the Guarantor and its Restricted Subsidiaries
during such period; excluding, however, (i) any amount of such interest of any Restricted
Subsidiary if the net income of such Restricted Subsidiary is excluded in the calculation of
Adjusted Consolidated Net Income pursuant to clause (iii) of the definition thereof (but only in
the same proportion as the net income of such Restricted Subsidiary is excluded from the
calculation of Adjusted Consolidated Net Income pursuant to clause (iii) of the definition thereof)
and (ii) any premiums, fees and expenses (and any amortization thereof) payable in connection with
the offering of the Securities or the Senior Discount Debentures, the exchange offer or the shelf
registration statement with respect to the Securities or the Senior Discount Debentures, all as
determined on a consolidated basis (without taking into account Unrestricted Subsidiaries) in
conformity with IAS.
8
“Consolidated Net Worth” means, at any date of determination, stockholders equity as
set forth on the most recently available quarterly or annual consolidated balance sheet of the
Guarantor and its Restricted Subsidiaries (which shall be as of a date not more than 90 days prior
to the date of such computation, and which shall not take into account Unrestricted Subsidiaries),
less any amounts attributable to Disqualified Stock or any equity security convertible into or
exchangeable for Indebtedness, the cost of treasury stock and the principal amount of any
promissory notes receivable from the sale of the Capital Stock of the Guarantor or any of its
Restricted Subsidiaries, each item to be determined in conformity with IAS.
“Corporate Trust Office” means the office of the Trustee at which the corporate trust
business of the Trustee shall, at any particular time, be principally administered, which office
is, at the date of this Indenture, located at 000 Xxxxxxx Xxxxxx, Xxx
Xxxx, XX 00000, Attention:
Corporate Trust Administration.
“Credit
Party” means the Company, the Guarantor and any of their respective Subsidiaries which
guarantee, in whole or in part any Secured Obligations or any Senior Securities Obligations.
“Currency Agreement” means any foreign exchange contract, currency swap agreement or
other similar agreement or arrangement.
“Default”
means any event that is, or after notice or passage of time or both
would be, an Event of Default.
“Depositary” means the Depository Trust Company, its nominees, and their respective
successors.
“Disqualified Stock” means any class or series of Capital Stock of any Person that by
its terms or otherwise is (i) required to be redeemed prior to the Stated Maturity of the
Securities; (ii) redeemable at the option of the holder of such class or series of Capital Stock at
any time prior to the Stated Maturity of the Securities; or (iii) convertible into or exchangeable
for Capital Stock referred to in clause (i) or (ii) above or Indebtedness having a scheduled
maturity prior to the Stated Maturity of the Securities; provided that any Capital Stock that would
not constitute Disqualified Stock but for provisions thereof giving holders thereof the right to
require such Person to repurchase or redeem such Capital Stock upon the occurrence of an “asset
sale” or “change of control” occurring prior to the Stated Maturity of the Securities shall not
constitute Disqualified Stock if the “asset sale” or “change of control” provisions applicable to
such Capital Stock are no more favorable to the holders of such Capital Stock than the provisions
contained in Section 4.11 and Section 4.12 and such Capital Stock specifically provides that such
Person will not repurchase or redeem any such stock pursuant to such provision prior to the
Company’s repurchase of such Securities as are
9
required to be repurchased pursuant to Section 4.11 and Section 4.12. Notwithstanding the
foregoing, Series L shares of the Guarantor and the Class III Series A shares and Class III Series
B shares of the Company owned by Mexico shall be deemed not to be Disqualified Stock.
“Escrow Agreement” means the Escrow and Security Agreement, dated as of the Closing
Date, among the Company, the Guarantor, TMM, KCSI, the Placement Agents and the Trustee, as escrow
agent, governing the pledge by the Company of the Escrowed Funds to the Trustee, as escrow agent,
as such agreement may be amended, restated, supplemented or otherwise modified from time to time.
“Escrow Agreement Officers’ Certificate” means the Officers’ Certificate as defined in
the Escrow Agreement.
“Event of Default” has the meaning set forth in Section 6.01.
“Excess
Proceeds” has the meaning set forth in Section 4.11.
“Exchange Act”
means the Securities Exchange Act of 1934, as amended.
“Exchange Offer” means the exchange offer by the Company and the Guarantor of
Exchange Securities for the Securities.
“Exchange Securities” means any securities of the Company containing terms identical
to the Securities (except that such Exchange Securities (i) shall be registered under the
Securities Act, (ii) will not provide for an increase in the rate of interest (other than with
respect to overdue amounts) and (iii) will not contain terms with respect to transfer restrictions)
that are issued and exchanged for the Securities pursuant to the Registration Rights Agreement and
this Indenture.
“Existing Holders” means KCSI. TMM and Grupo Servia, S.A. de C.V.
“fair market value” means the price that would be paid in an arm’s-length transaction
between and informed and willing seller under no compulsion to sell and an informed and willing
buyer under no compulsion to buy, as determined in good faith by the Board of Directors, whose
determination shall be conclusive if evidenced by a Board Resolution.
“Global Securities” has the meaning provided in Section 2.01.
“Government Securities” means direct obligations of, obligations fully and
unconditionally guaranteed by, or participation in pools consisting solely of (or repurchase
10
transactions relating to) obligations of or obligations fully and unconditionally guaranteed by the
United States of America for the payment of which guarantee or obligations the full faith and
credit of the United States of America is pledged and which are not callable or redeemable at the
option of the issuer thereof.
“Guarantee” means any obligation, contingent or otherwise, of any Person directly or
indirectly guaranteeing (whether pursuant to a guaranty, a fianza, an aval or otherwise) any
Indebtedness of any other Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such Person (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness of such other Person
(whether arising by virtue of partnership arrangements, or by agreements to keep-well, to purchase
assets, goods, securities or services (unless such purchase arrangements are on arm’s length terms
and are entered into in the ordinary course of business), to take-or-pay, or to maintain financial
statement conditions or otherwise) or (ii) entered into for purposes of assuring in any other
manner the obligee of such Indebtedness of the payment thereof or to protect such obligee against
loss in respect thereof (in whole or in part); provided that the term “Guarantee” shall not include
endorsements for collection or deposit in the ordinary course of business or obligations arising,
in the ordinary course of business, from contracting for interline railroad services. The term
“Guarantee” used as a verb has a corresponding meaning.
“Guaranteed Indebtedness” has the meaning set forth in Section 4.07.
“Guarantor” means Grupo Transportación Ferroviaria Mexicana, S.A. de C.V. and its
successors and assigns.
“Holder” or “Securityholder” means the registered holder of any Security.
“IAS” means accounting principles issued by the International Accounting Standards
Committee as in effect on the Closing Date and the accounting principles and policies of the
Guarantor and its Restricted Subsidiaries, as in effect on the Closing Date and as implemented
during the two year period following the Closing Date. All ratios and computations shall be
computed in conformity with IAS applied on a consistent basis in U.S. Dollars, except that
calculations made for purposes of determining compliance with the terms of the covenants and with
other provisions of this Indenture shall be made without giving effect to the matters referred to
in clause (ii) of the last sentence of the definition of “Consolidated Interest Expense.”
“Incur” means, with respect to any Indebtedness, to incur, create, issue, assume.
Guarantee or otherwise become liable for or with respect to, or
become responsible for, the payment
of, contingently or otherwise, such Indebtedness, including an “Incurrence”
11
of Acquired Indebtedness; provided that neither the accrual of interest nor the accretion of
original issue discount shall be considered an Incurrence of Indebtedness.
“Indebtedness” means, with respect to any Person at any date of determination (without
duplication), (i) all indebtedness of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments, (iii) all obligations of
such Person in respect of letters of credit or other similar instruments (including reimbursement
obligations with respect thereto, but excluding obligations with respect to letters of credit
(including trade letters of credit) securing obligations (other than obligations described in (i)
or (ii) above or (v), (vi) or (vii) below) entered into in the ordinary course of business of such
Person to the extent such letters of credit are not drawn upon or, if drawn upon, to the extent
such drawing is reimbursed no later than the third Business Day following receipt by such Person of
a demand for reimbursement), (iv) all obligations of such Person to pay the deferred and unpaid
purchase price of property or services, which purchase price is due more than six months after the
date of placing such property in service or taking delivery and title thereto or the completion of
such services, except Trade Payables, (v) all obligations of such Person as lessee under
Capitalized Leases (but not operating leases), (vi) all Indebtedness of other Persons secured by a
Lien on any asset of such Person, whether or not such Indebtedness is assumed by such Person:
provided that the amount of such Indebtedness shall be the lesser of (A) the fair market value of
such asset at such date of determination and (B) the amount of such Indebtedness, (vii) all
Indebtedness of other Persons Guaranteed by such Person to the extent such Indebtedness is
Guaranteed by such Person and (viii) to the extent not otherwise included in this definition,
obligations under Currency Agreements and Interest Rate Agreements. The amount of Indebtedness of
any Person at any date shall be the outstanding balance at such date of all unconditional
obligations as described above and, with respect to contingent obligations, the maximum liability
upon the occurrence of the contingency giving rise to the obligation, provided (A) that the amount
outstanding at any time of any Indebtedness issued with original issue discount is the face amount
of such Indebtedness less the unamortized portion of the original issue discount of such
Indebtedness at the time of its issuance as determined in conformity with IAS. (B) that money
borrowed and set aside at the time of the Incurrence of any Indebtedness in order to prefund the
payment of interest on such Indebtedness shall be deemed not to be “Indebtedness” and (C) that
Indebtedness shall not include any liability for federal, state, local or other taxes of any
jurisdiction. For the purposes of computing the amount of Indebtedness of any Person outstanding
at any time, all such items shall be excluded to the extent that they would be eliminated as
intercompany items for purposes of such Person’s consolidated financial statements.
“Indenture” means this Indenture as originally executed or as it may be amended or
supplemented from time to time by one or more indentures supplemental to this Indenture entered
into pursuant to the applicable provisions of this Indenture:
12
“Institutional Accredited Investor” means an institution that is an “accredited
investor” as that term is defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the
Securities Act.
“Interest Coverage Ratio” means, on any Transaction Date, the ratio of (i) the
aggregate amount of Consolidated EBITDA for the then most recent four fiscal quarters prior to such
Transaction Date for which reports have been filed with the Commission or provided to the Trustee
pursuant to Section 4.18 (the “Four Quarter Period”) to (ii) the aggregate Consolidated Interest
Expense during such Four Quarter Period. In making the foregoing calculation, (A) pro forma
effect shall be given to any Indebtedness Incurred or repaid during the period (the “Reference
Period”) commencing on the first day of the Four Quarter Period and ending on the Transaction Date
(other than Indebtedness Incurred or repaid under a revolving credit or similar arrangement to the
extent of the commitment thereunder (or under any predecessor revolving credit or similar
arrangement) in effect on the last day of such Four Quarter Period unless any portion of such
Indebtedness is projected, in the reasonable judgment of the senior management of the Company, to
remain outstanding for a period in excess of 12 months from the date of the Incurrence thereof), in
each case as if such Indebtedness had been Incurred or repaid on the first day of such Reference
Period: (B) Consolidated Interest Expense attributable to interest on any Indebtedness (whether
existing or being Incurred) computed on a pro forma basis and bearing a floating interest rate
shall be computed as if the rate in effect on the Transaction Date (taking into account any
Interest Rate Agreement applicable to such Indebtedness if such Interest Rate Agreement has a
remaining term in excess of 12 months or, if shorter, at least equal to the remaining term of such
Indebtedness) had been the applicable rate for the entire period; (C) pro forma effect shall be
given to Asset Dispositions and Asset Acquisitions (including giving pro forma effect to the
application of proceeds of any Asset Disposition) that occur during such Reference Period as if
they had occurred and such proceeds had been applied on the first day of such Reference Period: and
(D) pro forma effect shall be given to asset dispositions and asset acquisitions (including giving
pro forma effect to the application of proceeds of any asset disposition) that have been made by
any Person that has become a Restricted Subsidiary or has been merged with or into the Guarantor or
any Restricted Subsidiary during such Reference Period and that would have constituted Asset
Dispositions or Asset Acquisitions had such transactions occurred when such Person was a Restricted
Subsidiary as if such asset dispositions or asset acquisitions were Asset Dispositions or Asset
Acquisitions that occurred on the first day of such Reference Period; provided that, to the extent
that clause (C) or (D) of this sentence requires that pro forma effect be given to an Asset
Acquisition or Asset Disposition, such pro forma calculation shall be based upon the four full
fiscal quarters immediately preceding the Transaction Date of the Person, or division or line of
business of the Person, that is acquired or disposed for which financial information is available.
“Interest Payment Date” means each semiannual interest payment date on June 15
and December 15 of each year, commencing December 15, 1997.
13
“Interest Rate Agreement” means any interest rate protection agreement, interest
rate future agreement, interest rate option agreement, interest rate swap agreement, interest rate
cap agreement, interest rate collar agreement, interest rate hedge agreement, option or future
contract or other similar agreement or arrangement.
“Investment” in any Person means any direct or indirect advance, loan or other
extension of credit (including, without limitation, by way of Guarantee or similar arrangement; but
excluding advances to customers in the ordinary course of business
that are, in conformity with
IAS, recorded as accounts receivable on the balance sheet of the Guarantor or its Restricted
Subsidiaries) or capital contribution to (by means of any transfer of cash or other property to
others or any payment for property or services for the account or use of others), or any purchase
or acquisition of Capital Stock, bonds, notes, debentures or other similar instruments issued by,
such Person and shall include (i) the designation of a Restricted Subsidiary as an Unrestricted
Subsidiary and (ii) the fair market value of the Capital Stock (or any other Investment), held by
the Guarantor or any of its Restricted Subsidiaries, of (or in) any Person that has ceased to be a
Restricted Subsidiary, including, without limitation, by reason of any transaction permitted by
clause (iii) of Section 4.06; provided that the value of any Investment outstanding at any time
shall be deemed to be equal to the amount of such Investment on the date made, less the return of
capital to the Guarantor and its Restricted Subsidiaries with respect to such Investment (up to the
amount of such Investment on the date made). For purposes of the definition of “Unrestricted
Subsidiary” and Section 4.04, (i) “Investment” shall include the fair market value of the assets
(net of liabilities (other than liabilities to the Guarantor or any of its Restricted
Subsidiaries)) of any Restricted Subsidiary at the time that such Restricted Subsidiary is
designated an Unrestricted Subsidiary, (ii) the fair market value of the assets (net of liabilities
(other than liabilities to the Guarantor or any of its Restricted Subsidiaries)) of any
Unrestricted Subsidiary at the time that such Unrestricted Subsidiary is designated a Restricted
Subsidiary shall be considered a reduction in outstanding Investments and (iii) any property
transferred to or from an Unrestricted Subsidiary shall be valued at its fair market value at the
time of such transfer.
“Lien” means any mortgage, pledge, security interest, encumbrance, lien or charge of
any kind (including, without limitation, any conditional sale or other title retention agreement or
lease in the nature thereof or any agreement to give any security interest).
“Management Services Agreements” means, collectively, the Management Services
Agreement between the Company and Transportación Marítima Mexicana, S.A. de C.V. dated May 9, 1997
and the Management Services Agreement between the Company and KCS Transportation Company dated May
9, 1997.
14
“Mexican Withholding Taxes” has the meaning set forth
in Section 4.20.
“Mexico” means the Estados Unidos Mexicanos (the United Mexican States) and any
branch of power, ministry, department, authority or statutory corporation or other
entity (including a trust), owned or controlled directly or indirectly by the Estados
Unidos Mexicanos or any of the foregoing or created by law as a public entity.
“Moody’s” means Xxxxx’x Investors Service, Inc. and its successors.
“Net Cash Proceeds” means (a) with respect to any Asset Sale, the proceeds of
such Asset Sale in the form of cash or cash equivalents, including payments in
respect of deferred payment obligations (to the extent corresponding to the principal, but
not interest, component thereof) when received in the form of cash or cash equivalents
(except to the extent such obligations are financed or sold with recourse to the Guarantor
or any Restricted Subsidiary) and proceeds from the conversion of other property received
when converted to cash or cash equivalents, net of (i) brokerage commissions and other fees
and expenses (including fees and expenses of counsel and investment bankers) related to
such Asset Sale, (ii) provisions for all taxes (whether or not such taxes will actually be
paid or are payable) as a result of such Asset Sale without regard to the consolidated
results of operations of the Guarantor and its Restricted Subsidiaries, taken as a
whole, (iii) payments made to repay Indebtedness or any other obligation outstanding at
the time of such Asset Sale that either (A) is secured by a Lien on the property or assets
sold or (B) is required to be paid as a result of such sale and (iv) appropriate amounts
to be provided by the Guarantor or any Restricted Subsidiary of the Guarantor as a reserve
against any liabilities associated with such Asset Sale, including, without limitation,
pension and other post-employment benefit liabilities, liabilities related to
environmental matters and liabilities under any indemnification obligations associated
with such Asset Sale, all as determined in conformity with IAS and (b) with respect to any
issuance or sale of Capital Stock, the proceeds of such issuance or sale in the form of
cash or cash equivalents, including payments in respect of deferred payment obligations
(to the extent corresponding to the principal, but not interest, component thereof) when
received in the form of cash or cash equivalents (except to the extent such obligations
are financed or sold with recourse to the Guarantor or any Restricted Subsidiary of the
Guarantor) and proceeds from the conversion of other property
received when converted to
cash or cash equivalents, net of attorney’s fees, accountants’ fees, underwriters’ or
placement agents’ fees, discounts or commissions and brokerage, consultant and other fees
incurred in connection with such issuance or sale and net of taxes paid or payable as a
result thereof.
“Non-U.S. Person” means a person who is not a U.S. person, as defined in
Regulation S.
15
“Northeast
Rail Lines” means that portion of the Mexican railroad system
that is the subject of the Concession Title.
“Offer to Purchase” means an offer to purchase Securities by the Company
from the Holders commenced by mailing a notice to the Trustee and each Holder that,
unless otherwise required by applicable law, shall state: (i) the covenant pursuant to
which the offer is being made and that all Securities validly tendered will be accepted
for payment on a pro rata basis; (ii) the purchase price and the date of purchase (which
shall be a Business Day no earlier than 30 days nor later than 60 days from the date such
notice is mailed) (the “Payment Date”); (iii) that any Security not tendered will
continue to accrue interest pursuant to its terms; (iv) that, unless the Company defaults
in the payment of the purchase price, any Security accepted for payment pursuant to the
Offer to Purchase shall cease to accrue interest on and after the Payment Date; (v) that
Holders electing to have a Security purchased pursuant to the Offer to Purchase will be
required to surrender the Security, together with the form entitled “Option of the Holder
to Elect Purchase” on the reverse side thereof completed, to the Paying Agent at the
address specified in the notice prior to the close of business on the Business Day
immediately preceding the Payment Date; (vi) that Holders will be entitled to withdraw
their election if the Paying Agent receives, not later than the close of business on the
third Business Day immediately preceding the Payment Date, a telegram, facsimile
transmission or letter setting forth the name of such Holder, the principal amount of
Securities delivered for purchase and a statement that such Holder is withdrawing his
election to have such Securities purchased; and (vii) that Holders whose Securities are
being purchased only in part will be issued new Securities equal in principal amount to
the unpurchased portion thereof surrendered; provided that each Security purchased and
each new Security issued shall be in a principal amount of $1,000 or integral multiples
thereof. On the Payment Date, the Company shall (i) accept for payment on a pro rata
basis Securities or portions thereof tendered pursuant to an Offer to Purchase; (ii)
deposit with the Paying Agent money sufficient to pay the purchase price of all
Securities or portions thereof so accepted; and (iii) deliver, or cause to be delivered,
to the Trustee all Securities or portions thereof so accepted together with an Officers’
Certificate specifying the relevant Securities or portions thereof accepted for payment
by the Company. The Paying Agent shall promptly mail to the Holders of Securities so
accepted, payment in an amount equal to the purchase price, and the Trustee shall
promptly authenticate and mail to such Holders a new Security, equal in principal amount
to any unpurchased portion of the Security surrendered. The Company will publicly
announce the results of an Offer to Purchase as soon as practicable after the Payment
Date. The Trustee shall act as the Paying Agent for an Offer to Purchase. The Company
will comply with Rule 14e-l under the Exchange Act and any other securities laws and
regulations thereunder to the extent such laws and regulations are applicable, in the
event that the Company is required to repurchase Securities pursuant to an Offer to
Purchase.
16
“Officer” means, with respect to the Company or the Guarantor, as the case may be,
(i) the Chief Executive Officer, the Chief Operating Officer, or any Vice President, and
(ii) the Chief Financial Officer, the Treasurer or any Assistant Treasurer, or the
Secretary, Pro-Secretary or any Assistant Secretary or any Director or Alternate
Director.
“Officers’ Certificate” means a certificate signed by one Officer listed in
clause (i) of the definition thereof and one Officer listed in clause (ii) of the
definition thereof; provided, however, that any such certificate may be signed by any two
of the Officers listed in clause (i) of the definition thereof in lieu of being signed by
one Officer listed in clause (i) of the definition thereof and one Officer listed in
clause (ii) of the definition thereof. Each Officers’ Certificate (other than
certificates provided pursuant to TIA Section 314(a)(4)) shall include the statements
provided for in TIA Section 314(e).
“Offshore Global Securities” has the meaning set forth in
Section 2.01.
“Offshore Physical Securities” has the meaning
set forth in Section 2.01.
“Offshore Securities Exchange Date” has the meaning set forth in
Section 2.01.
“Opinion of Counsel” means a written opinion signed by legal counsel who may
be an employee of or counsel to the Company. Each such Opinion of Counsel shall include
the statements provided for in TIA Section 314(e).
“Other Creditors” means any Bank or Banks which enter into one or more
Interest Rate Agreements or other hedging agreements with the Company, regardless of
whether such Bank subsequently ceases to be a Bank under the Senior Secured Credit
Facilities for any reason, and any successors and assigns of any such Bank.
“Paying
Agent” has the meaning provided in Section 2.04, except that, for the
purposes of Article Eight, the Paying Agent shall not be the Company or a Subsidiary of
the Company or an Affiliate of any of them. The term “Paying Agent” includes any
additional Paying Agent.
“Permanent Offshore Global Securities” has the meaning provided in Section
2.01.
“Permitted Investment” means (i) an Investment in the Guarantor or
a Restricted Subsidiary or a Person which will, upon the making of such Investment,
become a Restricted Subsidiary or be merged or consolidated with or into or transfer or
convey all or substantially all of its assets to the Guarantor or a Restricted
Subsidiary; provided that such person’s primary business is related, ancillary or
complementary to the businesses of the
17
Guarantor and its Restricted Subsidiaries on the date of such Investment; (ii)
Temporary Cash Investments; (iii) payroll, travel and similar advances to cover matters
that are expected at the time of such advances ultimately to be treated as expenses in
accordance with IAS; and (iv) stock, obligations or securities received in satisfaction
of judgments and (v) Mexican government securities purchased through Xxxxxx Xxxxxxx and
Co. Incorporated to be applied toward the purchase price in connection with the
Acquisition.
“Permitted
Liens” means (i) Liens for taxes, assessments, governmental
charges or claims that are being contested in good faith by appropriate legal proceedings
promptly instituted and diligently conducted and for which a reserve or other appropriate
provision, if any, as shall be required in conformity with IAS shall have been made; (ii)
statutory and common law Liens of landlords and carriers, warehousemen, mechanics,
suppliers, materialmen, repairmen or other similar Liens arising in the ordinary course
of business and with respect to amounts not yet delinquent or being contested in good
faith by appropriate legal proceedings promptly instituted and diligently conducted and
for which a reserve or other appropriate provision, if any, as shall be required in
conformity with IAS shall have been made; (iii) Liens incurred or deposits made in the
ordinary course of business in connection with workers’ compensation, unemployment
insurance and other types of social security; (iv) Liens incurred or deposits made to
secure the performance of tenders, bids, leases, statutory or regulatory obligations,
bankers’ acceptances, surety and appeal bonds, government contracts, performance and
return-of-money bonds and other obligations of a similar nature incurred in the ordinary
course of business (exclusive of obligations for the payment of borrowed money); (v)
easements, rights-of-way, municipal and zoning ordinances and similar charges,
encumbrances, title defects or other irregularities that do not materially interfere with
the ordinary course of business of the Guarantor or any of its Restricted Subsidiaries;
(vi) Liens (including extensions and renewals thereof) upon real or personal property
acquired after the Closing Date; provided that (a) such Lien is created solely for the
purpose of securing Indebtedness Incurred, in accordance with Section 4.03, to finance
the cost (including the cost of improvement, lease or construction) of the item of
property or assets subject thereto and such Lien is created prior to, at the time of or
within six months after the later of the acquisition, the completion of construction or
the commencement of full operation or the lease of such property, (b) the principal
amount of the Indebtedness secured by such Lien does not exceed 100% of such cost and (c)
any such Lien shall not extend to or cover any property or assets other than such item of
property or assets and any improvements on such item; (vii) licenses, leases or subleases
granted to others that do not materially interfere with the ordinary course of business
of the Guarantor and its Restricted Subsidiaries, taken as a whole; (viii) Liens
encumbering property or assets under construction arising from progress or partial
payments by a customer of the Guarantor or its Restricted Subsidiaries relating to such
property or assets; (ix) any interest or title of a lessor or licensor in the property
subject to any Capitalized Lease, operating lease or license agreement; (x) Liens arising
from filing Uniform Commercial Code or similar financing statements regarding leases;
(xi) Liens on property of, or on shares of stock or
18
Indebtedness of, any Person existing at the time such Person becomes, or becomes a
part of, any Restricted Subsidiary; provided that such Liens do not extend to or cover any
property or assets of the Guarantor or any Restricted Subsidiary other than the property
or assets acquired; (xii) Liens in favor of the Guarantor or any Restricted Subsidiary;
(xiii) Liens arising from the rendering of a final judgment or order against the
Guarantor or any Restricted Subsidiary of the Guarantor that does not give rise to an
Event of Default; (xiv) Liens securing reimbursement obligations with respect to letters
of credit that encumber documents and other property relating to such letters of credit
and the products and proceeds thereof; (xv) Liens in favor of customs and revenue
authorities arising as a matter of law to secure payment of customs duties in connection
with the importation of goods; (xvi) Liens encumbering customary initial deposits and
margin deposits, and other Liens, in each case, securing Indebtedness under Interest Rate
Agreements and Currency Agreements and forward contracts, options, futures contracts,
futures options or similar agreements or arrangements designed solely to protect the
Guarantor or any of its Restricted Subsidiaries from fluctuations in interest rates,
currencies or the price of commodities; (xvii) Liens arising out of conditional sale,
title retention, consignment or similar arrangements for the sale of goods entered into
by the Guarantor or any of its Restricted Subsidiaries in the ordinary course of
business; (xviii) Liens on or sales of receivables; (xix) Liens on any assets acquired by
the Guarantor or any Restricted Subsidiary after the Closing Date, which Liens were in
existence prior to the acquisition of such assets (to the extent that such Liens were not
created in contemplation of or in connection with such acquisition), provided that such
Liens are limited to the assets so acquired and the proceeds thereof; (xx) Liens existing
or arising under the Concession Title and (xxi) Liens Incurred in accordance with the
terms of this Indenture in favor of the Trustee under this Indenture or pursuant to the
terms of the Senior Discount Debenture Indenture in favor of the trustee under the Senior
Discount Debenture Indenture.
“Person” means any individual, corporation, partnership, limited liability company,
joint venture, association, joint stock company, trust, unincorporated organization,
government or agency or political subdivision thereof or any other entity.
“Physical Security” has the meaning provided in Section 2.01.
“Preferred Stock” means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated, whether
voting or non-voting) of such Person’s preferred or preference equity, whether now
outstanding or issued after the Closing Date, including, without limitation, all
series and classes of such preferred stock or preference stock.
“principal” of a debt security, including the Securities, means the principal
amount due on the Stated Maturity as shown on such debt security.
19
“Private Placement Legend” means the legend initially set forth on
the Securities in the form set forth in Section 2.02.
“Public Equity Offering” means an underwritten primary public offering of
Common Stock of the Guarantor or the Company pursuant to an effective registration
statement under the Securities Act.
“QIB” means a “qualified institutional buyer” as defined in Rule 144A.
“Redemption
Date,” when used with respect to any Security to be redeemed, means
the date fixed for such redemption by or pursuant to this Indenture.
“Redemption
Price,” when used with respect to any Security to be redeemed, means
the price at which such Security is to be redeemed pursuant to this Indenture.
“Registrar” has the meaning provided in Section
2.04.
“Registration” has the meaning set forth in
Section 4.18.
“Registration Rights Agreement” means the Registration Rights Agreement,
dated as of the Closing Date, among the Company, the Guarantor and Xxxxxx Xxxxxxx & Co.
Incorporated. First Union Capital Markets Corp. and Société
Générale Securities
Corporation.
“Registration Statement” means the Registration Statement as defined and
described in the Registration Rights Agreement.
“Regular Record Date” for the interest payable on any Interest Payment
Date means the June 1 or December 1 (whether or not a Business Day), as the case may
be. next preceding such Interest Payment Date.
“Regulation S” means Regulation S under the Securities Act.
“Released Indebtedness” means, with respect to any Asset Sale, Indebtedness
(i) which is owed by the Guarantor or any Restricted Subsidiary (the “Obligors”) prior to
such Asset Sale, (ii) which is assumed by the purchaser or any affiliate thereof in
connection with such Asset Sale and (iii) with respect to which the Obligors receive
written unconditional releases from each creditor no later than the closing date of such
Asset Sale.
“Responsible
Officer,” when used with respect to the Trustee, means the
Chairman or any Vice Chairman of the Board of Directors, the Chairman or any Vice
Chairman of the Executive Committee of the Board of Directors, the Chairman of the Trust
20
Committee, the President, any Vice President, the Secretary, any Assistant Secretary, the
Treasurer, any Assistant Treasurer, the Cashier, any Assistant Cashier, any Trust Officer
or Assistant Trust Officer, the Controller or any Assistant Controller or any other
Officer of the Trustee in its Corporate Trust Department having direct responsibility for
the administration of this Indenture or the Escrow Agreement and also means, with respect
to a particular corporate trust matter, any other officer to whom such matter is referred
because of his or her knowledge of and familiarity with the particular subject.
“Restricted Payments” has the meaning set forth in Section 4.04.
“Restricted Subsidiary” means the Company and any other Subsidiary of the
Guarantor other than an Unrestricted Subsidiary.
“Rule 144A” means Rule 144A under the Securities Act.
“S&P” means Standard & Poor’s Ratings Group and its successors.
“Secured Creditors” means and includes the Bank Creditors and the Other
Creditors.
“Secured Obligations” means all of the Company’s obligations, and each
guarantee of such obligations by any other Credit Party, with respect to:
(i) the full and prompt payment when due (whether at the stated maturity, by
acceleration or otherwise) of (x) the principal of and interest on the notes issued
by, and the loans made to, the Company under the Senior Secured Credit Facilities, and
all reimbursement obligations and unpaid drawings with respect to the letters of credit
issued under the Senior Secured Credit Facilities and (y) all other obligations
(including obligations which, but for (A) the automatic stay under Section 362(a) of the
United States Bankruptcy Code or (B) the Mexican Law of Bankruptcy and Suspension of
Payments (Ley de Quiebras y Suspension de Pagas) would become due) and liabilities owing
by the Company to the Secured Creditors under the Senior Secured Credit Facilities
(including, without limitation, indemnities, fees and interest thereon) now existing or
hereafter incurred under, arising out of or in connection with the Senior Secured Credit
Facilities or any other related document and the due performance and compliance with the
terms of such documents by the Company;
(ii) the full and prompt payment when due (whether at the stated
maturity, by acceleration or otherwise) of all obligations (including obligations
which, but for
(A) the automatic stay under Section 362(a) of the United States Bankruptcy Code or
(B) the Mexican Law of Bankruptcy and Suspension of Payments (Ley de
Quiebras y
Suspensión de Pagas), would become due) and liabilities owing by the Company to
21
one or more Other Creditors under any Interest Rate Agreements or other
hedging agreements, whether now in existence or hereafter arising, and the due
performance and compliance by the Company with all terms, conditions and
agreements contained therein;
(iii) any and all sums advanced by the collateral agent under the Senior
Secured Credit Facilities in order to preserve the assets or property securing
obligations thereunder or preserve its security interest in such assets or
property; and
(iv) in the event of any proceeding for the collection or enforcement of
any indebtedness, obligations, or liabilities of the Company or any other Credit
Party referred to in clauses (i) and (ii) above, after an event of default under
the Senior Secured Credit Facilities shall have occurred and be continuing, the
reasonable expenses of re-taking, holding, preparing for sale or lease, selling or
otherwise disposing of or realizing on the assets or property securing obligations
thereunder, together with reasonable attorneys’ fees and court costs.
“Securities” means any of the securities, as defined in the first paragraph of the
recitals hereof, that are authenticated and delivered under this Indenture. For all
purposes of this Indenture, the term “Securities” shall include any Exchange Securities
to be issued and exchanged for any Securities pursuant to the Registration Rights
Agreement and this Indenture and, for purposes of this Indenture, all Securities and
Exchange Securities shall vote together as one series of Securities under this Indenture.
“Securities
Act” means the Securities Act of 1933, as amended.
“Securities Guarantee” means the Guarantee of the Securities
by the Guarantor.
“Security Register” has the meaning provided in Section 2.04.
“Senior Discount Debenture Indenture” means the Indenture relating to the
113/4 Senior Discount Debentures of the Company due 2009.
“Senior
Discount Debentures” means the
113/4 Senior Discount
Debentures of the Company due 2009.
“Senior Secured Credit Facilities” means the credit agreement entered into
on or prior to the Acquisition Date among the Company, the Guarantor, the lenders named
therein. Xxxxxx Xxxxxxx Senior Funding, Inc., as syndication agent, The Chase Manhattan
Bank, as administrative agent, and Xxxxxxx Xxxxx Capital Corporation, as documentation
agent, together with all other agreements, instruments and documents executed or
delivered
22
pursuant thereto (including, without limitation, any guarantee agreements and security
documents), in each case as such agreements may be amended (including any amendment and
restatement thereof), supplemented, replaced (including a replacement referred to in the
parenthetical in the definition of the term “Officer’s Certificate” in the Escrow
Agreement) or otherwise modified from time to time, including any agreement extending
the maturity of, refinancing, replacing or otherwise restructuring (including by way of
adding Subsidiaries of the Company as additional borrowers or guarantors thereunder) all
or any portion of the Indebtedness under such agreement or any successor or replacement
agreement and whether by the same or any other agent, lender or group of lenders.
“Senior Securities Obligations” means (i) in the case of the Holders, all
liabilities and obligations of the Company and of any other Credit Party to the Holders,
matured or contingent, joint, several, or independent, now or after existing, due or to
become due, or held or to be held by the Holders, whether created directly or acquired by
assignment or otherwise, to the extent that same arise under, or relate to, the
Securities or this Indenture, and (ii) in the case of the Senior Discount Debentures, all
liabilities and obligations of the Company and of any other Credit Parry to the holders
of the Senior Discount Debentures, matured or contingent, joint, several or independent,
now or after existing, due or to become due, or held or to be held by the holders of the
Senior Discount Debentures, whether created directly or acquired by assignment or
otherwise, to the extent that same arise under, or relate to, the Senior Discount
Debenture Indenture or the Senior Discount Debentures.
“Shelf Registration Statement” has the meaning set forth in the Registration
Rights Agreement.
“Significant Subsidiary” means, at any date of determination, any Restricted
Subsidiary of the Guarantor that, together with its Subsidiaries, (i) for the most recent
fiscal year of the Guarantor, accounted for more than 10% of the consolidated revenues of
the Guarantor and its Restricted Subsidiaries or (ii) as of the end of such fiscal year,
was the owner of more than 10% of the consolidated assets of the Guarantor and its
Restricted Subsidiaries, all as set forth on the most recently available consolidated
financial statements of the Guarantor for such fiscal year.
“Stated Maturity” means (i) with respect to any debt security, the date
specified in such debt security as the fixed date on which the final installment of
principal of such debt security is due and payable and (ii) with respect to any scheduled
installment of principal of or interest on any debt security, the date specified in such
debt security as the fixed date on which such installment is due and payable.
“Subsidiary” means, with respect to any Person, any corporation, association or
other business entity of which more than 50% of the voting power of the outstanding
23
Voting Stock is owned, directly or indirectly, by such Person and one or more
other Subsidiaries of such Person.
“Temporary Cash Investment” means any of the following: (i) direct
obligations of the United States of America or any agency thereof or obligations fully
and unconditionally guaranteed by the United States of America or any agency thereof,
(ii) time deposit accounts, certificates of deposit and money market deposits denominated
and payable in U.S. Dollars maturing within 180 days of the date of acquisition thereof
issued by a bank or trust company which is organized under the laws of the United States
of America, any state thereof or any foreign country recognized by the United States of
America, and which bank or trust company has capital, surplus and undivided profits
aggregating in excess of $200 million (or the foreign currency equivalent thereof) and
has outstanding debt which is rated “A” (or such similar equivalent rating) or higher by
S&P or Moody’s or any money-market fund denominated and payable in U.S. Dollars sponsored
by a registered broker dealer or mutual fund distributor, (iii) repurchase obligations
with a term of not more than 30 days for underlying securities of the types described in
clause (i) above entered into with a bank meeting the qualifications described in clause
(ii) above, (iv) commercial paper denominated and payable in U.S. Dollars, maturing not
more than 90 days after the date of acquisition, issued by a corporation (other than an
Affiliate of the Company or the Guarantor) organized and in existence under the laws of
the United States of America or any state thereof with a rating at the time as of which
any investment therein is made of “P-l” (or higher) according to Moody’s or “A-l” (or
higher) according to S&P, (v) securities with maturities of six months or less from the
date of acquisition issued or fully and unconditionally guaranteed by any state,
commonwealth or territory of the United States of America, or by any political
subdivision or taxing authority thereof, and rated at least
“A” by S&P or Moody’s, (vi)
Certificados de la Tesoreria de la Federación (Cetes) or
Bonos de Desarrollo del Gobierno
Federal (Bondes) issued by the Mexican government and maturing not more than 180 days
after the acquisition thereof, (vii) Investments in money market funds substantially all
of whose assets are comprised of securities of the types described in clauses (i) through
(vi) above, (viii) demand deposit accounts with U.S. banks (or Mexican banks specified in
clause (ix) of this definition) maintained in the ordinary course of business and (ix)
certificates of deposit, bank promissory notes and bankers’ acceptances denominated in
Pesos, maturing not more than 180 days after the acquisition thereof and issued or
Guaranteed by any one of the five largest banks (based on assets as of the immediately
preceding December 31) organized under the laws of Mexico and which are not under
intervention or controlled by the Fondo Bancario de Protección al Ahorro or any successor
thereto.
“Temporary Offshore Global Securities” has the meaning provided in
Section 2.01.
24
“Tex-Mex Railway” means the Texas-Mexican Railway Company, a Texas
corporation, and its successors.
“TIA” or “Trust Indenture Act” means the Trust Indenture Act of 1939. as
amended (15 U.S. Code §§ 77aaa-77bbb). as in effect on the date this Indenture was
executed, except as provided in Section 9.06.
“TMM”
means Transportation Maritima Mexicana, S.A. de C.V., a sociedad
anónima de
capital variable organized under the laws of Mexico, and its successors.
“Trade Payables” means, with respect to any Person, any accounts payable or
any other indebtedness or monetary obligation to trade creditors created, assumed or
Guaranteed by such Person or any of its Subsidiaries arising in the ordinary course of
business in connection with the acquisition of goods or services.
“Transaction Date” means, with respect to the Incurrence of any Indebtedness
by the Guarantor or any of its Restricted Subsidiaries, the date such Indebtedness is to
be Incurred and, with respect to any Restricted Payment, the date such Restricted Payment
is to be made.
“Trustee” means the party named as such in the first paragraph of this Indenture
until a successor replaces it in accordance with the provisions of Article Seven of this
Indenture and thereafter means such successor.
“United States Bankruptcy Code” means the Bankruptcy Reform Act of 1978,
as amended and as codified in Title 11 of the United States Code, as amended from
time to time hereafter, or any successor federal bankruptcy law.
“Unrestricted Subsidiary” means (i) any Subsidiary of the Guarantor (other
than the Company) that at the time of determination shall be designated an Unrestricted
Subsidiary by the Board of Directors in the manner provided below and (ii) any Subsidiary
of an Unrestricted Subsidiary. The Board of Directors of the Guarantor may designate
any Restricted Subsidiary (including any newly acquired or newly formed Subsidiary of the
Guarantor) other than the Company to be an Unrestricted Subsidiary unless such Subsidiary
owns any Capital Stock of, or owns or holds any Lien on any property of, the Guarantor or
any Restricted Subsidiary; provided that (A) any Guarantee by the Guarantor or any
Restricted Subsidiary of any Indebtedness of the Subsidiary being so designated shall be
deemed an “Incurrence” of such Indebtedness and an “Investment” by the Guarantor or such
Restricted Subsidiary (or both, if applicable) at the time of such designation; (B)
either (I) the Subsidiary to be so designated has total assets of $1,000 or less or (II)
if such Subsidiary has assets greater than $1,000, such designation would be permitted
under Section 4.04; and (C) if applicable, the Incurrence of Indebtedness and the
Investment referred to in
25
clause (A) of this proviso would be permitted under Section 4.03 and Section 4.04. Board
of Directors may designate any Unrestricted Subsidiary to be a Restricted Subsidiary;
provided that (x) all Liens and Indebtedness of such Unrestricted Subsidiary outstanding
immediately after such designation would, if Incurred at such time, have been permitted
to be Incurred for all purposes of this Indenture and (y) no Default or Event of Default
shall have occurred and be continuing at the time of or immediately after giving effect
to such designation. Any such designation by the Board of Directors shall be evidenced to
the relevant Trustee by promptly filing with such Trustee a copy of the Board Resolution
giving effect to such designation and an Officers’ Certificate certifying that such
designation complied with the foregoing provisions.
“U.S. Global Securities” has the meaning provided in Section 2.01.
“U.S. Person” has the meaning ascribed thereto in Rule 902 under the Securities
Act.
“U.S. Physical Securities” has the meaning provided in Section 2.01.
“Voting Stock” means with respect to any Person, Capital Stock of any class or kind
ordinarily having the power to vote for the election of directors, managers or other
voting members of the governing body of such Person, excluding, however. Series L shares
of the Guarantor and Class III Series A shares and the Class III Series B shares of the
Company owned by Mexico as of the Acquisition Date and any class or kind of Capital Stock
which has limited or restricted voting rights (i.e., having the power to vote for the
election of a minority of the directors, managers or other voting members of the
governing body of such Person) under the By-laws of such Person or under Mexican law.
“Wholly Owned” means, with respect to any Subsidiary of any Person, the
ownership of all of the outstanding Capital Stock of such Subsidiary (other than any
director’s qualifying shares or Investments by foreign nationals mandated by applicable
law) by such Person or one or more Wholly Owned Subsidiaries of such Person.
SECTION
1.02. Incorporation by Reference of Trust Indenture Act. Whenever
this Indenture refers to a provision of the TIA, the provision is incorporated by
reference in and made a part of this Indenture. The following TIA terms used in this
Indenture have the following meanings:
“indenture securities” means the Securities;
“indenture
security holder” means a Holder or a Securityholder;
“indenture to be qualified” means this Indenture;
26
“indenture trustee” or “institutional
trustee” means the Trustee: and
“obligor” on the indenture securities means the Company or any other obligor
on the Securities.
All
other TIA terms used in this Indenture that are defined by the TIA, defined by
TIA reference to another statute or defined by a rule of the Commission and not otherwise
defined herein have the meanings assigned to them therein.
SECTION 1.03. Rules of Construction. Unless the context otherwise
requires:
(i)
a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning assigned
to it in accordance with IAS;
(iii) “or” is not exclusive;
(iv) words in the singular include the plural, and words in the plural
include the singular;
(v) provisions apply to successive events and transactions;
(vi) “herein,” “hereof” and other words of similar import refer to this
Indenture as a whole and not to any particular Article, Section or other
subdivision; and
(vii) all references to Sections or Articles refer to Sections or Articles
of this Indenture unless otherwise indicated.
ARTICLE TWO
THE SECURITIES
SECTION 2.01. Form and Dating. The Securities and the Trustee’s
certificate of authentication shall be substantially in the form annexed hereto as
Exhibit A. The Securities may have such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Indenture and may have letters,
notations, legends or endorsements required by law, stock exchange agreements to which
the Company is subject or usage. Any portion of the text of any Security may be set
forth on the reverse thereof, with an appropriate reference thereto on the face of the
Security. The Company
27
shall approve the form of the Securities and any notation, legend or
endorsement on the Securities. Each Security shall be dated the date of its
authentication.
The terms and provisions contained in the form of the Securities annexed hereto as
Exhibit A shall constitute, and are hereby expressly made, a pan of this Indenture. Each
of the Company, the Guarantor, the Trustee and the Paying Agent, by its execution and
delivery of this Indenture, expressly agrees to the terms and provisions of the
Securities applicable to it and to be bound thereby.
Securities offered and sold in,reliance on Rule 144A shall be issued in the form of
one or more permanent global Securities in registered form, substantially in the form set
forth in Exhibit A (the “U.S. Global Securities”), deposited with the Trustee, as
custodian for the Depositary, duly executed by the Company and authenticated by the
Trustee as hereinafter provided. The aggregate principal amount of the U.S. Global
Securities may from time to time be increased or decreased by adjustments made on the
records of the Trustee, as custodian for the Depositary or its nominee, as hereinafter
provided.
Securities offered and sold in offshore transactions in reliance on Regulation S
shall be issued initially in the form of one or more temporary global Securities in
registered form substantially in the form set forth in Exhibit A (the “Temporary
Offshore Global Securities”), registered in the name of the nominee of the
Depositary, deposited with the Trustee, as custodian for the Depositary, duly executed by
the Company and authenticated by the Trustee as hereinafter provided. At any time
following July 26, 1997 (the “Offshore Securities Exchange Date”), upon receipt
by the Trustee and the Company of a certificate substantially in the form of Exhibit B
hereto, one or more permanent global Securities in registered form substantially in the
form set forth in Exhibit A (the “Permanent Offshore
Global Securities”; and
together with the Temporary Offshore Global Securities, the “Offshore Global
Securities”) duly executed by the Company and authenticated by the Trustee as
hereinafter provided shall be deposited with the Trustee, as custodian for the
Depositary. The aggregate principal amount of the Offshore Global Securities may from
time to time be increased or decreased by adjustments made in the records of the Trustee,
as custodian for the Depositary or its nominee, as herein provided.
Securities which are offered and sold to Institutional Accredited Investors which
are not QIBs (excluding Non-U.S. Persons) shall be issued in the form of permanent
certificated Securities in registered form in substantially the form set forth in Exhibit
A (the “U.S. Physical-Securities”). Securities issued pursuant to Section 2.07 in
exchange for interests in the U.S. Global Securities or the Offshore Global Securities
shall be in the form of U.S. Physical Securities or in the form of permanent certificated
Securities in registered form substantially in the form set forth in Exhibit A (the
“Offshore Physical Securities”), respectively.
28
The Offshore Physical Securities and U.S. Physical Securities are
sometimes collectively herein referred to as the “Physical
Securities.” The U.S.
Global Securities and the Offshore Global Securities are sometimes referred to as the
“Global Securities.”
The definitive Securities shall be typed, printed, lithographed or engraved or
produced by any combination of these methods or may be produced in any other manner
permitted by the rules of any securities exchange on which the Securities may be listed,
all as determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
SECTION
2.02. Restrictive Legends. (a) Unless and until a Security is
exchanged for an Exchange Security in connection with an effective Registration Statement
pursuant to the Registration Rights Agreement, the U.S. Global Securities, Temporary
Offshore Global Securities and each U.S. Physical Security shall bear the legend set
forth below on the face thereof:
THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD
WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS
EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE
HOLDER (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED
IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS AN “INSTITUTIONAL ACCREDITED
INVESTOR” (AS DEFINED IN RULE 501(a)(l), (2), (3) OR (7) OF REGULATION D UNDER THE
SECURITIES ACT) (AN “INSTITUTIONAL ACCREDITED INVESTOR”) OR (C) IT IS NOT A U.S.
PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN COMPLIANCE
WITH REGULATION S UNDER THE SECURITIES ACT. (2) AGREES THAT IT WILL NOT. WITHIN
TWO YEARS AFTER THE CLOSING DATE. RESELL OR OTHERWISE TRANSFER THIS SECURITY
EXCEPT (A) TO THE COMPANY, THE GUARANTOR OR ANY SUBSIDIARY THEREOF. (B) TO A
QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES
ACT. (C) INSIDE THE UNITED STATES TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT,
PRIOR TO SUCH TRANSFER. FURNISHES TO THE TRUSTEE A SIGNED LETTER CONTAINING
CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF
THIS SECURITY (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE) AND IF
SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF SECURITIES AT THE
TIME OF TRANSFER OF LESS THAN $100,000, AN OPINION OF COUNSEL ACCEPTABLE TO THE
COMPANY THAT SUCH
29
TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT. (D) OUTSIDE THE UNITED STATES
IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT.
(E) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT (IF AVAILABLE) OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT AND (3) AGREES THAT IT WILL DELIVER TO EACH
PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT
OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS SECURITY WITHIN THE TIME
PERIOD REFERRED TO ABOVE, THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON
THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS
CERTIFICATE TO THE TRUSTEE. IF THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL
ACCREDITED INVESTOR. THE HOLDER MUST. PRIOR TO SUCH TRANSFER. FURNISH TO EACH OF
THE TRUSTEE AND THE COMPANY SUCH CERTIFICATIONS. LEGAL OPINIONS OR OTHER
INFORMATION AS IT MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING
MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO. THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. AS USED HEREIN, THE TERMS
“OFFSHORE TRANSACTION.” “UNITED STATES” AND “U.S. PERSON” HAVE THE MEANINGS GIVEN
TO THEM BY REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE CONTAINS
PROVISIONS REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS
SECURITY IN VIOLATION OF THE FOREGOING RESTRICTIONS.
(b) Each Global Security, whether or not an Exchange Security, shall also bear
the following legend on the face thereof:
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN
THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY OR SUCH OTHER
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY OR SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY
(AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS
IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY), ANY
30
TRANSFER. PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO.. HAS AN
INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE. BUT
NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL
BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
SECTION 2.08 OF THE INDENTURE.
SECTION 2.03. Execution. Authentication and Denominations. Two Officers
shall execute the Securities for the Company by facsimile or manual signature in the name
and on behalf of the Company.
If an Officer whose signature is on a Security no longer holds that office at the
time the Trustee or authenticating agent authenticates the Security, the Security shall
be valid nevertheless.
A Security shall not be valid until the Trustee or authenticating agent manually
signs the certificate of authentication on the Security. The signature shall be
conclusive evidence that the Security has been authenticated under this Indenture.
The Trustee or an authenticating agent shall upon receipt of a Company Order
authenticate for original issue Securities in the aggregate principal amount of up to
U.S. $150.000.000 plus any Exchange Securities that may be issued pursuant to the
Registration Rights Agreement; provided that the Trustee shall receive an Officers’
Certificate and an Opinion of Counsel of the Company in connection with such
authentication of Securities. The Opinion of Counsel shall be to the effect that:
(a) the form and terms of such Securities have been established by
or pursuant to a Board Resolution or an indenture supplemental hereto in
conformity with the provisions of this Indenture;
(b) such supplemental indenture, if any, when executed and delivered by the
Company, the Guarantor, the Trustee and the Paying Agent, will constitute a valid
and binding obligation of the Company and the Guarantor, respectively;
(c) such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any conditions
specified in such
31
Opinion of Counsel, will constitute valid and binding obligations of the
Company in accordance with their terms and will be entitled to the benefits of
this Indenture, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating to
or affecting creditors’ rights and to general equity principles; and
(d) the Company has been duly incorporated in, and is a validly
existing corporation under the laws of, Mexico or the United States.
Such Company Order shall specify the amount of Securities to be authenticated and the
date on which the original issue of Securities is to be authenticated. The aggregate
principal amount of Securities outstanding at any time may not exceed the amount set
forth above except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities pursuant to Section
2.06, 2.09, 2.10 or 2.11.
The Trustee may appoint an authenticating agent to authenticate Securities. An
authenticating agent may authenticate Securities whenever the Trustee may do so. Each
reference in this Indenture to authentication by the Trustee includes authentication by
such authenticating agent. An authenticating agent has the same rights as an Agent to
deal with the Company or an Affiliate of the Company.
The Securities shall be issuable only in registered form without coupons and only in
denominations of U.S.$1,000 in principal amount and any integral
multiple of U.S.$1,000
in excess thereof.
SECTION
2.04.
Registrar and Paying Agent. The Company shall maintain an
office or agency where Securities may be presented for registration of transfer or for
exchange (the “
Registrar”), an office or agency where Securities may be presented for
payment (the “
Paying Agents”) and an office or agency where notices and demands to or
upon the Company in respect of the Securities and this Indenture may be served, which
shall be in the Borough of Manhattan, the City of
New York and in Luxembourg. The
Company shall cause the Registrar acting as agent of the Company to keep a register of
the Securities and of their transfer and exchange (the “Security Register”). The
Company may have one or more co-Registrars and one or more additional Paying Agents.
The Company shall enter into an appropriate agency agreement with any Agent not a
party to this Indenture. The agreement shall implement the provisions of this Indenture
that relate to such Agent. The Company shall give prompt written notice to the Trustee
of the name and address of any such Agent and any change in the address of such Agent.
If the Company fails to maintain a Registrar, Paying Agent and/or agent for service of
notices and demands, the Trustee shall act as such Registrar, Paying Agent and/or agent
for service of notices and demands for so long as such failure shall continue. The
Company may remove
32
any Agent
upon written notice to such Agent and the Trustee; provided that no such
removal shall become effective until (i) the acceptance of an appointment by a successor
Agent to such Agent as evidenced by an appropriate agency agreement entered into by the
Company and such successor Agent and delivered to the Trustee or (ii) notification to the
Trustee that the Trustee shall serve as such Agent until the appointment of a successor
Agent in accordance with clause (i) of this proviso. The Company, any Subsidiary of the
Company, or any Affiliate of any of them may act as Paying Agent, Registrar or
co-Registrar, and/or agent for service of notices and demands; provided, however, that
neither the Company, a Subsidiary of the Company nor an Affiliate of any of them shall
act as Paying Agent in connection with the defeasance of the Securities or the discharge
of this Indenture under Article Eight.
The Company initially appoints the Trustee as Registrar, Paying Agent,
authenticating agent and agent for service of notices and demands and Bankers Trust
Luxembourg S.A. as Paying Agent. If, at any time, the Trustee is not the Registrar, the
Registrar shall make available to the Trustee on or before each Interest Payment Date and
at such other times as the Trustee may reasonably request, the names and addresses of the
Holders as they appear in the Security Register.
SECTION
2.05.
Paying Agent to Hold Money in Trust. Not later than 12:00
noon.
New York City time, on each due date of the principal, premium, if any, and
interest on any Securities, the Company shall deposit with the Paying Agent money in
immediately available funds sufficient to pay such principal, premium, if any, and
interest so becoming due. The Company shall require each Paying Agent, if any, other
than the Trustee to agree in writing that such Paying Agent shall hold in trust for the
benefit of the Holders or the Trustee all money held by the Paying Agent for the payment
of principal of, premium, if any, and interest on the Securities (whether such money has
been paid to it by the Company or any other obligor on the Securities), and that such
Paying Agent shall promptly notify the Trustee of any default by the Company (or any
other obligor on the Securities) in making any such payment. The Company at any time
may require a Paying Agent to pay all money held by it to the Trustee and account for any
funds disbursed, and the Trustee may at any time during the continuance of any payment
default, upon written request to a Paying Agent, require such Paying Agent to pay all
money held by it to the Trustee and to account for any funds disbursed. Upon doing so,
the Paying Agent shall have no further liability for the money so paid over to the
Trustee. If the Company or any Subsidiary of the Company or any Affiliate of any of
them acts as Paying Agent, it will, on or before each due date of any
principal of,
premium, if any, or interest on the Securities, segregate and hold in a separate trust
fund for the benefit of the Holders a sum of money sufficient to pay such principal,
premium, if any, or interest so becoming due until such sum of money shall be paid to
such Holders or otherwise disposed of as provided in this Indenture, and will promptly
notify the Trustee of its action or failure to act as required by this Section 2.05.
33
SECTION 2.06. Transfer and Exchange. The Securities are issuable only in
registered form. A Holder may transfer a Security by written application to the Registrar
stating the name of the proposed transferee and otherwise complying with the terms of this
Indenture. No such transfer shall be effected until, and such transferee shall succeed to the
rights of a Holder only upon, registration of the transfer by the Registrar in the Security
Register. Prior to the registration of any transfer by a Holder as provided herein, the
Company, the Trustee and any agent of the Company shall treat the person in whose name the
Security is registered as the owner thereof for all purposes whether or not the Security shall
be overdue, and neither the Company, the Trustee nor any such agent shall be affected by
notice to the contrary. Furthermore, any Holder of a Global Security shall, by acceptance of
such Global Security, agree that transfer’s of beneficial interests in such Global Security
may be effected only through a book-entry system maintained by the Depositary (or its agent),
and that ownership of a beneficial interest in the Security shall be required to be reflected
in a book entry. When Securities are presented to the Registrar or a co-Registrar with a
request to register the transfer or to exchange them for an equal principal amount of
Securities of other authorized denominations (including an exchange of Securities for Exchange
Securities), the Registrar shall register the transfer or make the exchange as requested if
its requirements for such transactions are met; provided that no exchanges of Securities for
Exchange Securities shall occur until a Registration Statement shall have been declared
effective by the Commission and that any Securities that are exchanged for Exchange Securities
shall be cancelled by the Trustee. To permit registrations of transfers and exchanges in
accordance with the terms, conditions and restrictions hereof, the Company shall execute and
the Trustee shall authenticate Securities at the Registrar’s request. No service charge shall
be made to any Holder for any registration of transfer or exchange or redemption of the
Securities, but the Company may require payment of a sum sufficient to cover any transfer tax
or similar governmental charge payable in connection therewith (other than any such transfer
taxes or other similar governmental charge payable upon transfers, exchanges or redemptions
pursuant to Section 2.11, 3.08. 4.11, 4.12 or 9.04).
The Registrar shall not be required (i) to issue, register the transfer of or exchange
any Security during a period beginning at the opening of business 15 days before the day of
the mailing of a notice of redemption of Securities selected for redemption under Section 3.03
or Section 3.09 and ending at the close of business on the day of such mailing or (ii) to
register the transfer of or exchange any Security so selected for redemption in whole or in
part, except the unredeemed portion of any Security being redeemed in part.
SECTION 2.07. Book-Entry Provisions for Global Securities, (a) The U.S. Global
Securities and Offshore Global Securities initially shall (i) be registered in the name of the
Depositary for such Global Securities or the nominee of such Depositary, (ii) be delivered to
the Trustee as custodian for such Depositary and (iii) bear legends as set forth in Section
2.02.
34
Members
of, or participants in, the Depositary (“Agent Members”) shall have no rights under
this Indenture with respect to any Global Security held on their behalf by the Depositary, or the
Trustee as its custodian, or under any Global Security, and the Depositary may be treated by the
Company, the Trustee and any agent of the Company or the Trustee as the absolute owner of such
Global Security for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Company, the Trustee or any agent of the Company or the Trustee from giving effect to
any written certification, proxy or other authorization furnished by the Depositary or impair, as
between the Depositary and its Agent Members, the operation of customary practices governing the
exercise of the rights of a beneficial owner of any Security.
(b) Transfers of a Global Security shall be limited to transfers of such Global Security in
whole, but not in part, to the Depositary, its successors or their respective nominees. Interests
of beneficial owners in a Global Security may be transferred in accordance with the applicable
rules and procedures of the Depositary and the provisions of Section 2.08. In addition, U.S.
Physical Securities and Offshore Physical Securities shall be transferred to all beneficial owners
in exchange for their beneficial interests in the U.S. Global Securities or the Offshore Global
Securities, respectively, if (i) the Depositary notifies the Company that it is unwilling or unable
to continue as Depositary for the U.S. Global Securities or the Offshore Global Securities, as the
case may be, and a successor depositary is not appointed by the Company within 90 days of such
notice or (ii) an Event of Default has occurred and is continuing and the Registrar has received a
request to the foregoing effect from the Depositary.
(c) Any beneficial interest in one of the Global Securities that is transferred to a person
who takes delivery in the form of an interest in the other Global Security will, upon transfer,
cease to be an interest in such Global Security and become an interest in the other Global Security
and, accordingly, will thereafter be subject to all transfer restrictions,
if any, and other procedures applicable to beneficial interests in such other Global Security for
as long as it remains such an interest.
(d) In connection with any transfer pursuant to paragraph (b) of this Section of a portion
of the beneficial interests in the U.S. Global Securities to beneficial owners who are required to
hold U.S. Physical Securities, the Registrar shall reflect on its books and records the date and a
decrease in the principal amount of the U.S. Global Securities in an amount equal to the principal
amount of the beneficial interest in the U.S. Global Securities to be transferred, and the Company
shall execute, and the Trustee shall authenticate and deliver, one or more U.S. Physical Securities
of like tenor and amount.
(e) In connection with the transfer of the entire U.S. Global Securities or Offshore Global
Securities to beneficial owners pursuant to paragraph (b) of this Section, the U.S. Global
Securities or Offshore Global Securities, as the case may be, shall be deemed to
35
be
surrendered to the Trustee for cancellation, and the Company
shall execute, and the Trustee
shall authenticate and deliver, to each beneficial owner identified by the Depositary in exchange
for its beneficial interest in the U.S. Global Securities or Offshore Global Securities, as the
case may be, an equal aggregate principal amount of U.S. Physical Securities or Offshore Physical
Securities, as the case may be, of authorized denominations.
(f) Any U.S. Physical Security delivered in exchange for an interest in the U.S. Global
Securities pursuant to paragraph (b) or (d) of this Section shall, except as otherwise provided by
paragraph (f)(i)(x) and paragraph (f) of Section 2.08, bear the legend regarding transfer
restrictions applicable to the U.S. Physical Security set forth in Section 2.02.
(g) Any Offshore Physical Security delivered in exchange for an interest in the Offshore
Global Securities pursuant to paragraph (b) of this Section shall, except as otherwise provided by
paragraph (e) of Section 2.08, bear the legend regarding transfer restrictions applicable to the
Offshore Physical Security set forth in Section 2.02.
(h) The registered holder of a Global Security may grant proxies and otherwise authorize any
person, including Agent Members and persons that may hold interests through Agent Members, to take
any action which a Holder is entitled to take under this Indenture or the Securities.
(i) QIBs that are beneficial owners of interests in a Global Security may receive Physical
Securities (which shall bear the Private Placement Legend if required by Section 2.02) in
accordance with the procedures of the Depositary. In connection with the execution,
authentication and delivery of such Physical Securities, the Registrar shall reflect on its books
and records a decrease in the principal amount of the relevant Global Security equal to the
principal amount of such Physical Securities and the Company shall execute and the Trustee shall
authenticate and deliver one or more Physical Securities having an equal aggregate principal
amount.
SECTION 2.08. Special Transfer Provisions. Unless and until a Security is exchanged for an
Exchange Security in connection with an effective Registration Statement pursuant to the
Registration Rights Agreement, the following provisions shall apply:
(a)
Transfers to QIBs. The following provisions shall apply with respect to the
registration of any proposed transfer of a U.S. Physical Security or an interest in the U.S. Global
Securities to a QIB (excluding Non-U.S. Persons):
(i) If the Security to be transferred consists of (x) U.S. Physical Securities, the Registrar
shall register the transfer if such transfer is being made by a proposed transferor who has checked
the box provided for on the
36
form of Security stating, or has otherwise advised the Company and the Registrar in writing, that
the sale has been made in compliance with the provisions of Rule 144A to a transferee who has
signed the certification provided for on the form of Security stating, or has otherwise advised the
Company and the Registrar in writing, that it is purchasing the Security for its own account or an
account with respect to which it exercises sole investment discretion and that it and any such
account is a QIB within the meaning of Rule 144A, and is aware that the sale to it is being made in
reliance on Rule 144A and acknowledges that it has received such information regarding the Company
as it has requested pursuant to Rule 144A or has determined not to request such information and
that it is aware that the transferor is relying upon its foregoing representations in order to
claim the exemption from registration provided by Rule 144A or (y) an interest in the U.S. Global
Securities, the transfer of such interest may be effected only through the book-entry system
maintained by the Depositary.
(ii) If the proposed transferor is an Agent Member, and the Security to be transferred
consists of U.S. Physical Securities, upon receipt by the Registrar of the documents referred to in
clause (i) and instructions given in accordance with the Depositary’s and the Registrar’s
procedures, the Registrar shall reflect on its books and records the date and an increase in the
principal amount of the U.S. Global Securities in an amount equal to the principal amount of the
U.S. Physical Securities to be transferred, and the Trustee shall cancel the Physical Security so
transferred.
(b) Transfers of Interests in the Temporary Offshore Global Securities. The following
provisions shall apply with respect to registration of any proposed transfer of interests in the
Temporary Offshore Global Securities:
(i) The Registrar shall register the transfer of any Security (x) if the proposed transferee
is a Non-U.S. Person and the proposed transferor has delivered to the Registrar a certificate
substantially in the form of Exhibit C hereto or (y) if the proposed transferee is a QIB and the
proposed transferor has checked the box provided for on the form of Security stating, or has
otherwise advised the Company and the Registrar in writing, that the sale has been made in
compliance with the provisions of Rule 144A to a transferee who has signed the certification
provided for on the form of Security stating, or has otherwise advised the Company and the
Registrar in writing, that it is purchasing the Security for its own account or an account with
respect to which it exercises sole investment discretion and that it and any such account is a QIB
within the meaning of Rule 144A, and is aware that the sale to it is being made in reliance on Rule
144A and acknowledges that it has received
37
such information regarding the Company as it has requested pursuant to Rule 144A or has determined
not to request such information and that it is aware that the transferor is relying upon its
foregoing representations in order to claim the exemption from registration provided by Rule 144A.
(ii) If the proposed transferee is an Agent Member, upon receipt by the Registrar of the
documents referred to in clause (i)(y) above and instructions given in accordance with the
Depositary’s and the Registrar’s procedures, the Registrar shall reflect on its books and records
the date and an increase in the principal amount of the U.S. Global Securities in an amount equal
to the principal amount of the Temporary Offshore Global Securities to be transferred, and the
Trustee shall decrease the amount of the Temporary Offshore Global Securities.
(c) Transfers of Interests in the Permanent Offshore Global Securities or Offshore
Physical Securities to U.S. Persons. With respect to any transfer of interests in the
Permanent Offshore Global Securities or Offshore Physical Securities to U.S. Persons, the Registrar
shall register the transfer of any such Security without requiring any additional certification.
(d) Transfers to Non-U.S. Persons at Any Time. The following provisions shall
apply with respect to any transfer of a Security to a Non-U.S. Person:
(i) The Registrar shall register any proposed transfer of a Security to any Non-U.S. Person only
upon receipt of a certificate substantially in the form of Exhibit C from the proposed transferor.
(ii) (A) If the proposed transferor is an Agent Member holding a beneficial interest in the
U.S. Global Securities, upon receipt by the Registrar of (x) the documents required by paragraph
(i) and (y) instructions in accordance with the Depositary’s and the Registrar’s procedures, the
Registrar shall reflect on its books and records the date and a decrease in the principal amount of
the U.S. Global Securities in an amount equal to the principal amount of the beneficial interest in
the U.S. Global Securities to be transferred, and (B) if the proposed transferee is an Agent
Member, upon receipt by the Registrar of instructions given in accordance with the Depositary’s and
the Registrar’s procedures, the Registrar shall reflect on its books and records the date and an
increase in the principal amount of the Offshore Global Securities in an amount equal to the
principal amount of the U.S. Physical Securities or the U.S. Global Securities, as the case may be,
to be transferred, and the Trustee shall cancel the Physical Security, if any, so transferred or
decrease the amount of the U.S. Global Securities.
38
(e)
Transfers to Non-QIB Institutional Accredited Investors. The following provisions
shall apply with respect to the registration of any proposed transfer of a Security to any
Institutional Accredited Investor which is not a QIB (excluding Non-U.S. Persons):
(i) The Registrar shall register the transfer of any Security, whether or not such Security
bears the Private Placement Legend, if (x) the requested transfer is after the time period referred
to in Rule 144(k) under the Securities Act as in effect with respect to such transfer or (y) the
proposed transferee has delivered to the Registrar (A) a certificate substantially in the form of
Exhibit D hereto and (B) if the aggregate principal amount of the Securities being transferred is
less than U.S.$100,000 at the time of such transfer, an Opinion of Counsel acceptable to the
Company that such transfer is in compliance with the Securities Act.
(ii) If the proposed transferor is an Agent Member holding a beneficial interest in the U.S.
Global Securities, upon receipt by the Registrar of (x) the documents, if any, required by
paragraph (i) and (y) instructions given in accordance with the Depositary’s and the Registrar’s
procedures, the Registrar shall reflect on its books and records the date and a decrease in the
principal amount of the U.S. Global Securities in an amount equal to the principal amount of the
beneficial interest in the U.S. Global Securities to be transferred, and the Company shall execute,
and the Trustee shall authenticate and deliver, one or more U.S. Physical Securities of like tenor
and amount.
(f) Private Placement Legend. Upon the transfer, exchange or replacement of
Securities not bearing the Private Placement Legend, the Registrar shall deliver Securities that do
not bear the Private Placement Legend. Upon the transfer, exchange or replacement of Securities
bearing the Private Placement Legend, the Registrar shall deliver only Securities that bear the
Private Placement Legend unless either (i) the circumstances contemplated by the fourth paragraph
of Section 2.01 or paragraph (d)(7) or (e)(i)(x) of this Section 2.08 exist or (ii) there is
delivered to the Registrar an Opinion of Counsel reasonably satisfactory to the Company and the
Trustee to the effect that neither such legend nor the related restrictions on transfer are
required in order to maintain compliance with the provisions of the Securities Act.
(g) General. By its acceptance of any Security bearing the Private Placement Legend,
each Holder of such a Security acknowledges the restrictions on transfer of such Security set forth
in this Indenture and in the Private Placement Legend and agrees that it will transfer such
Security only as provided in this Indenture. The Registrar shall not register a transfer of
any Security unless such transfer complies with the restrictions on transfer of such Security set
forth in this
39
Indenture. In connection with any transfer of Securities to a Person that is not a QIB. each
Holder agrees by its acceptance of the Securities to furnish the Registrar or the Company such
certifications, legal opinions or other information as either of them may reasonably require to
confirm that such transfer is being made pursuant to an exemption from, or a transaction not
subject to, the registration requirements of the Securities Act; provided that the Registrar shall
not be required to determine (but may rely on a determination made by the Company with respect to)
the sufficiency of any such certifications, legal opinions or other information.
The Registrar shall retain copies of all letters, notices and other written communications received
pursuant to Section 2.07 or this Section 2.08. The Company shall have the right to inspect and
make copies of all such letters, notices or other written communications at any reasonable time
upon the giving of reasonable written notice to the Registrar.
SECTION 2.09. Replacement Securities. If a mutilated Security is surrendered to the
Trustee or if the Holder claims that the Security has been lost, destroyed or wrongfully taken, the
Company shall issue and the Trustee shall authenticate a replacement Security of like tenor and
principal amount and bearing a number not contemporaneously outstanding; provided that the
requirements of the second paragraph of Section 2.10 are met. If required by the Trustee or the
Company, an indemnity bond must be furnished that is sufficient in the judgment of both the Trustee
and the Company to protect the Company, the Guarantor, the Trustee or any Agent from any loss that
any of them may suffer if a Security is replaced. The Company may charge such Holder for its
expenses and the expenses of the Trustee in replacing a Security. In case any such mutilated,
lost, destroyed or wrongfully taken Security has become or is about to become due and payable, the
Company in its discretion may pay such Security instead of issuing a new Security in replacement
thereof.
Every replacement Security is an additional obligation of the Company and shall be entitled to the
benefits of this Indenture.
SECTION 2.10. Outstanding Securities. Securities outstanding at any time are all
Securities that have been authenticated by the Trustee except for those cancelled by it. those
delivered to it for cancellation and those described in this Section 2.10 as not outstanding.
If a Security is replaced pursuant to Section 2.09, it ceases to be outstanding unless and until
the Trustee and the Company receive proof reasonably satisfactory to them that the replaced
Security is held by a bona fide purchaser.
40
If the Paying Agent (other than the Company or an Affiliate of the Company) holds on the maturity
date money sufficient to pay Securities payable on that date, then on and after that date such
Securities cease to be outstanding and interest on them shall cease to accrue.
A Security does not cease to be outstanding because the Company or one of its Affiliates holds such
Security, provided, however, that, in determining whether the Holders of the requisite principal
amount of the outstanding Securities have given any request, demand, authorization, direction,
notice, consent or waiver hereunder. Securities owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor shall be disregarded and deemed
not to be outstanding, except that, in determining whether the Trustee shall be protected in
relying upon any such request, demand, authorization, direction, notice, consent or waiver, only
Securities which the Trustee knows to be so owned shall be so disregarded. Securities so owned
which have been pledged in
good faith may be regarded as outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee is not
the Company or any other obligor upon the Securities or any Affiliate of the Company or of such
other obligor.
SECTION
2.11. Temporary Securities. Until definitive Securities are ready for delivery,
the Company may prepare and the Trustee shall authenticate temporary Securities. Temporary
Securities shall be substantially in the form of definitive Securities but may have insertions,
substitutions, omissions and other variations determined to be appropriate by the Officers
executing the temporary Securities, as evidenced by their execution of such temporary Securities.
If temporary Securities are issued, the Company will cause definitive Securities to be prepared
without unreasonable delay. After the preparation of definitive Securities, the temporary
Securities shall be exchangeable for definitive Securities upon surrender of the temporary
Securities at the office or agency of the Company designated for such purpose pursuant to Section
4.02, without charge to the Holder. Upon surrender for cancellation of any one or more temporary
Securities the Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive Securities of authorized denominations. Until so
exchanged, the temporary Securities shall be entitled to the same benefits under this Indenture as
definitive Securities.
SECTION 2.12. Cancellation. The Company at any time may deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder which the Company may
have acquired in any manner whatsoever, and may deliver to the Trustee for cancellation any
Securities previously authenticated hereunder which the Company has not issued and sold. The
Registrar and the Paying Agent shall forward to the Trustee any Securities surrendered to them for
transfer, exchange or payment. The Trustee shall cancel all Securities surrendered for transfer,
exchange, payment or cancellation and
41
shall dispose of them in accordance with its normal procedure. The Company shall not issue new
Securities to replace Securities it has paid in full or delivered to the Trustee for cancellation.
SECTION 2.13. CUSIP Numbers. The Company in issuing the Securities may use “CUSIP,”
“CINS” or “ISIN” numbers (if then generally in use), and the Trustee shall use “CUSIP” numbers,
“CINS” or “ISIN” numbers, as the case may be, in notices of redemption or exchange as a convenience
to Holders; provided that any such notice shall state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as contained in any notice of
redemption or exchange and that reliance may be placed only on the other identification numbers
printed on the Securities. The Company will promptly notify the Trustee of any change in “CUSIP.”
“CINS” or “ISIN” numbers for the Securities.
SECTION 2.14. Defaulted Interest. If the Company defaults in a payment of interest on
the Securities, it shall pay, or shall deposit with the Paying Agent money in immediately available
funds sufficient to pay, the defaulted interest, plus (to the extent lawful) interest on the
defaulted interest, to the Persons who are Holders on a subsequent special record date. A special
record date, as used in this Section 2.14 with respect to the payment of any defaulted interest,
shall mean the 15th day next preceding the date fixed by the Company for the
payment of defaulted interest, whether or not such day is a Business Day. At least 15 days before
the subsequent special record date, the Company shall mail to each Holder and to the Trustee a
notice that states the subsequent special record date, the payment date and the amount of defaulted
interest to be paid.
SECTION 2.15. Issuance of Additional Securities. The Company may, subject to Article Four
of this Indenture, issue additional Securities under this Indenture. The Securities issued on the
Closing Date and any additional Securities subsequently issued shall be treated as a single class
for all purposes under this Indenture.
ARTICLE THREE
REDEMPTION
SECTION 3.01.
Mandatory Redemption. In the event that the Acquisition is not consummated
on or prior to July 31, 1997, in the Company shall redeem the
Securities on August 7, 1997 in whole,
on not less than six days’ prior notice mailed by first-class mail to such Holder’s last address as
it appears on the Security Register, at a Redemption Price equal to 101% of the principal amount of
the Securities, plus accrued and unpaid interest to the Redemption Date. If the Trustee has not
received the Escrow Agreement Officers’ Certificate on or prior to July 31, 1997, the Trustee will
mail by first-class mail to each
42
Holder’s last address as it appears in the Security Register a written notice that the Securities
will be redeemed on the Redemption Date specified above.
SECTION 3.02.
Redemption for Changes in Withholding Taxes. The Securities will also be
subject to redemption, in whole or in pan, at the option of the Company at any time at 100% of
their principal amount together with accrued interest thereon, if any, to the Redemption Date, in
the event the Company has become or would become obligated to pay, on the next date on which any
amount would be payable with respect to the Securities, any Additional Amounts in excess of those
attributable to a withholding tax rate of 4.9% as a result of a change in or amendment to the laws
(including any regulations or general rules promulgated thereunder) of Mexico (or any political
subdivision or taxing authority thereof or therein), or any change in or amendment to any official
position regarding the application, administration or interpretation of such laws, regulations or
general rules, including a holding of a court of competent jurisdiction, which change or amendment
is announced or becomes effective on or after June 11, 1997. The
Company shall not, however, have
the right to redeem Securities from a Holder pursuant to this Section except to the extent that it
is obligated to pay Additional Amounts to such Holder that are greater than the Additional Amounts
that would be payable based on a Mexican withholding tax rate of 4.9%.
SECTION 3.03.
Notices to Trustee. If the Company elects to redeem Securities pursuant to
Section 3.01 or Section 3.02, it shall notify the Trustee in writing of the Redemption Date and the
principal amount of Securities to be redeemed.
The Company
shall give each notice provided for in this Section 3.03 in an Officers’ Certificate at
least 60 days before the Redemption Date (unless a shorter period shall be satisfactory to the
Trustee).
SECTION 3.04.
Selection of Securities to Be Redeemed. If less than all of the
Securities are to be redeemed at any time, the Trustee shall select the Securities to be redeemed
in compliance with the requirements, as certified to it by the Company, of the principal national
securities exchange, if any, on which the Securities are listed or, if the Securities are not
listed on a national securities exchange, by lot or such other method as the Trustee in its sole
discretion shall deem to be fair and appropriate; provided that no Securities of U.S.$1.000 in
principal amount or less shall be redeemed in part.
The
Trustee shall make the selection from the Securities outstanding and not previously called for
redemption. Securities in denominations of U.S.$1,000 in principal amount may only be redeemed in
whole. The Trustee may select for redemption portions (equal to U.S.$1,000 in principal amount or
any integral multiple thereof) of Securities that have denominations larger than U.S.$1.000 in
principal amount. Provisions of this Indenture that apply to Securities called for redemption also
apply to portions of Securities called for
43
redemption. The Trustee shall notify the Company and the Registrar promptly in writing of the
Securities or portions of Securities to be called for redemption.
SECTION 3.05.
Notice of Redemption. With respect to any redemption of Securities
pursuant to Section 3.02, at least 30 days but not more than 60 days before a Redemption Date, the
Company shall mail a notice of redemption by first class mail to each Holder whose Securities are
to be redeemed. With respect to any redemption of Securities pursuant to Section 3.01, on not less
that six days’ notice before the Redemption Date therefor, the Trustee shall mail a notice of
redemption by first class mail to each Holder whose Securities are to be redeemed.
The notice shall identify the Securities to be redeemed and shall state:
(i) the Redemption Date:
(ii) the Redemption Price;
(iii) the name and address of the Paying Agent;
(iv) that Securities called for redemption must be surrendered to the Paying Agent in order to
collect the Redemption Price;
(v) that, unless the Company defaults in making the redemption payment, interest on Securities
called for redemption ceases to accrue on and after the Redemption Date and the only remaining
right of the Holders is to receive payment of the Redemption Price plus accrued interest to the
Redemption Date upon surrender of the Securities to the Paying Agent:
(vi) that, if any Security is being redeemed in pan, the portion of the principal amount (equal
to U.S.$1,000 in principal amount or any integral multiple thereof) of such Security to be redeemed
and that, on and after the Redemption Date, upon surrender of such Security, a new Security or
Securities in principal amount equal to the unredeemed portion thereof will be reissued; and
(vii)
that, if any Security contains a CUSIP, CINS or ISIN number as provided in Section 2.13,
no representation is being made as to the correctness of the CUSIP, ClNS or ISIN number either as
printed on the Securities or as contained in the notice of redemption and that reliance may be
placed only on the other identification numbers printed on the Securities.
At the Company’s request (which request may be revoked by the Company at any time prior to the time
at which the Trustee shall have given such notice to the Holders),
44
made in writing to the Trustee at least 60 days
(or such shorter period as shall be satisfactory
to the Trustee) before a Redemption Date, the Trustee shall give the notice of redemption in the
name and at the expense of the Company. If, however, the Company gives such notice to
the Holders, the Company shall concurrently deliver to the Trustee an Officers’ Certificate stating
that such notice has been given.
SECTION 3.06. Effect of Notice of Redemption. Once notice of redemption is mailed.
Securities called for redemption become due and payable on the Redemption Date and at the
Redemption Price. Upon surrender of any Securities to the Paying Agent, such Securities shall be
paid at the Redemption Price, plus accrued interest, if any, to the Redemption Date.
Notice of redemption shall be deemed to be given when mailed, whether or not the Holder receives
the notice. In any event, failure to give such notice, or any defect therein, shall not affect
the validity of the proceedings for the redemption of Securities held by Holders to whom such
notice was properly given.
SECTION 3.07. Deposit of Redemption Price. At or prior to 12:00 noon on any Redemption
Date, the Company shall deposit with the Paying Agent (or, if the Company is acting as its own
Paying Agent, shall segregate and hold in trust as provided in Section 2.05) money sufficient to
pay the Redemption Price of and accrued interest on all Securities to be redeemed on that date
other than Securities or portions thereof called for redemption on that date that have been
delivered by the Company to the Trustee for cancellation.
SECTION 3.08. Payment of Securities Called for Redemption. If notice of redemption has
been given in the manner provided above, the Securities or portion of Securities specified in such
notice to be redeemed shall become due and payable on the Redemption Date at the Redemption Price
stated therein, together with accrued interest to such Redemption Date, and on and after such date
(unless the Company shall default in the payment of such Securities at the Redemption Price and
accrued interest to the Redemption Date, in which case the principal, until paid, shall bear
interest from the Redemption Date at the rate prescribed in the Securities), such Securities shall
cease to accrue interest. Upon surrender of any Security for redemption in accordance with a
notice of redemption, such Security shall be paid and redeemed by the Company at the Redemption
Price, together with accrued interest, if any, to the Redemption
Date; provided that installments
of interest whose Stated Maturity is on or prior to the Redemption Date shall be payable to the
Holders registered as such at the close of business on the relevant Regular Record Date.
SECTION 3.09. Securities Redeemed in Part. Upon surrender of any Security that is
redeemed in part the Company shall execute and the Trustee shall authenticate and deliver to the
Holder a new Security equal in principal amount to the unredeemed portion of such surrendered
Security.
45
ARTICLE FOUR
COVENANTS
SECTION 4.01.
Payment of Securities. The Company shall pay the principal of premium, if
any, and interest on the Securities on the dates and in the manner provided in the Securities and
this Indenture. An installment of principal, premium, if any, or interest shall be considered paid
on the date due if the Trustee or Paying Agent (other than the Company, a Subsidiary of the
Company, or any Affiliate of any of them) holds on that date money designated for and sufficient to
pay the installment. If the Company or any Subsidiary of the Company or any Affiliate of any of
them acts as Paying Agent, an installment of principal, premium, if any, or interest shall be
considered paid on the due date if the entity acting as Paying Agent complies with the last
sentence of Section 2.05. As provided in Section 6.09,
upon any bankruptcy or reorganization procedure relative to the Company, the Trustee shall serve as
the Paying Agent and conversion agent, if any, for the Securities.
The Company
shall pay interest on overdue principal, premium, if any, and interest on overdue
installments of interest, to the extent lawful, at the rate per annum specified in the Securities.
SECTION 4.02. Maintenance of Office or Agency. Each of the Company and the Guarantor
will maintain an office or agency where Securities may be surrendered for registration of transfer
or exchange or for presentation for payment and where notices and demands to or upon the Company or
the Guarantor, as applicable, in respect of the Securities and this Indenture may be served.
Each of the Company and the Guarantor will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any time the Company or
the Guarantor shall fail to maintain any such required office or agency or shall fail to furnish
the Trustee with the address thereof, such presentations, surrenders, notices and demands may be
made or served at the address of the Trustee set forth in Section 13.02.
Each of the Company and the Guarantor may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations;
provided that no such designation or
rescission shall in any manner relieve the Company or the Guarantor of its obligation to maintain
an office or agency in the Borough of Manhattan, the City of
New York for such purposes. Each of
the Company and the Guarantor will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other office or agency.
46
The
Company and the Guarantor hereby initially designate the Corporate Trust Office of the Trustee,
as such office of the Company and the Guarantor in accordance with Section 2.04.
SECTION 4.03.
Limitation on Indebtedness. (a) The Guarantor will not, and will not
permit any of its Restricted Subsidiaries to, Incur any Indebtedness (other than the Securities,
the Securities Guarantees, the Senior Discount Debentures (and the guarantee thereof) and
Indebtedness existing on the Closing Date); provided that the Guarantor and the Company may Incur
Indebtedness if, after giving effect to the Incurrence of such Indebtedness and the receipt and
application of the proceeds therefrom, the Interest Coverage Ratio would be greater than (x) if the
Indebtedness is Incurred during the period beginning on the Closing Date and ending on the third
anniversary thereof 2.25:1 and (y) if the Indebtedness is Incurred thereafter 2.5:1.
Notwithstanding the foregoing, the Guarantor and any of its Restricted Subsidiaries (except as
specified below) may Incur each and all of the following: (i) Indebtedness outstanding at any time
(including, but not limited to Indebtedness under the Senior Secured Credit Facilities) in an
aggregate principal amount not to exceed $475 million, less any amount of such Indebtedness
permanently repaid as provided under Section 4.11; (ii) Indebtedness owed (A) to the Guarantor
evidenced by an unsubordinated promissory note or (B) to any of its Restricted Subsidiaries;
provided that any event which results in any such Restricted Subsidiary ceasing to be a Restricted
Subsidiary or any subsequent transfer of such Indebtedness (other than to the Guarantor or another
Restricted Subsidiary) shall be deemed,
in each case, to constitute an Incurrence of such Indebtedness not permitted by this clause (ii);
(iii) Indebtedness issued in exchange for or the net proceeds of which are used to refinance or
refund, then outstanding Indebtedness (other than Indebtedness Incurred under clause (i), (ii),
(iv), (viii) or (x) of this paragraph), and any refinancings thereof in an amount not to exceed the
amount so refinanced or refunded (plus premiums, accrued interest, fees and expenses); provided
that Indebtedness the proceeds of which are used to refinance or refund the Securities or
Indebtedness that is pari passu with, or subordinated in right of payment to the Securities or the
Securities Guarantees shall only be permitted under this clause (iii) if (A) in case the Securities
are refinanced in part or the Indebtedness to be refinanced is pari passu with the Securities or the
Securities Guarantees, such new Indebtedness, by its terms or by the terms of any agreement or
instrument pursuant to which such new Indebtedness is outstanding, is expressly made pari passu
with, or subordinate in right of payment to the remaining Securities or the Securities Guarantees,
as the case may be (B) in case the Indebtedness to be refinanced is subordinated in right of
payment to the Securities or the Securities Guarantees, such new Indebtedness, by its terms or by
the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or
remains outstanding, is expressly made subordinate in right of payment to the Securities or the
Securities Guarantees, as the case may be, at least to the extent that the Indebtedness to be
refinanced is subordinated to the Securities or the Securities Guarantees,
47
as the case may be, and (C) such new Indebtedness, determined as of the date of Incurrence of
such new Indebtedness, does not mature prior to the Stated Maturity of the Indebtedness to be
refinanced or refunded, and the Average Life of such new Indebtedness is at least equal to the
remaining Average Life of the Indebtedness to be refinanced or
refunded; and provided further that
in no event may Indebtedness of the Company or the Guarantor be refinanced by means of any
Indebtedness of any Restricted Subsidiary (other than the Company) pursuant to this clause (iii);
(iv) Indebtedness (A) in respect of performance, surety or appeal bonds provided in the ordinary
course of business, (B) under Currency Agreements and Interest Rate Agreements; provided that such
agreements (a) are designed solely to protect the Guarantor or its Restricted Subsidiaries against
fluctuations in foreign currency exchange rates or interest rates and (b) do not increase the
Indebtedness of the obligor outstanding at any time other than as a result of fluctuations in
foreign currency exchange rates or interest rates or by reason of fees, indemnities and
compensation payable thereunder; and (C) arising from agreements providing for indemnification,
adjustment of purchase price or similar obligations, or from Guarantees or letters of credit,
surety bonds or performance bonds securing any obligations of the Guarantor or any of its
Restricted Subsidiaries pursuant to such agreements, in any case Incurred in connection with the
disposition of any business, assets or Restricted Subsidiary of the Guarantor (other than
Guarantees of Indebtedness Incurred by any Person acquiring all or any portion of such business,
assets or Restricted Subsidiary of the Guarantor for the purpose of financing such acquisition), in
a principal amount not to exceed the gross proceeds actually received by the Guarantor or any
Restricted Subsidiary in connection with such disposition; (v) Indebtedness of the Guarantor or the
Company, to the extent the net proceeds thereof are promptly used to purchase Securities or Senior
Discount Debentures tendered in an Offer to Purchase (which in the case of the Senior Discount
Debentures shall be as defined in the Senior Discount Debenture Indenture) made as a result of a
Change of Control; (vi) Indebtedness of the Guarantor or the Company to the extent the net proceeds
thereof are
promptly deposited to defease the Securities in accordance with Article Eight and the Senior
Discount Debentures in accordance with Article Eight of the Senior Discount Debenture Indenture;
(vii) Guarantees of (A) Indebtedness of the Guarantor or the Company by any Restricted Subsidiary
provided the Guarantee of such Indebtedness is permitted by and made in accordance with Section
4.07 and (B) the Securities and the Senior Discount Debentures; (viii) Indebtedness of the Company
and the Guarantor under Capitalized Leases in an amount not to exceed at any one time outstanding
the greater of $75 million or 15% of the Adjusted Consolidated Net Tangible Assets of the
Guarantor; (ix) Indebtedness issued pursuant to the Capital Contribution Agreement (as in effect
from time to time) that provides that there will be no payment of principal or interest thereon
until the repayment in full, in cash, of the Securities; and (x) Indebtedness of the Guarantor or
the Company not to exceed $50 million at any one time
outstanding which may, but need not be,
Incurred under the Senior Secured Credit Facilities.
(b) Notwithstanding any other provision of this Section 4.03, the maximum amount of
Indebtedness that the Guarantor or a Restricted Subsidiary may Incur pursuant to
48
this Section 4.03 shall not be deemed to be exceeded, with respect to any outstanding
Indebtedness due solely to the result of fluctuations in the exchange rates of currencies.
(c) For purposes of determining any particular amount of Indebtedness under this Section
4.03, (1) Indebtedness Incurred under the Senior Secured Credit Facilities on or prior to the
Acquisition Date shall be treated as Incurred pursuant to clause (i) of the second paragraph of
this Section 4.03, (2) Guarantees, Liens or obligations with respect to letters of credit
supporting Indebtedness otherwise included in the determination of such particular amount shall not
be included and (3) any Liens granted pursuant to the equal and ratable provisions referred to in
Section 4.09 shall not be treated as Indebtedness. For purposes of determining compliance with
this Section 4.03, in the event that an item of Indebtedness meets the criteria of more than one of
the types of Indebtedness described in the above clauses (other than Indebtedness referred to in
clause (1) of the preceding sentence), the Company, in its sole discretion, shall classify such
item of Indebtedness and only be required to include the amount and type of such Indebtedness in
one of such clauses.
SECTION 4.04.
Limitation on Restricted Payments. Each of the Guarantor and the Company
will not, and will not permit any Restricted Subsidiary to, directly
or indirectly, (i) declare or pay any dividend or make any distribution on or with respect to its Capital Stock (other than (x)
dividends or distributions payable solely in shares of its Capital Stock (other than Disqualified
Stock) or in options, warrants or other rights to acquire shares of such Capital Stock and (y) pro
rata dividends or distributions on Common Stock of Restricted Subsidiaries (other than the Company)
held by minority stockholders, provided that such dividends do not in the aggregate exceed the
minority stockholders’ pro rata share of such Restricted Subsidiaries’ net income from the first
day of the fiscal quarter beginning immediately following the Closing Date) held by Persons other
than the Guarantor or any of its Restricted Subsidiaries, (ii) purchase, redeem, retire or
otherwise acquire for value any shares of Capital Stock of (A) the Company, the Guarantor or an
Unrestricted Subsidiary (including options, warrants or other rights to acquire such shares of
Capital Stock) held by any Person or (B) a Restricted Subsidiary (including options, warrants or
other rights to acquire such shares of Capital Stock) held by any Affiliate of the Guarantor (other
than a Wholly Owned Restricted Subsidiary) or any holder (or any Affiliate of such holder) of 5% or
more of the Capital Stock of the Company or the Guarantor, (iii) make any voluntary or
optional principal payment, or voluntary or optional redemption, repurchase, defeasance, or other
acquisition or retirement for value, of Indebtedness of the Company or the Guarantor that is
subordinated in right of payment to the Securities or to the Securities Guarantees, as the case may
be or (iv) make any Investment, other than a Permitted Investment, in any Person (such payments or
any other actions described in clauses (i) through (iv) above being collectively “Restricted
Payments”) if, at the time of, and after giving effect to,
the proposed Restricted Payment; (A) a
Default or Event of Default shall have occurred and be continuing, (B) the Guarantor could not
Incur at least $1.00 of Indebtedness under the first paragraph of Section 4.03 or (C) the aggregate
amount of all Restricted Payments (the
49
amount, if other than in cash, to be determined in good faith by the Board of Directors of the
Guarantor, whose determination shall be conclusive and evidenced by a Board Resolution) made after
the Closing Date shall exceed the sum of (1) 50% of the aggregate amount of the Adjusted
Consolidated Net Income (or, if the Adjusted Consolidated Net Income is a loss, minus 100% of the
amount of such loss) (determined by excluding income resulting from transfers of assets by the
Guarantor or a Restricted Subsidiary to an Unrestricted Subsidiary) accrued on a cumulative basis
during the period (taken as one accounting period) beginning on the first day of the fiscal quarter
beginning immediately following the Closing Date and ending on the last day of the last fiscal
quarter preceding the Transaction Date for which reports have been filed or provided to the Trustee
pursuant to Section 4.18 plus (2) the aggregate Net Cash Proceeds received by the Company or the
Guarantor after the Acquisition Date from a capital contribution or the issuance and sale (other
than pursuant to the Capital Contribution Agreement) permitted by this Indenture of Capital Stock
of the Company or the Guarantor (other than Disqualified Stock) to a Person who is not a Subsidiary
of the Company or the Guarantor, including an issuance or sale permitted by this Indenture of
Indebtedness of the Company or the Guarantor for cash subsequent to the Closing Date upon the
conversion of such Indebtedness into Capital Stock (other than Disqualified Stock) of the Company
or the Guarantor, or from the issuance to a Person who is not a Subsidiary of the Company or the
Guarantor of any options, warrants or other rights to acquire Capital Stock of the Company or the
Guarantor (in each case, exclusive of any Disqualified Stock or any options, warrants or other
rights that are redeemable at the option of the holder, or are required to be redeemed, prior to
the Stated Maturity of the Securities) plus (3) an amount equal to the net reduction in Investments
(other than reductions in Permitted Investments) in any Person resulting from payments of interest
on Indebtedness, dividends, repayments of loans or advances, or other transfers of assets, in each
case to the Guarantor or any Restricted Subsidiary or from the Net Cash Proceeds from the sale of
any such Investment (except, in each case, to the extent any such payment or proceeds are included
in the calculation of Adjusted Consolidated Net Income), or from redesignations of Unrestricted
Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of
“Investments”), not to exceed, in each case, the amount of Investments previously made by the
Company or any Restricted Subsidiary in such Person or Unrestricted Subsidiary.
The foregoing provision shall not be violated by reason of: (i) the payment of any dividend within
60 days after the date of declaration thereof if, at said date of declaration, such payment would
comply with the foregoing paragraph; (ii) the redemption, repurchase, retirement, defeasance or
other acquisition for value of Indebtedness of the
Company or the Guarantor that is subordinated in right of payment to the Securities or the
Securities Guarantees, as the case may be, including premium, if any, and accrued and unpaid
interest, with the proceeds of, or in exchange for, Indebtedness Incurred under clause (iii) of the
second paragraph of part (a) of Section 4.03; (iii) the repurchase, redemption or other acquisition
of Capital Stock of the Company or the Guarantor
50
(or options, warrants or other rights to acquire such Capital Stock)
in exchange for or out of the
proceeds of a substantially concurrent offering of, shares of Capital Stock (or options, warrants
or other rights to acquire such Capital Stock) (other than Disqualified Stock) of the Company or
the Guarantor (other than pursuant to the Capital Contribution
Agreement); (iv) the making of any
principal payment or the repurchase, redemption, retirement, defeasance or other acquisition for
value of Indebtedness of the Company or the Guarantor which is subordinated in right of payment to
the Securities or the Securities Guarantees, as the case may be in exchange for, or out of the
proceeds of, a substantially concurrent offering (other than pursuant to the Capital Contribution
Agreement) of, shares of the Capital Stock (other than Disqualified Stock) of the Company or the
Guarantor (or options, warrants or other rights to acquire such Capital Stock); (v) payments or
distributions to dissenting stockholders pursuant to applicable law, pursuant to or in connection
with a consolidation, merger or transfer of assets that complies with the provisions of this
Indenture applicable to mergers, consolidations and transfers of all or substantially all of the
property and assets of the Company or the Guarantor; (vi) the declaration or payment of dividends
on the Common Stock of the Guarantor or the Company following a Public Equity Offering of such
Common Stock, of up to 6% per annum of the Net Cash Proceeds received by the Guarantor or the
Company in such Public Equity Offering; (vii) Investments acquired as a capital contribution or in
exchange for Capital Stock (other than Disqualified Stock) of the
Guarantor or the Company; (viii)
(A) the repurchase by the Guarantor or the Company of Capital Stock of the Company from Mexico if
after giving effect to such repurchase and any Indebtedness Incurred to fund such repurchase the
Interest Coverage Ratio would be greater than 4.0:1 and (B) the repurchase of Capital Stock of the
Guarantor or the Company from Mexico, to the extent that the consideration paid to Mexico does not
exceed the amount of value added taxes refunded to the Company or the Guarantor as a result of
matters pending on the Closing Date with respect to such value added taxes and (C) the declaration
and payment of dividends in order to effect subclauses (A) or (B) of this clause (viii); and (ix)
the declaration and payment of dividends to the Guarantor in an amount not to exceed the
Guarantor’s operating expenses, corporate overhead costs and expenses and taxes; provided that the
amount so dividended is actually used for such purpose; and the declaration and payment of pro rata
dividends or distributions on Common Stock of the Company held by minority stockholders paid in
connection with dividends to the Guarantor permitted by this clause (ix), provided that such
dividends do not in the aggregate exceed the minority stockholders’ pro rata share of the Company’s
net income from the first day of the fiscal quarter beginning immediately following the Closing
Date, provided that, except in the case of clauses
(i) and (iii), no Default or Event of Default
shall have occurred and be continuing or occur as a consequence of the actions or payments set
forth herein.
Each Restricted Payment permitted pursuant to the preceding paragraph (other than the Restricted
Payment referred to in clause (ii) thereof, an exchange of Capital Stock for
Capital Stock or Indebtedness referred to in clause (iii) or (iv) thereof, an Investment referred
to in clause (vii) thereof, a repurchase of Capital Stock referred to in clause
51
(viii) (B) thereof and the dividends referred to in clauses (viii) and (ix) thereof), and
the Net Cash Proceeds from any issuance of Capital Stock referred to
in clauses (iii) and (iv),
shall be included in calculating whether the conditions of clause (C) of the first paragraph of
this Section 4.04 have been met with respect to any subsequent Restricted Payments. In the event
the proceeds of an issuance of Capital Stock of the Company or the Guarantor are used for the
redemption, repurchase or other acquisition of Securities or Indebtedness that is pari passu with
the Securities, then the Net Cash Proceeds of such issuance shall be included in clause (C) of the
first paragraph of this Section 4.04 only to the extent such proceeds are not used for such
redemption, repurchase or other acquisition of Indebtedness.
SECTION 4.05.
Limitation on Dividend and Other Payment Restrictions Affecting Restricted
Subsidiaries. The Guarantor will not, and will not permit any Restricted Subsidiary (other
than the Company) to, create or otherwise cause or suffer to exist or become effective any
consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary
(other than the Company) to (i) pay dividends or make any other distributions permitted by
applicable law on any Capital Stock of such Restricted Subsidiary owned by the Guarantor or any
other Restricted Subsidiary, (ii) pay any Indebtedness owed to the Guarantor or any other
Restricted Subsidiary, (iii) make loans or advances to the Guarantor or any other Restricted
Subsidiary or (iv) transfer any of its property or assets to the Guarantor or any other Restricted
Subsidiary.
The foregoing provisions shall not restrict any encumbrances or restrictions: (i) existing on the
Acquisition Date in the Senior Secured Credit Facilities, this Indenture, the Senior Discount
Debenture Indenture or any other agreements (including the Concession Title) in effect on the
Closing Date, and any extensions, refinancings, renewals or replacements of such agreements;
provided that the encumbrances and restrictions in any such extensions, refinancings, renewals or
replacements are no less favorable in any material respect to the Holders than those encumbrances
or restrictions that are then in effect and that are being extended, refinanced, renewed or
replaced; (ii) existing under or by reason of applicable law; (iii) existing with respect to any
Person or the property or assets of such Person acquired by the Guarantor or any Restricted
Subsidiary, existing at the time of such acquisition and not incurred in contemplation thereof,
which encumbrances or restrictions are not applicable to any Person or the property or assets of
any Person other than such Person or the property or assets of such Person so acquired; (iv) in the
case of clause (iv) of the first paragraph of this
Section 4.05, (A) that restrict in a customary
manner the subletting, assignment or transfer of any property or asset that is a lease, license,
conveyance or contract or similar property or asset, (B) existing by virtue of any transfer of,
agreement to transfer, option or right with respect to, or Lien on, any property or assets of the
Guarantor or any Restricted Subsidiary not otherwise prohibited by this Indenture or (C) arising or
agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not,
individually or in the aggregate, detract from the value of property or assets of the Guarantor or
any Restricted Subsidiary in any manner material to the Guarantor or any
52
Restricted Subsidiary; (v) with respect to a Restricted Subsidiary and imposed pursuant to
an agreement that has been entered into for the sale or disposition of all or substantially all of
the Capital Stock of, or property and assets of, such Restricted Subsidiary; or (vi) for the
benefit of any holder of a Lien permitted under Section
4.09. Nothing contained in this Section 4.05 shall prevent the Guarantor or any Restricted
Subsidiary from (1) creating, incurring, assuming or suffering to exist any Liens otherwise
permitted in Section 4.09 or (2) restricting the sale or other disposition of property or assets of
the Guarantor or any of its Restricted Subsidiaries that secure Indebtedness of the Guarantor or
any of its Restricted Subsidiaries.
SECTION 4.06. Limitation on the Issuance and Sale of Capital Stock of Restricted
Subsidiaries. The Guarantor will not sell, and will not permit any Restricted Subsidiary
(other than the Company), directly or indirectly, to issue or sell, any shares of Capital Stock of
a Restricted Subsidiary (including options, warrants or other rights to purchase shares of such
Capital Stock) except (i) to the Guarantor or a Wholly Owned Restricted Subsidiary, (ii) issuances
of director’s qualifying shares or sales to foreign nationals of shares of Capital Stock of foreign
Restricted Subsidiaries, to the extent required by applicable law, (iii) if, immediately after
giving effect to such issuance or sale, such Restricted Subsidiary would no longer constitute a
Restricted Subsidiary and any Investment in such Person remaining after giving effect to such
issuance or sale would have been permitted to be made under Section 4.04 if made on the date of
such issuance or sale or (iv) issuances of Common Stock that has no preference with respect to
dividends or upon liquidation, the Net Cash Proceeds of which are promptly applied as provided in
clause (A) or (B) of the first paragraph of Section 4.11.
SECTION 4.07.
Limitation on Issuances of Guarantees by Restricted
Subsidiaries. The
Guarantor will not permit any Restricted Subsidiary (other than the Company), directly or
indirectly, to Guarantee any Indebtedness of the Company or the Guarantor which is pari passu with
or subordinate in right of payment to the Securities or the Securities Guarantees, respectively
(“Guaranteed Indebtedness”), unless (i) such Restricted Subsidiary simultaneously executes and
delivers supplemental indentures to this Indenture providing for Guarantees (a “Subsidiary
Guarantee”) of payment of the Securities by such Restricted Subsidiary and (ii) such Restricted
Subsidiary waives and will not in any manner whatsoever claim or take the benefit or advantage of,
any rights of reimbursement, indemnity or subrogation or any other rights against the Company, the
Guarantor or any other Restricted Subsidiary as a result of any payment by such Restricted
Subsidiary under its Subsidiary Guarantee until the Securities have been paid in full, in U.S.
Dollars; provided that this paragraph shall not be applicable to any Guarantee of any Restricted
Subsidiary (x) that existed at the time such Person became a Restricted Subsidiary and was not
Incurred in connection with, or in contemplation of, such Person becoming a Restricted Subsidiary
or (y) of the Indebtedness Incurred under the Senior Secured Credit Facilities up to the amount of
borrowings and commitments thereunder on the Acquisition Date and additional
53
Indebtedness Incurred under the Senior Secured Credit Facilities if such Indebtedness is
then permitted to be Incurred under the second paragraph of clause (a) of Section 4.03. If the
Guaranteed Indebtedness is (A) pari passu with the Securities or the Securities Guarantees, then
the Guarantee of such Guaranteed Indebtedness shall be pari passu with, or
subordinated to the Subsidiary Guarantee or (B) subordinated to the Securities or the Securities
Guarantees, then the Guarantee of such Guaranteed Indebtedness shall be subordinated to the
Subsidiary Guarantees at least to the extent that the Guaranteed Indebtedness is subordinated to
the Securities or the Securities Guarantees, as the case may be.
Notwithstanding the foregoing, any Subsidiary Guarantee by a Restricted Subsidiary shall provide by
its terms that it shall be automatically and unconditionally released and discharged upon (i) any
sale, exchange or transfer, to any Person not an Affiliate of the Guarantor, of all of the
Guarantor’s and each Restricted Subsidiary’s Capital Stock
in or all or substantially all the
assets of such Restricted Subsidiary (which sale, exchange or transfer is not prohibited by this
Indenture) or (ii) the release or discharge of the Guarantee which resulted in the creation of such
Subsidiary Guarantee, except a discharge or release by or as a result of payment under such
Guarantee.
SECTION 4.08. Limitation on Transactions with Stockholders and Affiliates. The Guarantor
will not, and will not permit any Restricted Subsidiary to, directly or indirectly, enter into,
renew or extend any transaction (including, without limitation, the purchase, sale, lease or
exchange of property or assets, or the rendering of any service) with any holder (or any Affiliate
of such holder) of 5 % or more of any class of Capital Stock of the Guarantor or the Company or
with any Affiliate of the Guarantor or any Restricted Subsidiary, except upon fair and reasonable
terms no less favorable to the Guarantor or such Restricted Subsidiary than could be obtained, at
the time of such transaction or, if such transaction is pursuant to a written agreement, at the
time of the execution of the agreement providing therefor, in a comparable arm’s length transaction
with a Person that is not such a holder or an Affiliate.
The foregoing limitation does not limit, and shall not apply to (i) transactions (A) approved by a
majority of the disinterested members of the Board of Directors. (B) for which the Guarantor or a
Restricted Subsidiary delivers to the Trustee a written opinion of a United States nationally
recognized investment banking firm (or their Mexican affiliate) stating that the transaction is
fair to the Guarantor or such Restricted Subsidiary from a financial point of view or (C) involving
consideration of $1 million or less; (ii) any transaction between the Guarantor and any of its
Restricted Subsidiaries or between Restricted Subsidiaries; (iii) the payment of reasonable and
customary regular fees to directors of the Guarantor or the Company who are not employees of the
Guarantor or the Company; (iv) any payments or other transactions pursuant to any tax-sharing
agreement between the Guarantor and any Subsidiary of the Guarantor with which the Guarantor files
a consolidated tax return or with which the Guarantor is part of a consolidated group for tax
54
purposes: (v) contributions in cash to the common equity capital of the Guarantor or the
Company by KCSI, TMM or Grupo Servia: (vi) any Restricted Payments not prohibited by Section 4.04;
and (vii) any transaction between the Guarantor or any of its Subsidiaries and (A) TMM or any of
its Affiliates or (B) KCSI or any of its Affiliates, in each case, relating to the provision of
transportation or transportation related services approved in the manner provided in clause (i)(A)
above. Notwithstanding the foregoing, any transaction covered by the first paragraph of this
Section 4.08 and not covered by clauses (ii) through (vii) of this paragraph, (a) the aggregate
amount of which exceeds U.S.$5 million in value, must be approved or determined to be fair in the
manner provided for in clause (i) (A) or (B) above and (b) the aggregate amount of which exceeds
U.S.$15 million in value, must be determined to be fair in the manner provided for in clause (i)(B)
above; provided that such approval or determination of fairness shall not be required with respect
to (a) payments under the Management Services Agreements as in effect on the Closing Date; (b)
transactions with the Tex-Mex Railway; (c) transactions pursuant to the Capital Contribution
Agreement as such agreement is in effect on the Acquisition Date; (d) transactions with Mexico and
its Affiliates in the ordinary course of business, provided that Mexico and its Affiliates do not
beneficially own stock of the Company or the Guarantor having voting power in excess of 10% of the
total voting power of the Voting Stock of the Company or the Guarantor, as the case may be: or (e)
any equipment lease with an Affiliate, provided that an Officer’s Certificate is furnished to the
Trustee certifying that the terms of the equipment lease are no less favorable to the Company or
the Guarantor than the terms offered by an unrelated parry.
SECTION 4.09. Limitation on Liens. The Guarantor will not. and will not permit any
Restricted Subsidiary to. create, incur, assume or suffer to exist any Lien on any of its assets or
properties of any character, or on any shares of Capital Stock or Indebtedness of any Restricted
Subsidiary, without making effective provision for all of the Securities and Securities Guarantees
(together with the Senior Discount Debentures and guarantees thereof) and all other amounts due
under this Indenture to be directly secured equally and ratably with (or. if the obligation or
liability to be secured by such Lien is subordinated in right of payment to the Securities or the
Securities Guarantees, prior to) the obligation or liability secured by such Lien.
The foregoing limitation does not apply to (i) Liens existing on the Acquisition Date: (ii)
Liens securing obligations under the Senior Secured Credit Facilities; (iii) Liens granted after
the Closing Date on any assets or Capital Stock of the Guarantor, the Company or its Restricted
Subsidiaries created in favor of the Holders or the holders of the Senior Discount Debentures; (iv)
Liens with respect to the assets of a Restricted Subsidiary granted by such Restricted Subsidiary
to the Guarantor, the Company or a Wholly Owned Restricted Subsidiary to secure Indebtedness owing
to the Guarantor, the Company or such other Restricted Subsidiary; (v) Liens securing Indebtedness
which is Incurred to refinance secured Indebtedness which is permitted to be Incurred under clause
(iii) of the second paragraph of Section 4.03; provided that such Liens do not extend to or cover
any property or assets of
55
the Guarantor or any Restricted Subsidiary other than the property or assets securing the
Indebtedness being refinanced; (vi) Liens on any property or assets of a Restricted Subsidiary
securing Indebtedness of such Restricted Subsidiary permitted under Section 4.03; or (vii)
Permitted Liens.
SECTION 4.10. Limitation on Sale-Leaseback Transactions. The Guarantor will not, and
will not permit any Restricted Subsidiary to, enter into any sale-leaseback transaction involving
any of its assets or properties whether now owned or hereafter acquired, whereby the Guarantor or a
Restricted Subsidiary sells or transfers such assets or properties and then or thereafter leases
such assets or properties or any part thereof or any other assets or properties which the Guarantor
or such Restricted Subsidiary, as the case may be intends to use for substantially the same
purpose or purposes as the assets or properties sold or transferred.
The foregoing restriction does not apply to any sale-leaseback transaction if (i) the lease is
for a period including renewal rights of not in excess of three years, (ii) the lease secures or
relates to industrial revenue or pollution control bonds, (iii) the transaction is solely between
the Guarantor and the Company or solely between the Guarantor or the Company and any Wholly Owned
Restricted Subsidiary or solely between Wholly Owned Restricted Subsidiaries or (iv) the Guarantor
the Company or such Restricted Subsidiary, within twelve months after the sale or transfer of any
assets or properties is completed applies an amount not less than the net proceeds received from
such sale in accordance with clause (A) or (B) of the first paragraph of Section 4.11.
SECTION 4.11. Limitation on Asset Sales. The Guarantor will not. and will not permit
any Restricted Subsidiary to consummate any Asset Sale, unless (i) the consideration received by
the Guarantor or such Restricted Subsidiary is at least equal to the fair market value of the
assets sold or disposed of and (ii) at least 80% of the consideration received (excluding any
amount of Released Indebtedness) consists of cash or Temporary Cash Investments. In the event and
to the extent that the Net Cash Proceeds received by the Guarantor or any of its Restricted
Subsidiaries from one or more Asset Sales occurring on or after the Closing Date in any period of
12 consecutive months exceed 10% of Adjusted Consolidated Net Tangible Assets (determined as of the
date closest to the commencement of such 12-month period for which a consolidated balance sheet of
the Guarantor and its subsidiaries has been filed or provided to the Trustee pursuant to Section
4.18), then the Guarantor shall or shall cause the relevant Restricted Subsidiary to (i) within 12
months after the date Net Cash Proceeds so received exceed 10% of Adjusted Consolidated Net
Tangible Assets (A) apply an amount equal to such excess Net Cash Proceeds to permanently repay
unsubordinated Indebtedness of the Company or the Guarantor or Indebtedness of any Restricted
Subsidiary of the Guarantor, in each case owing to a Person other than the Guarantor or any of its
Restricted Subsidiaries or (B) invest an equal amount or the amount not so applied pursuant to
clause (A) (or enter into a definitive agreement committing to so
56
invest within 12 months after the date of such agreement), in property or assets (other than
current assets) of a nature or type or that are used in a business (or in a company having property
and assets of a nature or type, or engaged in a business) similar or related to the nature or type
of the property and assets of or the business of the Guarantor and its Restricted Subsidiaries
existing on the date of such investment and (ii) apply (no later than the end of the 12-month
period referred to in clause (i)) such excess Net Cash Proceeds (to the extent not applied pursuant
to clause (i)) as provided in the following paragraph of this Section 4.11. The amount of such
excess Net Cash Proceeds required to be applied (or to be committed to be applied) during such
12-month period as set forth in clause (i) of the preceding sentence and not applied as so required
by the end of such period shall constitute “Excess Proceeds.”
If, as of the first day of any calendar month the aggregate amount of Excess Proceeds not
theretofore subject to an Offer to Purchase pursuant to this
Section 4.11 totals at least $10
million the Company must commence not later than the fifteenth Business Day of such month, and
consummate an Offer to Purchase from the Holders on a pro rata basis (and pro rata between the
Holders of Securities and the holders of Senior Discount Debentures then outstanding) an aggregate
principal amount of Securities equal to the Excess Proceeds on such date at a purchase price equal
to 101% of the principal amount of the Securities plus accrued interest (if any) to the date of
purchase.
SECTION 4.12. Repurchase of Securities upon a Change of Control. The Company must
commence within 30 days of the occurrence of a Change of Control and consummate an Offer to
Purchase for all Securities then outstanding at a purchase price equal to 101% of the principal
amount plus interest (if any) to the date of purchase.
SECTION 4.13. Existence. Subject to Articles Four and Five of this Indenture each
of the Company and the Guarantor will do or cause to be done all things necessary to preserve and
keep in full force and effect its existence and the existence of each of us Restricted Subsidiaries
in accordance with the respective organizational documents of the Company the Guarantor and each
such Subsidiary and the rights (whether pursuant to charter partnership certificate agreement
statute or otherwise), material licenses and franchises of the Company the Guarantor and each such
Subsidiary; provided that the Company and the Guarantor shall not be required to preserve any such
right license or franchise or the existence of any Restricted Subsidiary (other than the Company
and the Guarantor) if (a) the maintenance or preservation thereof is no longer desirable in the
conduct of the business of the Company the Guarantor and its Restricted Subsidiaries taken as a
whole or (b) the failure to maintain or preserve any such right license or franchise does not have
a material adverse effect on the Company the Guarantor and its Restricted Subsidiaries taken as a
whole. In addition, each of the Company and the Guarantor as applicable agrees to take such
actions within a reasonable time after the Closing Date (and in any event prior to any proceeding
initiated regarding the dissolution of the Company or
57
the Guarantor), as may be necessary to ensure that it shall be in good standing under the laws of
the jurisdiction of its incorporation, provided that neither the Company nor the Guarantor will be
required to take such actions if the failure to be in good standing would not have a material
adverse effect on the Guarantor and its Restricted Subsidiaries taken as a whole.
SECTION 4.14. Payment of Taxes and Other Claims. The Guarantor will pay or
discharge and shall cause each of its Subsidiaries to pay or discharge or cause to be paid or
discharged before the same shall become delinquent (i) all material taxes assessments and
governmental charges levied or imposed upon (a) the Guarantor or any such Subsidiary (b) the
income or profits of any such Subsidiary which is a corporation or (c) the property of the
Guarantor or any such Subsidiary and (ii) all material lawful claims for labor materials and
supplies that if unpaid might by law become a lien upon the property of the Guarantor or any such
Subsidiary; provided that the Guarantor shall not be required to pay or discharge or cause to be
paid or discharged any such tax assessment charge or claim the amount applicability or validity
of which is being contested in good faith by appropriate proceedings and for which adequate
reserves have been established and so long as the non-payment of or failure to discharge any such
tax assessment charge or claim would not have a material adverse effect on the Guarantor and its
Restricted Subsidiaries taken as a whole.
SECTION 4.15. Maintenance of Properties and Insurance. The Guarantor will cause all
properties used or useful in the conduct of its business or the business of any of its Restricted
Subsidiaries to be maintained and kept in good condition repair and working order (reasonable wear
and tear excepted) and supplied with all necessary equipment and will cause to be made all
necessary repairs renewals replacements, betterments and improvements thereof all as in the
judgment of the Guarantor may be necessary so that the business carried on in connection therewith
may be properly and advantageously conducted at all times; provided that nothing in this Section
4.15 shall prevent the Guarantor or any such Subsidiary from
discontinuing the use, operation or
maintenance of any of such properties or disposing of any of them, if such discontinuance or
disposal is in the judgment of the Guarantor, desirable in the conduct of the business of the
Guarantor or such Subsidiary or would not have a material adverse effect on the Guarantor and its
Restricted Subsidiaries, taken as a whole.
The Guarantor will provide or cause to be provided, for itself and its Restricted
Subsidiaries, reasonably adequate insurance (including appropriate self-insurance) with respect to
its properties and business against loss or damage of the kinds customarily insured against by
corporations of established reputation engaged in the same or similar businesses similarly situated
and owning like properties, of such types and in such amounts, with such deductibles and by such
methods as shall be customary for corporations similarly situated in the industry in which the
Guarantor or such Restricted Subsidiary, as the case may be, is then conducting business, except to
the extent that failure to carry or maintain any
58
such insurance would not, singly or in the aggregate, have a material adverse effect on the
condition, financial or otherwise, or the earnings, business or operations of the Guarantor and its
subsidiaries, taken as a whole.
SECTION 4.16. Notice of Defaults. In the event that the Company becomes aware of
any Default or Event of Default, the Company, promptly after it becomes aware thereof, will give
written notice thereof to the Trustee.
SECTION
4.17. Compliance Certificates. (a) Each of the Company and the Guarantor
shall deliver to the Trustee, within 90 days after the end of the Company’s and the Guarantor’s
fiscal year, an Officers’ Certificate stating whether or not the signers know of any Default or
Event of Default that occurred during such fiscal year. Such certificates shall contain a
certification from the principal executive officer, principal financial officer or principal
accounting officer of the Company and the Guarantor, as applicable, that a review has been
conducted of the activities of the Company and the Guarantor, as applicable, and the Restricted
Subsidiaries and the Company’s and the Guarantor’s performance under this Indenture and that, to
their knowledge, the Company and the Guarantor have complied with all conditions and covenants
under this Indenture. For purposes of this Section 4.17. such compliance shall be determined
without regard to any period of grace or requirement of notice provided under this Indenture. If
the Officers of the Company and the Guarantor signing such certificate do know of such a Default or
Event of Default, the certificate shall describe the nature of any such Default or Event of Default
and its status.
(b) Each of the Company and the Guarantor shall deliver to the Trustee,
within 90 days after the end of its fiscal year, a certificate signed by the Company’s and the
Guarantor’s independent certified public accountants stating (i) that their audit examination
has included a review of the terms of this Indenture and the Securities as they relate to
accounting matters, (ii) that they have read the most recent Officers’ Certificate delivered
to the Trustee pursuant to paragraph (a) of this Section 4.17 and (iii) whether, in connection
with their audit examination, anything came to their attention that caused them to believe
that either the Company or the Guarantor was not in compliance with any of the terms,
covenants, provisions or conditions of Article Four and Section 5.01 of this Indenture as they
pertain to accounting matters and if any Default or Event of Default has come to their
attention, specifying the nature and period of existence thereof; provided that such
independent certified public accountants shall not be liable in respect of such statement by
reason of any failure to obtain knowledge of any such Default or Event of Default that would
not be disclosed in the course of an audit examination conducted in accordance with
generally accepted auditing standards in effect at the date of such examination.
(c) Within 90 days of the end of the Company’s and the Guarantor’s fiscal
year, each of the Company and the Guarantor shall deliver to the Trustee a list of all
59
Significant Subsidiaries. The Trustee shall have no duty with respect to any such list except to
keep it on file and available for inspection by the Holders.
SECTION 4.18. Commission Reports and Reports to Holders. At all times from and
after the earlier of (i) the date of the commencement of an Exchange Offer or the effectiveness of
the Shelf Registration Statement (the “Registration”) and (ii) December 15. 1997. in either case,
whether or not the Company or the Guarantor is then required to file reports with the Commission,
for so long as any Securities are outstanding, the Company and the Guarantor shall file with the
Commission all such reports and other information as they would be required to file with the
Commission by Sections 13(a) or 15(d) under the Exchange Act if they were subject thereto, unless
the Commission does not permit such filings, in which case the Company and the Guarantor shall
provide such reports and other information to the Trustee (within the same time periods that would
be applicable if the Company and the Guarantor were required and permitted to file reports with the
Commission) and instruct the Trustee to mail such reports and other information to Holders at their
addresses set forth on the Security Register. The Company and the Guarantor shall supply the
Trustee and each Holder or shall supply to the Trustee for forwarding to each such Holder, without
cost to such Holder, copies of such reports and other information. In addition, at all times prior
to the earlier of the date of the Registration and December 15. 1997. the Company and the Guarantor
shall, at their cost, deliver to each Holder, or supply to the Trustee for forwarding to each
Holder, quarterly and annual reports substantially equivalent to those which would be required by
the Exchange Act. In addition, at all times prior to the Registration, upon the request of any
Holder or any prospective purchaser of the Securities designated by a Holder, the Company and the
Guarantor shall supply to such Holder or such prospective purchaser the information required under
Rule 144A under the Securities Act.
SECTION
4.19. Waiver of Stay, Extension or Usury Laws. Each of the Company and the
Guarantor covenants (to the extent that it may lawfully do so) that it will not at any time insist
upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of any stay or
extension law or any usury law or other law that would prohibit or forgive the Company or the
Guarantor as applicable from paying all or any portion of the principal of premium if any or
interest on the Securities as contemplated herein wherever enacted now or at any time hereafter
in force or that may affect the covenants or the performance of this Indenture; and (to the extent
that it may lawfully do so) each of the Company and the Guarantor expressly waives all benefit or
advantage of any such law and covenants that it will not hinder delay or impede the execution of
any power herein granted to the Trustee but will suffer and permit the execution of every such
power as though no such law had been enacted.
SECTION 4.20. Additional Amounts. Any and all payments made by the Company and the
Guarantor to the Holders under or with respect to the Securities or the
60
Securities Guarantee, as the case may be, will be made free and clear of and without withholding or
deduction for or on account of any present or future tax, duty, levy, impost, assessment or other
governmental charge (including any interest or penalties with respect thereto) imposed or levied by
or on behalf of Mexico or any political subdivision thereof or by any authority or agency therein
or thereof having power to tax (hereinafter “Mexican Withholding Taxes”), unless the withholding or
deduction of such Mexican Withholding Taxes is required by law or by the interpretation or
administration thereof. In the event any Mexican Withholding Taxes are required to be so withheld
or deducted, the Company or the Guarantor, as the case may be, will (i) pay such additional amounts
(“Additional Amounts”) as will result in receipt by the Holders of such amounts as would have been
received by them had no such withholding or deduction been required, (ii) deduct or withhold such
Mexican Withholding Taxes and (iii) remit the full amount so deducted or withheld to the relevant
taxing or other authority. Notwithstanding the foregoing, no such Additional Amounts shall be
payable for or on account of:
(a) any Mexican Withholding Taxes which would not have been imposed
or levied on a Holder but for the existence of any present or former connection
between the Holder or beneficial owner of the Security and Mexico or any political
subdivision or territory or possession thereof or area subject to its jurisdiction,
including, without limitation, such Holder or beneficial owner (i) being or having
been a citizen or resident thereof, (ii) maintaining or having maintained an office,
permanent establishment, fixed base or branch therein, or (iii) being or having been
present or engaged in trade or business therein, except for a connection solely arising
from the mere ownership of, or receipt of payment under, such Security or Securities
Guarantee or the exercise of rights under such Security or Securities Guarantee or this
Indenture:
(b) except as otherwise provided, any estate, inheritance, gift, sales,
transfer, or personal property or similar tax, assessment or other governmental
charge:
(c) any Mexican Withholding Taxes that are imposed or levied by reason
of the failure by the Holder or beneficial owner of such Security to comply with any
certification, identification, information, documentation, declaration or other
reporting requirement which is required or imposed by a statute, treaty, regulation, general rule
or administrative practice as a precondition to exemption from, or reduction in the
rate of, the imposition, withholding or deduction of any Mexican Withholding Taxes:
provided that at least 60 days prior to (i) the first payment date with respect to which
the Company or the Guarantor shall apply this clause (c) and, (ii) in the event of a
change in such certification, identification, information, documentation, declaration or
other reporting requirement, the first payment date subsequent to such change, the
Company or the Guarantor, as the case may be, shall have notified the Trustee, in
61
writing, that the Holders or beneficial owners of the Securities will be required to
provide such certification, identification, information or documentation, declaration or
other reporting;
(d) any Mexican Withholding Taxes that are imposed or levied by reason
of the failure by the Holder or beneficial owner of such Security to timely comply
(subject to the conditions set forth below) with a written request by or on behalf of
the Company or the Guarantor, as the case may be, to provide information,
documentation or other evidence concerning the nationality, residence, identity, or
registration with the Ministry of Finance and Public Credit of the Holder or
beneficial owner of such Security that is necessary from time to time to determine the
appropriate rate of deduction or withholding of Mexican Withholding Taxes applicable
to such Holder or beneficial owner; provided that at least 60 days prior to the first
payment date with respect to which the Company or the Guarantor shall apply this
clause (d), the Company or the Guarantor, as the case may be, shall have notified the
Trustee, in writing, that such Holders or beneficial owners of the Securities will be
required to provide such information, documentation or other evidence;
(e) the presentation of such Security (where presentation is required) for
payment on a date more than 30 days after the date on which such payment became
due and payable or the date on which payment thereof is duly provided for,
whichever occurs later, except to the extent that the Holder or the beneficial owner
of such Security would have been entitled to Additional Amounts in respect of such
Mexican Withholding Taxes on presenting such Security for payment on any date
during such 30-day period;
(f) any Mexican Withholding Taxes that are payable only by other than
withholding or deduction: or
(g) any combination of item (a), (b), (c), (d), (e), or (f) above.
Notwithstanding the foregoing, the limitations on the Company’s and the Guarantor’s obligation
to pay Additional Amounts set forth in clauses (c) and (d) above shall not apply if the provision
of the certification, identification, information, documentation, declaration or other evidence
described in such, clauses (c) and (d) would be materially more onerous, in form, in procedure or
in the substance of information disclosed, to a Holder or beneficial owner of a Security (taking
into account any relevant differences between United States and Mexican law, regulation or
administrative practice) than comparable information or other applicable reporting requirements
imposed or provided for under United States federal income tax law (including the United
States-Mexico Income Tax Treaty), regulation (including proposed regulations) and administrative
practice. In addition, the limitations on the Company’s and the Guarantor’s obligation to pay
Additional Amounts set forth in clauses
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(c) and (d) above shall not apply if Rule 3.32.11 published in the Official Gazette of the
Federation of Mexico (Diario Oficial de la Federation) on
March 21, 1997 or a substantially similar
successor of such rule is in effect unless (i) the provision of the certification identification
information or other reporting requirements described in clauses (c) and (d) is expressly required
by statute regulation ruling or general rules or administrative practice in order to apply Rule
3.32.11 (or a substantially similar successor of such rule) the Company or the Guarantor cannot
obtain such certification identification information documentation declaration or other
evidence or satisfy any other reporting requirements on its own through reasonable diligence and
the Company or the Guarantor otherwise would meet the requirements for application of Rule 3.32.11
(or such successor of such rule) or (ii) in the case of a Holder or beneficial owner of a Security
that is a pension fund or other tax-exempt organization such Holder or beneficial owner would be
subject to Mexican Withholding Taxes at a rate less than that provided by Rule 3.32.11 if the
information documentation or other evidence required under clause (d) above were provided In
addition clause (c) above shall not be construed to require that a non-Mexican pension or
retirement fund a non-Mexican tax-exempt organization, a non-Mexican financial institution or any
other Holder or beneficial owner of a Security register with the Ministry of Finance and Public
Credit for the purpose of establishing eligibility for an exemption from or reduction of Mexican
Withholding Taxes.
The Company or the Guarantor, as the case may be will upon written request provide the
Trustee the Holders and the Paying Agent with a duly certified or authenticated copy of an
original receipt of the payment of Mexican Withholding Taxes which the Company or the Guarantor has
withheld or deducted in respect of any payments made under or with respect to the Securities or the
Securities Guarantee as the case may be.
In the event that Additional Amounts actually paid with respect to any Securities are based on
Mexican Withholding Taxes in excess of the appropriate Mexican Withholding Taxes applicable to the
Holder or beneficial owner of such Securities and as a result thereof such Holder or beneficial
owner is entitled to make a claim for a refund of such excess or credit such excess against
Mexican taxes then to the extent it is able to do so without jeopardizing its entitlement to such
refund or credit such Holder or beneficial owner shall by accepting the Securities be deemed to
have assigned and transferred all right title and interest to any claim for a refund or credit of
such excess to the Company. By making such assignment ami transfer the Holder or beneficial owner
makes no representation or warranty that the Company will be entitled to receive such claim for a
refund or credit and incurs no other obligation with respect thereto (including executing or
delivering any documents and paying any costs or expenses of the Company relating to obtaining such
refund). Nothing contained in this paragraph shall interfere with the right of each Holder or
beneficial owner of a Security to arrange its tax affairs in whatever manner it thinks fit nor
oblige any Holder or beneficial owner of a Security to claim any refund or credit or to disclose
any information relating to its tax affairs or any computations in respect
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thereof or to do anything that would prejudice its ability to benefit from any other credits
reliefs remissions or repayments to which it may be entitled.
If the Company is obligated to pay Additional Amounts with respect to any payment under or
with respect to the Securities (other than Additional Amounts payable on the date of this
Indenture) the Company will upon written request deliver to the Trustee an Officers’
Certificate stating the fact that such Additional Amounts are payable and the amounts so payable.
In addition, the Company will pay any stamp issue registration documentary or other similar
taxes and other duties (including interest and penalties with respect thereto) imposed or levied by
Mexico (or any political subdivision or taxing authority thereof or therein) in respect of the
creation issue and offering of the Securities.
SECTION
4.21. Comisión Nacional Bancaria Y de Valores. Promptly after the date of
this Indenture, the Company will furnish to the Comisión Nacional Bancaria de Valores all
information necessary to complete the registration of the Securities in the Special Section of the
National Registry of Securities and Intermediaries.
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION
5.01. When Company and Guarantor May Merge. Etc. Neither the Company nor
the Guarantor will consolidate with merge with or into, or sell,
convey, transfer, lease or
otherwise dispose of all or substantially all of its property and assets (as an entirety or
substantially an entirety in one transaction or a series of related transactions) to any Person or
permit any Person to merge with or into the Company or the Guarantor
(other than a merger,
consolidation, sale, transfer or lease solely between the Guarantor and the Company) unless: (i)
the Company or the Guarantor shall be the continuing Person, or the Person (if other than the
Company or the Guarantor) formed by such consolidation or into which the Company or the Guarantor
is merged or that acquired or leased such property and assets of the Company or the Guarantor shall
be a corporation organized and validly existing under the laws of Mexico the United States of
America or any jurisdiction of either such country and shall expressly assume by a supplemental
indenture executed and delivered to the Trustee all of the obligations of the Company or the
Guarantor as the case may be on all of the Securities or the Securities Guarantees as the case
may be and under this Indenture: (ii) immediately after giving effect to such transaction no
Default or Event of Default shall have occurred and be continuing: (iii) immediately after giving
effect to such transaction on a pro forma basis the Company or the Guarantor as the case may be
or any Person becoming the successor obligor of the Securities or the Securities Guarantees as the
case may be shall have a Consolidated Net Worth equal to or greater than the Consolidated
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Net Worth of the Company or the Guarantor, as the case may be. immediately prior to such
transaction; (iv) immediately after giving effect to such transaction on a pro forma basis the
Company or the Guarantor, as the case may be, or any Person becoming the successor obligor of the
Securities or the Securities Guarantees, as the case may be. could Incur at least $1.00 of
Indebtedness under the first paragraph of Section 4.03;
provided that this clause (iv) shall not
apply to a consolidation or merger with or into a Wholly Owned Restricted Subsidiary with a
positive net worth; provided that, in connection with any such merger or consolidation, no
consideration (other than Common Stock in the surviving Person, the Company or the Guarantor) shall
be issued or distributed to the stockholders of the Company or the
Guarantor; and (v) the Company
delivers to the Trustee an Officers’ Certificate (attaching the arithmetic computations to
demonstrate compliance with clauses (iii) and (iv) and Opinion of Counsel, in each case stating
that such consolidation, merger or transfer and such supplemental indenture complies with this
provision and that all conditions precedent provided for herein relating to such transaction have
been complied with; provided, however, that clauses (iii) and (iv) above do not apply if. in the
good faith determination of the Board of Directors of the Guarantor, whose determination shall be
evidenced by a Board Resolution, the principal purpose of such transaction is to change the
jurisdiction of incorporation of the Company or the Guarantor or to incorporate the Company or the
Guarantor under the laws of a state of the United States; and provided further that any such
transaction shall not have as one of its purposes the evasion of the foregoing limitations.
SECTION 5.02. Successor Substituted. Upon any consolidation or merger or any
sale, conveyance, transfer or other disposition of all or substantially all of the property and
assets of the Company or the Guarantor in accordance with Section 5.01 of this Indenture, the
successor Person formed by such consolidation or into which the Company or the Guarantor is merged
or to which such sale, conveyance, transfer or other disposition is made shall succeed to. and be
substituted for. and may exercise every right and power of. the Company or the Guarantor under this
Indenture with the same effect as if such successor Person had been named as the Company or the
Guarantor herein.
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default. An “Event of Default” shall occur with
respect to the Securities if:
(a) the Company or the Guarantor, as the case may be, defaults in the
payment of principal of (or premium, if any. on) any Security when the same becomes
due and payable at maturity, upon acceleration, redemption or otherwise:
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(b)
the Company or the Guarantor, as the case may be, defaults in the payment of interest on
any Security when the same becomes due and payable, and such default continues for a period of 30
days;
(c) the Company or the Guarantor, as the case may be. defaults in the performance of or
breaches the provisions of Article Five or fails to make or consummate an Offer to Purchase in
accordance with Section 4.11 or Section 4.12;
(d) the Company or the Guarantor defaults in the performance of or breaches any other covenant
or agreement of the Company or the Guarantor in this Indenture or under the Securities (other than
a default specified in clause (a),
(b) or (c) above), and such default or breach continues for a period of
30 consecutive days after written notice by the Trustee or the Holders of 25 % or
more in aggregate principal amount of the Securities;
(e) there occurs with respect to any issue or issues of Indebtedness of the Company or the
Guarantor or any of their Significant Subsidiaries having an outstanding principal amount of $10
million or more in the aggregate for all such issues of all such Persons, whether such Indebtedness
now exists or shall hereafter be created. (I) an event of default that has caused the holder
thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity and such
Indebtedness has not been discharged in full or such acceleration has not been rescinded or
annulled within 30 days of such acceleration and/or (II) the failure to make a principal payment at
the final (but not any interim) fixed maturity and such defaulted payment shall not have been made,
waived or extended within 30 days of such payment default;
(f) the Escrow Agreement shall cease to be in full force and effect or enforceable in
accordance with its terms except in accordance with its terms;
(g) any final judgment or order (not covered by insurance) for the payment of money in excess
of $10 million in the aggregate for all such final judgments or orders against all such Persons
(treating any deductibles. self-insurance or retention as not so covered) shall be rendered against
the Company, the Guarantor or any of their Significant Subsidiaries and shall not be paid or
discharged, and there shall be any period of 30 consecutive days following entry of the final
judgment or order that causes the aggregate amount for all such final judgments or orders
outstanding and not paid or discharged against all such Persons to exceed $10 million during which
a stay of enforcement of such final judgment or order, by reason of a pending appeal or otherwise,
shall not be in effect;
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(h) a court having jurisdiction in the premises enters a decree or order for (A)
relief in respect of the Company, the Guarantor or any of their Significant Subsidiaries in
an involuntary case under any applicable bankruptcy, suspension of payments, insolvency or
other similar law now or hereafter in effect. (B) appointment of a receiver, liquidator,
assignee, sindico, custodian, trustee, sequestrator or similar official of the Company, the
Guarantor or any of their Significant Subsidiaries or for all or substantially all of the
property and assets of the Company, the Guarantor or any of their Significant Subsidiaries
or (C) the winding up or liquidation of the affairs of the Company, the Guarantor or any of
their Significant Subsidiaries and in each case, such decree or order shall remain
unstayed and in effect for a period of 30 consecutive days;
(i) the Company, the Guarantor or any of their Significant Subsidiaries
(A) commences a voluntary case under any applicable bankruptcy, suspension of payments,
insolvency or other similar law now or hereafter in effect, or consents to the entry of an
order for relief in an involuntary case under any such law.
(B) consents to the appointment of or taking possession by a receiver, liquidator, assignee,
sindico, custodian, trustee, sequestrator or similar official of the Company, the Guarantor
or any of their Significant Subsidiaries or for all or substantially all of the property and
assets of the Company, the Guarantor or any of their Significant Subsidiaries or (C) effects
any general assignment for the benefit of creditors; or
(j) (A) the Concession Title shall cease to grant to the Company the rights
(including exclusive rights) originally provided therein and such cessation has had a
material adverse effect on the Guarantor and its Restricted
Subsidiaries taken as a whole;
(B) (x) the Concession Title shall for any reason be terminated and not reinstated within 30
days or (y) rights provided therein which were originally exclusive to the Company shall
become non-exclusive and the cessation of such exclusivity has had a material adverse effect
on the Guarantor and its Restricted Subsidiaries, taken as a whole; or (C) the operations of
the Northeast Rail Lines shall be commandeered or repossessed (a requisa) for a period of 90
days or more.
SECTION 6.02. Acceleration. If an Event of Default (other than an Event of Default
specified in clause (f), (h), (i) or (j) (B)(x) above that occurs with respect to the Company or
the Guarantor) occurs and is continuing under this Indenture, the Trustee or the Holders of at
least 25% in aggregate principal amount of the Securities then outstanding, by written notice to
the Company (and to the Trustee if such notice is given by the
Holders), may and the Trustee at
the request of such Holders shall declare the principal of premium,
if any, and accrued interest
on the Securities to be immediately due and payable. Upon a declaration of acceleration, such
principal of premium, if any, and accrued interest shall be immediately due and payable. In the
event of a declaration of acceleration because an Event of Default set forth in clause (e) above
has occurred and is continuing, such
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declaration of acceleration shall be automatically rescinded and annulled if the event of default
triggering such Event of Default pursuant to clause (e) shall be remedied or cured by the Company,
the Guarantor or the relevant Significant Subsidiary or waived by the holders of the relevant
Indebtedness within 60 days after the declaration of acceleration with respect thereto. If an
Event of Default specified in clause (f), (h), (i) or (j)(B)(x) above occurs with respect to the
Company or the Guarantor, the principal of, premium, if any. and accrued interest on the Securities
then outstanding shall ipso facto become and be immediately due and payable without any declaration
or other act on the part of the Trustee or any Holder. The Holders of at least a majority in
principal amount of the outstanding Securities, by written notice to the Company and to the
Trustee, may waive all past defaults and rescind and annul a declaration of acceleration and its
consequences if (i) all existing Events of Default, other than the nonpayment of the principal of.
premium, if any. and interest on the Securities that have become due solely by such declaration of
acceleration, have been cured or waived and (ii) the rescission would not conflict with any
judgment or decree of a court of competent jurisdiction.
SECTION 6.03. Other Remedies. If an Event of Default occurs and is continuing, the
Trustee may pursue any available remedy by proceeding at law or in equity to collect the payment of
principal of premium, if any, or interest on the Securities or to enforce the performance of any
provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of the Securities or
does not produce any of them in the proceeding.
SECTION
6.04. Waiver of Past Defaults. Subject to Sections 6.02, 6.07 and 9 02
the Holders of at least a majority in principal amount of the outstanding Securities, by notice to
the Trustee, may waive an existing Default or Event of Default and its consequences, except a
Default in the payment of principal of premium, if any, or interest on any Security as specified
in clause (a) or (b) of Section 6.01 or in respect of a covenant or provision of this Indenture
which cannot be modified or amended without the consent of the holder of each outstanding Security
affected. Upon any such waiver, such Default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no
such waiver shall extend to any subsequent or other Default or Event of Default or impair any right
consequent thereto.
SECTION 6.05. Control by Majority. The Holders of at least a majority in aggregate
principal amount of the outstanding Securities may direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee or exercising any trust or power conferred
on the Trustee: provided that the Trustee may refuse to follow any direction that conflicts with
law or this Indenture, that may involve the Trustee in personal liability, or that the Trustee
determines in good faith may be unduly prejudicial to the rights of Holders not joining in the
giving of such direction: and provided further that the Trustee
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may take any other action it deems proper that is not inconsistent with any directions
received from Holders of Securities pursuant to this Section 6.05.
SECTION 6.06. Limitation on Suits. A Holder may not institute any proceeding,
judicial or otherwise, with respect to this Indenture or the Securities, or for the appointment of
a receiver or trustee, or for any other remedy hereunder, unless:
(i) such Holder has previously given to the Trustee written notice of a
continuing Event of Default;
(ii) the Holders of at least 25% in aggregate principal amount of outstanding
Securities shall have made a written request to the Trustee to institute proceedings in
respect of such Event of Default in its own name as Trustee hereunder;
(iii) such Holder or Holders have offered to the Trustee indemnity reasonably
satisfactory to the Trustee against any costs, liabilities or expenses to be incurred in
compliance with such request;
(iv) the Trustee for 60 days after its receipt of such notice, request and offer
of indemnity has failed to institute any such proceeding; and
(v) during such 60-day period, the Holders of a majority in aggregate principal
amount of the outstanding Securities have not given the Trustee a direction that is
inconsistent with such written request.
For purposes of Section 6.05 of this Indenture and this Section 6.06. the Trustee shall comply
with TIA Section 316(a) in making any determination of whether the Holders of the required
aggregate principal amount of outstanding Securities have concurred in any request or direction of
the Trustee to pursue any remedy available to the Trustee or the Holders with respect to this
Indenture or the Securities or otherwise under the law.
A Holder may not use this Indenture to prejudice the rights of another Holder or to obtain a
preference or priority over such other Holder.
SECTION 6.07. Rights of Holders to Receive Payment. Notwithstanding any other
provision of this Indenture, the right of any Holder of a Security to receive payment of principal
of premium, if any. or interest on such Holder’s Security on or after the respective due dates
expressed on such Security, or to bring suit for the enforcement of any such payment on or after
such respective dates, shall not be impaired or affected without the consent of such Holder.
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SECTION
6.08. Collection Suit by Trustee. If an Event of Default in payment of
principal, premium or interest specified in clause (a) or (b) of Section 6.01 occurs and is
continuing, the Trustee may recover judgment in its own name and as trustee of an express trust
against the Company or any other obligor of the Securities for the whole amount of principal,
premium, if any, and accrued interest remaining unpaid, together with interest on overdue
principal, premium, if any, and. to the extent that payment of such interest is lawful, interest on
overdue installments of interest, in each case at the rate specified in the Securities, and such
further amount as shall be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel.
SECTION
6.09. Trustee May File Proofs of Claim. The Trustee may file such proofs of
claim and other papers or documents as may be necessary or advisable in order to have the claims of
the Trustee (including any claim for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07) and the Holders allowed in any judicial proceedings relative to the Company (or any
other obligor of the Securities), its creditors or its property and shall be entitled and empowered
to collect and receive any monies, securities or other property payable or deliverable upon
conversion or exchange of the Securities or upon any such claims and to distribute the same, and
any custodian, receiver, assignee, sindico, trustee, liquidator, sequestrator or other similar
official in any such judicial proceeding is hereby authorized by each Holder to make such payments
to the Trustee and. in the event that the Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agent and counsel, and any
other amounts due the Trustee under Section 7.07. Nothing herein contained shall be deemed to
empower the Trustee to authorize or consent to. or accept or adopt on behalf of any Holder, any
plan of reorganization, arrangement, adjustment or composition affecting the Securities or the
rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any
Holder in any such proceeding.
SECTION 6.10. Priorities. If the Trustee collects any money pursuant to this
Article Six, it shall pay out the money in the following order:
First:
to the Trustee for all amounts due under Section 7.07;
Second: to Holders for amounts then due and unpaid for principal of. premium,
if any, and interest on the Securities in respect of which or for the benefit of which such
money has been collected, ratably, without preference or priority of any kind, according to
the amounts due and payable on such Securities for principal,
premium, if any, and interest,
respectively; and
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Third: to the Company or any other obligors of the Securities. as
their interests may appear, or as a court of competent jurisdiction may direct.
The Trustee, upon prior written notice to the Company, may fix a record date and payment date
for any payment to Holders pursuant to this Section 6.10.
SECTION 6.11. Undertaking for Costs. In any suit for the enforcement of any right
or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted
by it as Trustee, a court may require any parry litigant in such suit to file an undertaking to pay
the costs of the suit, and the court may assess reasonable costs, including reasonable attorneys’
fees, against any parry litigant in the suit having due regard to the merits and good faith of the
claims or defenses made by the parry litigant. This Section 6.11 does not apply to a suit by the
Trustee, a suit by a Holder pursuant to Section 6.07 of this Indenture, or a suit by Holders of
more than 10% in principal amount of the outstanding Securities.
SECTION 6.12. Restoration of Rights and Remedies. If the Trustee or any Holder has
instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding
has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee
or to such Holder, then, and in every such case, subject to any determination in such proceeding,
the Company, the Guarantor, the Trustee and the Holders shall be restored severally and
respectively to their former positions hereunder and thereafter all rights and remedies of the
Company, the Guarantor, the Trustee and the Holders shall continue as though no such proceeding had
been instituted.
SECTION 6.13. Rights and Remedies Cumulative. Except as otherwise provided with
respect to the replacement or payment of mutilated, destroyed, lost or wrongfully taken Securities
in Section 2.09. no right or remedy herein conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or remedy, and every right and remedy
shall, to the extent permitted by law. be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder. or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
SECTION 6.14. Delay or Omission Not Waiver. No delay or omission of the Trustee or
of any Holder to exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an acquiescence
therein. Every right and remedy given by this Article Six or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee
or by the Holders, as the case may be.
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ARTICLE SEVEN
TRUSTEE
SECTION 7.01. General. The duties and responsibilities of the Trustee shall be as
provided by the TIA and as set forth herein. Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee 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.
Whether or not herein expressly so provided, every provision of this Indenture relating to the
conduct or affecting the liability of or affording protection to the Trustee shall be subject to
the provisions of this Article Seven.
SECTION 7.02. Certain Rights of Trustee. Subject to TIA Sections 315(a) through
(d):
(i) the Trustee may rely, and shall be protected in acting or refraining from
acting, upon any resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or
other paper or document believed by it to be genuine and to have been signed or presented by
the proper person. The Trustee need not investigate any fact or matter stated in any such
document;
(ii) before the Trustee acts or refrains from acting, it may require an Officers’
Certificate or an Opinion of Counsel, which shall conform to Section 11.04. The Trustee
shall not be liable for any action it takes or omits to take in good faith in reliance on
such certificate or opinion;
(iii) the Trustee may act through its attorneys and agents and shall not be
responsible for the misconduct or negligence of any attorney or agent appointed with due
care;
(iv) the Trustee shall be under no obligation to exercise any of the rights or
powers vested in it by this Indenture at the request or direction of any of the Holders,
unless such Holders shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities that might be incurred by it in compliance with
such request or direction;
(v) the Trustee shall not be liable for any action it takes or omits to take in
good faith that it believes to be authorized or within its rights or powers or for any
action it takes or omits to take in accordance with the written direction of the Holders of
a majority in principal amount of the outstanding Securities relating to the time.
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method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee, under this
Indenture;
(vi) whenever in the administration of this Indenture the Trustee shall deem it
desirable that a matter be proved or established prior to taking, suffering or omitting any
action hereunder. the Trustee (unless other evidence be herein specifically prescribed)
may. in the absence of bad faith on its part, rely upon an
Officers’ Certificate;
(vii) the Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may
see fit and, if the
Trustee shall determine to make such further inquiry or investigation, it shall be entitled
to examine the books, records and premises of the Company personally or by agent or
attorney;
(viii) the Trustee may consult with counsel of its selection and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it thereunder in good faith and in
reliance thereon; and
(ix) the Trustee shall not be deemed to have notice of any Default or Event of
Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless
written notice of any event which is in fact such a Default is received by the Trustee at
the Corporate Trust Office of the Trustee, and such notice references the Securities and
this Indenture.
SECTION 7.03. Individual Rights of Trustee. The Trustee, in its individual or any
other capacity, may become the owner or pledgee of Securities and may otherwise deal with the
Company or its Affiliates with the same rights it would have if it were not the Trustee. Any
Agent may do the same with like rights. However, the Trustee is subject to TIA Sections 310(b)
and 311.
SECTION 7.04. Trustee’s Disclaimer. The Trustee (i) makes no
representation as to the validity or adequacy of this Indenture or the Securities, (ii) shall not
he accountable for the Company’s use or application of the proceeds from the Securities and (iii)
shall not be responsible for any statement in the Securities other than its certificate of
authentication.
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SECTION 7.05. Notice of Default. If any Default or any Event of Default occurs and
is continuing and if such Default or Event of Default is known to a Responsible Officer of the
Trustee, the Trustee shall mail to each Holder in the manner and to the extent provided in TIA
Section 313(c) notice of the Default or Event of Default within 90 days after it occurs, unless
such Default or Event of Default has been cured; provided, however, that, except in the case of a
default in the payment of the principal of, premium, if any. or interest on any Security, the
Trustee shall be protected in withholding such notice if and so long as the board of directors, the
executive committee or a trust committee of directors and/or Responsible Officers of the Trustee in
good faith determine that the withholding of such notice is in the interest of the Holders.
SECTION
7.06. Reports bv Trustee to Holders. Within 60 days after each June 15,
beginning with June 15, 1998, the Trustee shall mail to each Holder as provided in TIA Section
313(c) a brief report dated as of such June 15, if required by TIA Section 313(a).
SECTION 7.07. Compensation and Indemnity. The Company shall pay to the Trustee and
any Paying Agent such compensation as shall be agreed upon in writing for its services. The
compensation of the Trustee and any Paying Agent shall not be limited by any law on compensation of
a trustee of an express trust. The Company shall reimburse the Trustee and any Paying Agent upon
request for all reasonable out-of-pocket expenses and advances incurred or made by the Trustee and
any Paying Agent. Such expenses shall include the reasonable compensation and expenses of the
Trustee’s or Paying Agent’s agents and counsel.
The Company shall indemnify the Trustee, its agents and officers, and any Paying Agent against
any and all losses, liabilities, obligations, damages, penalties. judgments, actions, suits,
proceedings, reasonable costs and expenses (including reasonable fees and disbursements of counsel)
of any kind whatsoever which may be incurred by the Trustee, its agents and officers, or any Paying
Agent arising out of or in connection with the acceptance or administration of its duties under
this Indenture; provided, however, that the Company need not reimburse any expense or indemnify
against any loss, obligation, damage, penalty, judgment, action, suit, proceeding, reasonable cost
or expense (including reasonable fees and disbursements of counsel) of any kind whatsoever which
may be incurred by the Trustee or any Paying Agent in connection with any investigative,
administrative or judicial proceeding (whether or not such indemnified party is designated a party
to such proceeding) in which it is determined that the Trustee, its agents and officers, or any
Paying Agent acted with negligence, bad faith or willful misconduct. The Trustee or any Paying
Agent shall notify the Company promptly of any claim for which it may seek indemnity. Failure by
the Trustee or any Paying Agent to so notify the Company shall not relieve the Company of its
obligations hereunder. unless the Company is materially prejudiced thereby. The Company shall
defend the claim and the Trustee or any Paying Agent shall cooperate in the defense.
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Unless otherwise set forth herein, the Trustee or any Paying Agent may have separate counsel
and the Company shall pay the reasonable fees and expenses of such counsel. The Company need not
pay for any settlement made without its consent, which consent shall not be unreasonably withheld.
To secure the Company’s payment obligations in this Section 7.07. the Trustee and any Paying Agent
shall have a lien prior to the Securities on all money or property held or collected by the Trustee
or any Paying Agent, in its capacity as Trustee or Paying Agent, except money or property held by
the Trustee pursuant to the Escrow Agreement and money or property held in trust by the Trustee or
any Paying Agent to pay principal of, premium, if any, and interest on particular Securities.
If the Trustee or Paying Agent incurs expenses or renders services after the occurrence of an Event
of Default specified in clause (g) or (h) of Section 6.01. the expenses and the compensation for
the services will be intended to constitute expenses of administration under Title 11 of the United
States Bankruptcy Code or any applicable federal or state law for the relief of debtors.
The provisions of this Section 7.07 shall survive the termination of this Indenture and the
resignation or removal of the Trustee.
SECTION
7.08. Replacement of Trustee. A resignation or removal of the Trustee and
appointment of a successor Trustee shall become effective only upon the successor Trustee’s
acceptance of appointment as provided in this Section 7.08.
The Trustee may resign at any time by so notifying the Company in writing at least 30 days prior to
the date of the proposed resignation. The Holders of a majority in principal amount of the
outstanding Securities may remove the Trustee by so notifying the Trustee in writing and may
appoint a successor Trustee with the consent of the Company. The Company may at any time remove the
Trustee by Company Order given at least 30 days prior to the date of the proposed removal.
If the Trustee resigns or is removed, or if a vacancy exists in the office of Trustee for any
reason, the Company shall promptly appoint a successor Trustee. Within one year after the
successor Trustee takes office, the Holders of a majority in principal amount of the outstanding
Securities may appoint a successor Trustee to replace the successor Trustee appointed by the
Company. If the successor Trustee does not deliver its written acceptance required by the next
succeeding paragraph of this Section 7.08 within 30 days after the retiring Trustee resigns or is
removed, the retiring Trustee, the Company or the Holders of a majority in principal amount of the
outstanding Securities may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
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A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee
and to the Company. Immediately after the delivery of such written acceptance, subject to the lien
provided in Section 7.07. (i) the retiring Trustee shall transfer all property held by it as
Trustee to the successor Trustee, (ii) the resignation or removal of the retiring Trustee shall
become effective and (iii) the successor Trustee shall have all the rights, powers and duties of
the Trustee under this Indenture. A successor Trustee shall mail notice of its succession to each
Holder.
If the Trustee is no longer eligible under Section 7.10. any Holder who satisfies the requirements
of TIA Section 310(b) may petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee.
The Company shall give notice of any resignation and any removal of the Trustee and each
appointment of a successor Trustee to all Holders. Each notice shall include the name of the
successor Trustee and the address of its Corporate Trust Office.
Notwithstanding replacement of the Trustee pursuant to this Section 7.08. the Company’s obligation
under Section 7.07 shall continue for the benefit of the retiring Trustee.
SECTION
7.09. Successor Trustee by Merger, Etc. If the Trustee consolidates with,
merges or converts into, or transfers all or substantially all of its corporate trust business to
another corporation or national banking association, the resulting, surviving or transferee
corporation or national banking association without any further act shall be the successor Trustee
with the same effect as if the successor Trustee had been named as the Trustee
herein.
SECTION
7.10. Eligibility. This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(l). The Trustee shall have a combined capital and surplus of
at least $25 million as set forth in its most recent published annual report of condition.
SECTION
7.11. Money Held in Trust. The Trustee shall not be liable for interest on any
money received by it except as the Trustee may agree with the Company. Money held in trust by the
Trustee need not be segregated from other funds except to the extent required by law and except for
money held in trust under Article Eight and Article Twelve of this Indenture.
SECTION
7.12. Withholding Taxes. The Trustee, as agent for the Company, shall exclude
and withhold from each payment of principal and interest and other amounts due hereunder or under
the Securities any and all withholding taxes applicable thereto as required by law. The Trustee
agrees to act as such withholding agent and in connection
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therewith, whenever any present or future taxes or similar charges are required to be withheld with
respect to any amounts payable in respect of the Securities, to withhold such amounts and timely
pay the same to the appropriate authority in the name of and on behalf of the Holders of the
Securities, that it will file any necessary withholding tax returns or statements when due, and
that, as promptly as possible after the payment thereof, it will deliver to each Holder appropriate
documentation showing the payment thereof, together with such additional documentary evidence as
such Holders may reasonably request from time to time.
ARTICLE EIGHT
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION
8.01. Termination of Company’s and Guarantor’s
Obligations. Except as otherwise
provided in this Section 8.01. the Company and the Guarantor may terminate its obligations under
the Securities and this Indenture if:
(i) all Securities previously authenticated and delivered (other than destroyed, lost or
stolen Securities that have been replaced or Securities that are paid pursuant to Section
4.01 or Securities for whose payment money or securities have theretofore been held in
trust and thereafter repaid to the Company, as provided in Section 8.05) have been
delivered to the Trustee for cancellation and the Company has paid all sums payable by it
hereunder; or
(ii) (A) all Securities not theretofore delivered to the Trustee have become due and
payable, mature within one year or all of them are to be called for redemption within one
year under arrangements satisfactory to the Trustee for giving the notice of redemption.
(B) the Company or the Guarantor irrevocably deposits or causes to be deposited in trust
with the Trustee during such one-year period, under the terms of an irrevocable trust
agreement in form and substance satisfactory to the Trustee, as trust funds solely for the
benefit of the Holders for that purpose, money or Government Securities sufficient (in the
opinion of a nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee), without consideration of any
reinvestment of any interest thereon, to pay principal, premium, if
any, and interest on
the Securities to maturity or redemption, as the case may be, and to pay all other sums
payable by it hereunder, (C) the Company or the Guarantor has paid all other sums payable
by it hereunder, and (D) the Company has delivered to the Trustee an Officers’ Certificate
and an Opinion of Counsel each stating (and such statements shall be true) that (1) all
conditions precedent provided for herein relating to the satisfaction and discharge of
this Indenture have been complied with and (2) such satisfaction and discharge will not
result in a breach or violation of, or constitute a default under, this Indenture or any
77
other material agreement or instrument (which, in the case of the Opinion of Counsel, would
be any other material agreement or instrument known to such counsel after due inquiry) to which
each of the Company and the Guarantor is a party or by which it is bound.
With respect to the foregoing clause (i), the Company’s obligations under Section 7.07 shall
survive. With respect to the foregoing clause (ii), the Company’s obligations in Sections
2.02, 2.03, 2.04, 2.05, 2.06, 2.07, 2.08, 2.09, 2.14, 4.01, 4.02, 7.07, 7.08, 8.04, 8.05 and 8.06
shall survive until the Securities are no longer outstanding. Thereafter, only the Company’s
obligations in Sections 7.07. 8.05 and 8.06 shall survive. After any such irrevocable deposit, the
Trustee upon request shall acknowledge in writing the discharge of the Company’s obligations, as
the case may be, under the Securities and this Indenture, and the Guarantor’s obligations under the
Securities Guarantee and this Indenture, except for those surviving obligations specified above.
SECTION
8.02. Defeasance and Discharge of Indenture. The Company and the Guarantor will
be deemed to have paid and will be discharged from any and all obligations in respect of the
Securities and the Guarantee on the 123rd day after the date of the deposit referred to in clause
(A) of this Section 8.02 if:
(A)
with reference to this Section 8.02, the Company or the Guarantor has irrevocably
deposited or caused to be irrevocably deposited with the Trustee (or another trustee
satisfying the requirements of Section 7.10 of this Indenture) and conveyed all right,
title and interest for the benefit of the Holders, under the terms of an irrevocable trust
agreement in form and substance reasonably satisfactory to the Trustee as trust funds in
trust, specifically pledged to the Trustee for the benefit of the Holders as security for
payment of the principal of, premium, if any, and interest, if any, on the Securities, and
dedicated solely to the benefit of the Holders, in and to (1) money in an amount. (2)
Government Securities that, through the payment of interest, premium,
if any, and
principal in respect thereof in accordance with their terms, will provide, not later than
one day before the due date of any payment referred to in this clause
(A), money in an
amount or (3) a combination thereof in an amount sufficient, in the opinion of a
nationally recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge, without
consideration of the reinvestment of such interest and after payment of all federal, state
and local taxes or other charges and assessments in respect-thereof payable by the
Trustee, the principal of, premium, if any, and accrued interest on the outstanding
Securities at the Stated Maturity of such principal or interest; provided that the Trustee
shall have been irrevocably instructed by the Company to apply such money or the proceeds
of such Government Securities to the payment of such principal,
premium, if any, and
interest with respect to the Securities;
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(B) such deposit will not result in a breach or violation of. or constitute a default
under, this Indenture or any other agreement or instrument to which the Company, the
Guarantor or any of their Subsidiaries is a party or by which the Company, the Guarantor
or any of their Subsidiaries is bound;
(C) immediately after giving effect to such deposit on a pro forma basis, no Default or
Event of Default shall have occurred and be continuing on the date of
such deposit; and no
Default or Event of Default shall occur during the period ending on the 123rd day after
such date of deposit;
(D) the Company shall have delivered to the Trustee (1) either (x) a ruling directed to the
Trustee received from the Internal Revenue Service to the effect that the Holders will not
recognize income, gain or loss for U.S. federal income tax purposes as a result of the Company’s
exercise of its option under this Section 8.02 and will be subject to United States federal income
tax on the same amount and in the same manner and at the same times as would have been the case if
such option had not been exercised or (y) an Opinion of Counsel to the same effect as the ruling
described in clause (1)(x) above accompanied by a ruling to that effect published by the Internal
Revenue Service, unless such Opinion of Counsel states that there has been a change in the
applicable United States federal income tax law since the date of this Indenture such that a ruling
from the Internal Revenue Service is no longer required, (2) either (x) an Opinion of Counsel to
the effect that, based upon Mexican tax law then in effect. Holders will not recognize income, gain
or loss for Mexican federal income tax (including withholding tax) purposes as a result of the
Company’s exercise of its option under this Section 8.02 and will be subject to Mexican federal
income tax (including withholding tax) on the same amount and in the same manner and at the same
times as would have been the case if such deposit, defeasance and discharge had not occurred, or
(y) a ruling
directed to the Trustee received from the Mexican taxing authorities to the same effect as the
Opinion of Counsel described in clause (2)(x) above, and (3) an Opinion of Counsel to the effect
that (x) the creation of the defeasance trust does not violate the Investment Company Act of 1940
and
(y) after the passage of 123 days following the deposit, the trust funds will not be subject to the
effect of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code or Section 15 of the
New York Debtor and
Creditor Law in a case commenced by or against the Company under
either such statute;
(E) if the Securities are then listed on a national securities exchange, the Company shall have
delivered to the Trustee an Opinion of Counsel to the effect that such deposit defeasance and
discharge will not cause the Securities to be delisted; and
(F) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, in each case stating that all conditions precedent provided for
79
herein relating to the defeasance contemplated by this Section 8.02 have been complied with.
Notwithstanding the foregoing, prior to the end of the 123-day period referred to in this Section
8.02, none of the Company’s obligations under this Indenture shall be discharged. Subsequent to
the end of such 123-day period with respect to this Section 8.02, the Company’s obligations in
Sections 2.02, 2.03, 2.04, 2.05, 2.06, 2.07, 2.08, 2.09, 2.14, 4.01, 4.02, 7.07, 7.08, 8.05 and
8.06 shall survive until the Securities are no longer outstanding. Thereafter, only the Company’s
obligations in Sections 7.07. 8.05 and 8.06 shall survive. If and when a ruling or an Opinion of
Counsel referred to in clauses (D)(1) and (D)(2) of this Section 8.02 may be provided specifically
without regard to, and not in reliance upon, the continuance of the Company’s obligations under
Section 4.01, then the Company’s obligations under such Section 4.01 shall cease upon delivery to
the Trustee of such ruling or Opinion of Counsel and compliance with the other conditions precedent
provided for herein relating to the defeasance contemplated by this Section 8.02.
After any such irrevocable deposit, the Trustee upon request shall acknowledge in writing the
discharge of the Company’s obligations under the Securities and this Indenture except for those
surviving obligations in the immediately preceding paragraph.
SECTION
8.03. Defeasance of Certain Obligations. The Company may omit to comply with
any term, provision or condition set forth in clauses (iii) and (iv) of Section 5.01 and Sections
4.03 through 4.18, and clause (c) of Section 6.01 with respect to clauses (iii) and (iv) of Section
5.01, and clauses (d), (e) and (g) of Section 6.01 shall be deemed not to be Events of Default, in
each case with respect to the outstanding Securities, if:
(i) with reference to this Section 8.03, the Company has irrevocably deposited or caused to
be irrevocably deposited with the Trustee (or another trustee satisfying the requirements of
Section 7.10) and conveyed all right, title and interest to the Trustee for the benefit of the
Holders, under the terms of an irrevocable trust agreement in form and substance satisfactory to
the Trustee as trust funds in trust, specifically pledged to the Trustee for the benefit of the
Holders as security for payment of the principal of, premium, if any, and interest, if any, on the
Securities, and dedicated solely to the benefit of the/Holders, in and to (A) money in an amount.
(B) Government Securities that, through the payment of interest and principal in respect-thereof in
accordance with their terms, will provide, not later than one day before the due date of any
payment referred to in this clause (i), money in an amount or (C) a combination thereof in an
amount sufficient, in the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to pay and discharge,
without consideration of the reinvestment of such interest and after payment of all federal, state,
local and foreign
80
taxes
or other charger and assessments in respect thereof payable by the Trustee, the principal of,
premium, if any, and interest on the outstanding Securities on the Stated Maturity of such
principal or interest; provided that the Trustee shall have been irrevocably instructed to apply
such money or the proceeds of such Government Securities to the payment of such principal, premium,
if any, and interest with respect to the Securities:
(ii) such deposit will not result in a breach or violation of, or constitute a default under,
this Indenture or any other material agreement or instrument to which the Company, the Guarantor or
any of their Subsidiaries is a party or by which the Company, the Guaranior or any of their
Subsidiaries is bound;
(iii) immediately after giving effect to such deposit on a pro forma basis, no Default or Event
of Default shall have occurred and be continuing on the date of such deposit; and no Default or
Event of Default shall occur during the period ending on the 123rd day after such date of deposit;
(iv) the Company has delivered to the Trustee an Opinion of Counsel to the effect that (A)(x)
the creation of the defeasance trust does not violate the Investment Company Act of 1940 and (y)
after the passage of 123 days following the deposit, the trust funds will not be subject to the
effect of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code or Section 15 of the
New York Debtor and
Creditor Law in a case commenced by or against the Company under either such statute, (B) the
Holders will not recognize income, gain or loss for United States federal income tax purposes as a
result of such deposit and the defeasance of the obligations referred to in the first paragraph of
this Section 8.03 and will be subject to United States federal income tax on the same amount and in
the same manner and at the same times as would have been the case if such deposit and defeasance
had not occurred and (C) the Holders will not recognize income, gain or loss for Mexican federal
income tax (including withholding tax) purposes as a result of such deposit and the defeasance of
the obligations referred to in the first paragraph of this Section 8.03 and will be subject to
Mexican federal income tax (including withholding tax) on the same amount and in the same manner
and at the same times as would have been the case if such deposit and defeasance had not occurred;
(v) if the Securities are then listed on a national securities exchange, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that such deposit defeasance and
discharge will not cause the Securities to be delisted; and
(vi) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, in each case stating that all conditions precedent provided for
81
herein relating to the defeasance contemplated by this Section 8.03 have been complied with.
SECTION
8.04. Application of Trust Money. Subject to Section 8.06, the Trustee or Paying
Agent shall hold in trust money or Government Securities deposited with it pursuant to Section
8.01, 8.02 or 8.03, as the case may be, and shall apply the deposited money and the money from
Government Securities in accordance with the Securities and this Indenture to the payment of
principal of, premium, if any, and interest on the Securities; but such money need not be
segregated from other funds except to the extent required by law.
SECTION
8.05.
Repayment to Company. Subject to Sections 7.07, 8.01, 8.02 and 8.03, the
Trustee and the Paying Agent shall promptly pay to the Company upon request set forth in an
Officers’ Certificate any excess money held by them at any time and thereupon shall be relieved
from all liability with respect to such money. The Trustee and the Paying Agent shall pay to the
Company upon request any money held by them for the payment of principal, premium, if any, or
interest that remains unclaimed for two years;
provided that the Trustee or such Paying Agent
before being required to make any payment may cause to be published at the expense of the Company
once in a newspaper of general circulation in the City of
New York or mail to each Holder entitled
to such money at such Holder’s address (as set forth in the Security Register) notice that such
money remains unclaimed and that after a date specified therein (which shall be at least 30 days
from the date of such publication or mailing) any unclaimed balance of such money then remaining
will be repaid to the Company. After payment to the Company. Holders entitled to such money must
look to the Company for payment as general creditors unless an applicable law designates another
Person, and all liability of the Trustee and such Paying Agent with respect to such money shall
cease.
SECTION
8.06. Reinstatement. If the Trustee or Paying Agent is unable to apply any
money or Government Securities in accordance with Section 8.01, 8.02 or 8.03, as the case may be,
by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, the Company’s and the
Guarantor’s obligations under this Indenture and the Securities shall be revived and reinstated as
though no deposit had occurred pursuant to Section 8.01, 8.02 or
8.03, as the case may be, until such time as the Trustee or Paying Agent is permitted to apply all
such money or Government Securities in accordance with Section 8.01, 8.02 or 8.03, as the case may
be; provided that, if the Company has made any payment of principal of, premium, if any, or
interest on any Securities because of the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such Securities to receive such payment from the money
or Government Securities held by the Trustee or Paying Agent.
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ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION
9.01. Without Consent of Holders. The Company and the Guarantor, when
authorized by resolutions of its Board of Directors, and the Trustee may amend or supplement this
Indenture or the Securities without notice to or the consent of any Holder:
(1) to cure any ambiguity, defect or inconsistency in this Indenture; provided that such
amendments or supplements shall not adversely affect the interests of the Holders in any material
respect:
(2) to comply with Article Five;
(3) to comply with any requirements of the Commission in connection with the
qualification of this Indenture under the TIA;
(4) to evidence and provide for the acceptance of appointment hereunder by a successor
Trustee; or
(5) to make any change that does not materially and adversely affect the rights of any
Holder.
SECTION
9.02. With Consent of Holders. Subject to Sections 6.04 and 6.07 and without
prior notice to the Holders, the Company and the Guarantor, when authorized by its Board of
Directors (as evidenced by a Board Resolution), and the Trustee may amend this Indenture, the
Securities and the Escrow Agreement with the written consent of the Holders of a majority in
principal amount of the Securities then outstanding, and the Holders of a majority in principal
amount of the Securities then outstanding by written notice to the Trustee may waive future
compliance by the Company with any provision of this Indenture, the Securities and the Escrow
Agreement.
Notwithstanding the provisions of this Section 9.02. without the consent of each Holder affected,
an amendment or waiver, including a waiver pursuant to Section 6.04. may not:
(i) change the Stated Maturity of the principal of, or any installment of interest on, any
Security, or reduce the principal amount thereof or the rate of interest thereon or any premium
payable upon the redemption thereof, or adversely affect any right of repayment at the option of
any Holder of any Security, or change any place of payment where, or the currency in which, any
Security or any premium or the interest thereon is payable, or impair the right to institute suit
for the enforcement of
83
any
such payment on or after the Stated Maturity thereof (or, in the case of redemption, on or
after the Redemption Date);
(ii) reduce the percentage in principal amount of outstanding Securities the consent of whose
Holders is required for any such supplemental indenture, for any waiver of compliance with certain
provisions of this Indenture or certain Defaults and their consequences provided for in this
Indenture;
(iii)
waive a Default in the payment of principal of, premium, if any. or interest on, any
Security:
(iv) release the Guarantor from its Securities Guarantee;
(v) modify Section 4.20 in a manner adverse to the Holders;
(vi) modify Article Twelve or the Escrow Agreement in a manner that adversely affects the
rights of any Holder in any material respect; or
(vii)
modify any of the provisions of this Section 9.02, except to increase any such percentage or
to provide that certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each outstanding Security affected thereby.
It shall not be necessary for the consent of the Holders under this Section 9.02 to approve the
particular form of any proposed amendment, supplement or waiver, but it shall be sufficient if such
consent approves the substance thereof.
After an amendment, supplement or waiver under this Section 9.02 becomes effective, the Company
shall mail to the Holders affected thereby a notice briefly describing the amendment, supplement or
waiver. The Company will mail supplemental indentures to Holders upon request. Any failure of
the Company to mail such notice, or any defect therein, shall not however, in any way impair or
affect the validity of any such supplemental indenture or waiver.
Notwithstanding
the provisions of Section 9.01 and Section 9.02, no amendment or modification to
the provisions of Article Eleven shall be effected, or be
effective, without the prior written
consent of all holders of Secured Obligations then outstanding.
SECTION
9.03. Revocation and Effect of Consent. Until an amendment or waiver becomes
effective, a consent to it by a Holder is a continuing consent by the Holder and every subsequent
Holder of a Security or portion of a Security that evidences the same
84
debt as the Security of the consenting Holder, even if notation of the consent is not made on any
Security. However, any such Holder or subsequent Holder may revoke the consent as to its Security
or portion of its Security. Such revocation shall be effective only if the Trustee receives the
notice of revocation before the date the amendment, supplement or waiver becomes effective. An
amendment, supplement or waiver shall become effective on receipt by the Trustee of written
consents from the Holders of the requisite percentage in principal amount of the outstanding
Securities.
The
Company may, but shall not be obligated to, fix a record date for the purpose of determining
the Holders entitled to consent to any amendment, supplement or
waiver. If a record date is fixed,
then, notwithstanding the last two sentences of the immediately preceding paragraph, those persons
who were Holders at such record date (or their duly designated proxies) and only those persons
shall be entitled to consent to such amendment, supplement or waiver or to revoke any consent
previously given, whether or not such persons continue to be Holders after such record date. No
such consent shall be valid or effective for more than 90 days after such record date.
After
an amendment, supplement or waiver becomes effective, it shall bind
every Holder unless it is of
the type described in any of clauses (i) through (vi) of Section 9.02. In case of an amendment or
waiver of the type described in clauses (i) through (vi) of
Section 9.02, the amendment or waiver
shall bind each Holder who has consented to it and every subsequent Holder of a Security that
evidences the same indebtedness as the Security of the consenting Holder.
SECTION 9.04. Notation on or Exchange of Securities. If an amendment, supplement or
waiver changes the terms of a Security, the Trustee may require the Holder to deliver it to the
Trustee. The Trustee may place an appropriate notation on the Security about the changed terms
and return it to the Holder and the Trustee may place an appropriate notation on any Security
thereafter authenticated. Alternatively, if the Company or the Trustee so determines, the Company
in exchange for the Security shall issue and the Trustee shall authenticate a new Security that
reflects the changed terms. Failure to make the appropriate notation or issue a new Security
shall not affect the validity and effect of such amendment, supplement or waiver.
SECTION
9.05. Trustee to Sign Amendments, Etc. The Trustee shall be entitled to receive,
and shall be fully protected in relying upon, an Opinion of Counsel
stating that the execution of
any amendment, supplement or waiver authorized pursuant to this Article Nine is authorized or
permitted by this Indenture. Subject to the preceding sentence, the Trustee
shall sign such amendment, supplement or waiver if the same does not adversely affect the rights of
the Trustee. The Trustee may, but shall not be obligated to, execute any such amendment,
supplement or waiver that affects the Trustee’s own rights, duties or immunities under this
Indenture or otherwise.
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SECTION 9.06. Conformity with Trust Indenture Act. Every supplemental indenture executed
pursuant to this Article Nine shall conform to the requirements of the TIA as then in effect.
ARTICLE TEN
GUARANTEE OF SECURITIES
SECTION
10.01. Securities Guarantee. Subject to the provisions of this Article Ten, the
Guarantor hereby fully, unconditionally and irrevocably guarantees to each Holder and to the
Trustee for itself and on behalf of the Holders on an unsecured, unsubordinated basis: (i) the due
and punctual payment of the principal of, premium, if any, on and interest on (and Additional
Amounts with respect to) each Security, when and as the same shall become due and payable, whether
at maturity, by acceleration or otherwise, the due and punctual payment of interest on the overdue
principal of and interest, if any, on (and Additional Amounts with respect to) the Securities, to
the extent lawful, and the due and punctual performance of all other obligations of the Company to
the Holders or the Trustee, all in accordance with the terms of such Security and this Indenture
and (ii) in the case of any extension of time of payment or renewal of any Securities or any of
such other obligations, that the same will be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal, at Stated Maturity, by acceleration or
otherwise. The Guarantor hereby waives diligence, presentment, demand of payment, filing of claims
with a court in the event of merger or bankruptcy of the Company, any right to require a proceeding
first against the Company, the benefit of discussion, protest or notice with respect to any such
Security or the debt evidenced thereby and all demands whatsoever, and covenants that this
Securities Guarantee will not be discharged as to any such Security except by payment in full of
the principal thereof and interest thereon and as provided in
Section 8.01 and Section 8.02
(subject to Section 8.06). The maturity of the obligations Guaranteed hereby may be accelerated as
provided in Article Six for the purposes of this Article Ten. In the event of any declaration of
acceleration of such obligations as provided in Article Six, such obligations (whether or not due
and payable) shall forthwith become due and payable by the Guarantor for the purpose of this
Article Ten. In addition, without limiting the foregoing provisions, upon the effectiveness of an
acceleration under Article Six, the Trustee shall promptly make a demand for payment on the
Securities under the Securities Guarantee provided for in this Article Ten.
If the Trustee or any Holder is required by any court or otherwise to return to the Company or the
Guarantor, or any custodian, receiver, liquidator, trustee, sequestrator or other similar official
acting in relation to the Company or the Guarantor, any amount paid to the Trustee or such Holder
in respect of a Security, this Securities Guarantee, to the extent theretofore discharged, shall be
reinstated in full force and effect. The Guarantor further agrees, to the fullest extent that it
may lawfully do so, that, as between it, on the one hand,
86
and the Holders and the Trustee, on the other hand, the maturity of the obligations Guaranteed
hereby may be accelerated as provided in Article Six hereof for the purposes of this Securities
Guarantee, notwithstanding any stay, injunction or other prohibition extant under any applicable
bankruptcy law preventing such acceleration in respect of the obligations Guaranteed hereby.
Until such time as the Securities are fully and finally paid, including all interest, premium,
principal and liquidated damages with respect thereto, the Guarantor hereby irrevocably waives any
claim or other rights which it may now or hereafter acquire against the Company that arise from the
existence, payment, performance or enforcement of its obligations under this Securities Guarantee
and this Indenture, including, without limitation, any right of subrogation, reimbursement,
exoneration, contribution, indemnification, any right to participate in any claim or remedy of the
Holders against the Company or any collateral which any such Holder or the Trustee on behalf of
such Holder hereafter acquires, whether or not such claim, remedy or right arises in equity, or
under contract, statute or common law, including, without limitation, the right to take or receive
from the Company, directly or indirectly, in cash or other property or by set-off or in any other
manner, payment or security
on account of such claim or other rights. If any amount shall be paid to the Guarantor in
violation of the preceding sentence and the principal of, premium, if
any, and accrued interest on
the Securities shall not have been paid in full, such amount shall be deemed to have been paid to
the Guarantor for the benefit of, and held in trust for the benefit of, the Holders, and shall
forthwith be paid to the Trustee for the benefit of the Holders to be credited and applied upon the
principal of, premium, if any, and accrued interest on the Securities. The Guarantor acknowledges
that it will receive direct and indirect benefits from the issuance of the Securities pursuant to
this Indenture and that the waivers set forth in this Section 10.01 are knowingly made in
contemplation of such benefits.
The Securities Guarantee set forth in this Section 10.01 shall not be valid or become obligatory
for any purpose with respect to a Security until the certificate of authentication on such Security
shall have been signed by or on behalf of the Trustee.
SECTION 10.02. Obligations Unconditional. Subject to Section 10.05. nothing contained in
this Article Ten or elsewhere in this Indenture or in the Securities is intended to or shall
impair, as among the Guarantor and the Holders, the obligation of the Guarantor, which is absolute
and unconditional, upon failure by the Company, to pay to the Holders
the principal of, premium, if
any, and interest on the Securities as and when the same shall become due and payable in accordance
with their terms, or is intended to or shall affect the relative rights of the Holders and
creditors of the Guarantor, nor shall anything herein or therein prevent any Holder or the Trustee
on their behalf from exercising all remedies otherwise permitted by applicable law upon default
under this Indenture.
87
Without limiting the foregoing, nothing contained in this Article Ten will restrict the right of
the Trustee or the Holders to take any action to declare the Securities Guarantee to be due and
payable prior to the Stated Maturity of the Securities pursuant to Section 6.02 or to pursue any
rights or remedies hereunder.
SECTION 10.03. Notice to Trustee. The Guarantor shall give prompt written notice to the
Trustee of any fact known to the Guarantor which would prohibit the making of any payment to or by
the Trustee in respect of the Securities Guarantee pursuant to the provisions of this Article Ten.
SECTION 10.04. This Article Not to Prevent Events of Default. The failure to make a payment
on account of principal of, premium, if any, or interest on the Securities by reason of any
provision of this Article will not be construed as preventing the occurrence of an Event of
Default.
SECTION 10.05. Net Worth Limitation. Notwithstanding any other provision of this
Indenture or the Securities, the Securities Guarantee shall not be enforceable against the
Guarantor in an amount in excess of the net worth of the Guarantor at the time that determination
of such net worth is, under applicable law, relevant to the enforceability of the Securities
Guarantee. Such net worth shall include any claim or future claim of the Guarantor against the
Company for reimbursement and any claim against any grantor of a Guarantee for contribution.
ARTICLE ELEVEN
INTERCREDITOR PROVISIONS
SECTION 11.01. General. In order to induce the Secured Creditors to extend credit to the
Company and the other Credit Parties pursuant to the Secured Obligations, the Holders hereby
acknowledge and agree, on behalf of themselves and all of their successors and assigns that the
Secured Creditors shall have the benefit of the agreements contained in this Article Eleven. The
provisions of this Article Eleven are made for the benefit of the Secured Creditors and may be
enforced directly by them.
SECTION 11.02. Concession Compensation. The Holders hereby agree for the benefit of the
Secured Creditors, that if at any time and for any reason whatsoever, any Concession Compensation
or proceeds thereof are received by any Credit Party or the Holders at a time when all Secured
Obligations have not been repaid in full in cash or cash equivalents, such amounts shall be turned
over by the Holders to the Secured Creditors until all Secured Obligations have been repaid in full
in cash or cash equivalents in accordance with the requirements of the Senior Secured Credit
Facilities or other relevant documentation.
88
SECTION 11.03. Payment over of Distributions. If a distribution is made to any
Holder that because of the provisions of this Article Eleven
should not have been made to it, the
Holder who receives such distribution shall hold it in trust for holders of the Secured Obligations
and pay such distribution over to them directly or to their representative or representatives under
the Senior Secured Credit Facilities as their interests appear.
SECTION
11.04. Rights Not Impaired, Etc. This Article Eleven defines the relative rights
of the Holders and the holders of Secured Obligations, Nothing in this Article shall:
(1) impair, as between the Company and the Holders, the obligation of the Company, which
is absolute and unconditional, to pay principal of and interest on (and Additional Amounts
with respect to) the Securities in accordance with their terms and the terms of this
Indenture;
(2) impair, as between the Guarantor and the Holders, the obligation of the Guarantor,
which is absolute and unconditional, to guarantee payment of principal of and interest on
(and Additional Amounts with respect to) the Securities in accordance with their terms and
the terms of this Indenture; or
(3) prevent the Trustee or any Holder from exercising its available remedies upon the
occurrence of an Event of Default, subject to the rights of holders of the Secured Obligations to
receive distributions otherwise payable to Holders as and to the extent provided in this Article
Eleven.
No right of any of present or future holders of any Secured Obligations to enforce the provisions
of this Article Eleven shall at any time in any way be prejudiced or impaired by any act or failure
to act on the part of the Company, any Credit Party, any other Subsidiary or Affiliate of the
Company or by any noncompliance by the Company, any Credit Party or any other Subsidiary or
Affiliate of the Company with the terms of this Indenture, regardless of any knowledge thereof
which any such holder may have or be otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph, the holders of Secured
Obligations may, at any time from time to time, without the consent of or notice to the Holders or
any other holders of any other Indebtedness of the Company, any other Credit Party or other
Subsidiary or Affiliate of the Company, without incurring responsibility to any of such parties and
without impairing or releasing any of the provisions contained in this Article Eleven or the
obligations hereunder of the Holders, do any one or more of the following: (i) change the manner,
place or terms of payment or extend the time of payment of, or renew or alter, or increase the
amount (in compliance with the terms of this Indenture) of the Secured Obligations or any
instrument evidencing the same or any
89
agreement under which any Secured Obligation is outstanding: (ii) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing Secured Obligations or
fail to perfect or delay the perfection of any such lien: (iii) release any person liable in any
manner for the collection of Secured Obligations, or (iv) exercise or refrain from exercising any
rights against the Company, any other Credit Party or any other Subsidiary or Affiliate of the
Company or any other Person.
Each Holder by his acceptance of any Security authorizes and expressly directs the Trustee on his
behalf to take such action as may be necessary or appropriate to effectuate the agreements
contained in this Article Eleven and to protect the rights of the Holders pursuant to this
Indenture, and appoints the Trustee his attorney-in-fact for such purpose, including, in the event
of any dissolution, winding up, liquidation or reorganization of the Company (whether in
bankruptcy, insolvency or receivership proceedings or upon an assignment for the benefit of
creditors or any other marshalling of assets and liabilities of the Company) tending towards
liquidation of the business and assets of the Company, the immediate filing of a claim for any
unpaid amounts with respect to his Securities in the form required in said proceeding and cause
said claim to be approved.
The failure to make a payment on or in respect of the Securities by reason of any provision in this
Article Eleven shall not be construed as preventing the occurrence of an Event of Default.
Nothing in this Article Eleven shall have any effect on the right of the Holders or the Trustee to
accelerate the maturity of the Securities.
ARTICLE TWELVE
SECURITY
SECTION
12.01. Security. (a) On the Closing Date, each of the Company and the Guarantor
shall (i) enter into the Escrow Agreement and comply with the terms and provisions thereof and (ii)
cause the Collateral to be pledged to the Trustee for the benefit of
the Holders. The Collateral
shall be pledged by the Company to the Trustee for the benefit of the Holders pursuant to the
Escrow Agreement.
(b) Each Holder, by its acceptance of a Security, consents and agrees to the terms of the
Escrow Agreement (including, without limitation, the provisions providing tor foreclosure and
release of the Collateral) as the same may be in effect or may be amended from time to time in
accordance with its terms, and authorizes and directs the Trustee to enter into the Escrow
Agreement and to perform its respective obligations and exercise its respective rights thereunder
in accordance therewith. The Company will do or cause to be done all such acts and things as may
be necessary or proper, or as may be required by the provisions of the Escrow Agreement, to assure
and confirm to the Trustee the security interest in the Collateral contemplated hereby, by the
Escrow Agreement or any
90
part thereof, as from time to time constituted, so as to render the same available for the security
and benefit of this Indenture and of the Securities secured hereby, according to the intent and
purposes herein expressed. The Company shall take, or shall cause to be taken, any and all actions
reasonably required (and any action requested by the Trustee) to cause the Escrow Agreement to
create and maintain, as security for the obligations of the Company and the Guarantor under this
Indenture and the Securities, valid and enforceable first priority liens in and on all the
Collateral, in favor of the Trustee, superior to and prior to the rights of third Persons and
subject to no other Liens.
(c) The release of any Collateral pursuant to the Escrow Agreement will not be deemed to
impair the security under this Indenture in contravention of the provisions hereof if and to the
extent the Collateral is released pursuant to this Indenture and the Escrow Agreement. To the
extent applicable, the Company shall cause TIA Section 314(d) relating to the release of property
or securities from the Lien and security interest of the Escrow Agreement (other than pursuant to
Sections 7(a) and 7(b) thereof) and relating to the substitution therefor of any property or
securities to be subjected to the Lien and security interest of the Escrow Agreement to be complied
with. Any certificate or opinion required by TIA Section 314(d) may be made by an Officer of the
Company, except in cases where TIA Section 314(d) requires that such certificate or opinion be made
by an independent Person, which Person shall be an independent engineer, appraiser or other expert
selected by the Company.
(d) The
Company shall cause TIA Section 314(b), relating to opinions of counsel regarding
the Lien under the Escrow Agreement, to be complied with. The Trustee
may, to the extent permitted
by Sections 7.01 and 7.02 hereof, accept as conclusive evidence of compliance with the foregoing
provisions the appropriate statements contained in such instruments.
(e) The
Trustee, in its sole discretion and without the consent of the Holders, may, and at
the request of the Holders of at least 25% in aggregate principal amount of Securities then
outstanding shall, on behalf of the Holders, take all actions it deems necessary or appropriate in
order to (i) enforce any of the terms of the Escrow Agreement and (ii) collect and receive any and
all amounts payable in respect of the obligations of the Company thereunder. The Trustee shall have
power to institute and to maintain such suits and proceedings as the Trustee may deem expedient to
preserve or protect it interests and the interests of the Holders in the Escrowed Funds (including
power to institute and, maintain suits or proceedings to restrain the enforcement of or compliance
with any legislative or other governmental enactment, rule or order that may be unconstitutional or
otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would
impair the security interest hereunder or be prejudicial to the interests of the Holders or of the
Trustee).
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ARTICLE THIRTEEN
MISCELLANEOUS
SECTION 13.01. Trust Indenture Act of 1939. Prior to the effectiveness of the
Registration Statement, this Indenture shall incorporate and be governed by the provisions of the
TIA that are required to be part of and to govern indentures qualified under the T1A. After the
effectiveness of the Registration Statement, this Indenture shall be subject to the provisions of
the TIA that are required to be a part of this Indenture and shall, to the extent applicable, be
governed by such provisions.
SECTION 13.02. Notices. Any notice or communication shall be sufficiently given if in
writing and delivered in person or mailed by first class mail, postage prepaid, addressed as
follows:
if to the Company:
TFM, S.A. de X.X.
Xxxxxx 2-203
Colonia Xxxxxx. Delegación Xxxxxxxxxx. X.X.
00000, Xxxxxx, X.X., Xxxxxx
Attention: Chief Financial Officer
if to the Guarantor:
Grupo Transportación Ferroviaria Mexicana. S.A. de X.X.
Xxxxxx 2-203
Colonia Xxxxxx, Delegación Xxxxxxxxxx, C.P.
06600, México, D.F., México
Attention: Chief Financial Officer
if to the Trustee:
The Bank of New York
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Corporate Trust Department
The
Company, the Guarantor or the Trustee by notice to the other may designate additional or
different addresses for subsequent notices or communications.
Any notice or communication to a Holder shall be deemed to have been given (i) upon the mailing by
first class mail, postage prepaid, of such notices to Securityholders at
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their registered addresses as recorded in the Securities Register and (ii) for so long as the
Securities are listed on the Luxembourg Stock Exchange, upon publication in a leading newspaper of
general circulation in Luxembourg, in each case, not later than the latest date, and not earlier
than the earliest date, prescribed in the Securities for the giving of such notice. Copies of any
such communication or notice to a Holder shall also be mailed to the Trustee and each Agent at the-
same time.
Failure to mail a notice or communication to a Holder or any defect in it shall not affect its
sufficiency with respect to other Holders. Except for a notice to the Trustee, which is deemed
given only when received, and except as otherwise provided in this Indenture, if a notice or
communication is mailed in the manner provided in this Section 13.02. it is duly given, whether or
not the addressee receives it.
Where this Indenture provides for notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action taken in reliance upon
such waiver.
In case by reason of the suspension of regular mail service or by reason of any other cause it
shall be impracticable to give such notice by mail, then such notification as shall be made with
the approval of the Trustee shall constitute a sufficient notification for every purpose
hereunder. All communication delivered to the Trustee shall be deemed effective when actually
received by the Trustee.
SECTION
13.03. Certificate and Opinion as to Conditions Precedent.
Upon any request or
application by the Company or the Guarantor to the Trustee to take or refrain from taking any
action under this Indenture, the Company or the Guarantor, as applicable, shall furnish to the
Trustee:
(i) an Officers’ Certificate stating that, in the opinion of the signers, all conditions precedent,
if any. provided for in this Indenture relating to the proposed action have been complied with: and
(ii) an Opinion of Counsel stating that, in the opinion of such Counsel, all such conditions
precedent have been complied with.
SECTION 13.04. Statements Required in Certificate or Opinion. Each certificate or
opinion with respect to compliance with a condition or covenant provided for in this Indenture
shall include:
93
(i) a statement that each person signing such certificate or opinion has read such covenant
or condition and the definitions herein relating thereto;
(ii) a brief statement as to the nature and scope of the examination or investigation upon
which the statement or opinion contained in such certificate or
opinion is based;
(iii) a statement that, in the opinion of each such person, he has made such examination or
investigation as is necessary to enable him to express an informed opinion as to whether or not
such covenant or condition has been complied with: and
(iv) a statement as to whether or not. in the opinion of each such person, such condition or
covenant has been complied with: provided, however, that, with respect to matters of fact, an
Opinion of Counsel may rely on an Officers’ Certificate or certificates of public officials.
SECTION
13.05. Meetings of Securityholders. A meeting of the
Securityholders to consider matters affecting their interests may be called by the Trustee or the
holders of at least 10% in aggregate principal amount of the applicable outstanding securities.
SECTION
13.06. Rules by Trustee, Paying Agent or Registrar. The Trustee may make
reasonable rules for action by or at a meeting of Holders. The Paying Agent or Registrar may make
reasonable rules for its functions.
SECTION
13.07. Payment Date Other Than a Business Day. If an Interest Payment Date,
Redemption Date, Change of Control Payment Date, Excess Proceeds Payment Date. Stated Maturity or
date of maturity of any Security shall not be a Business Day. then payment of principal of.
premium, if any. or interest on such Security, as the case may be. need not be made on such date,
but may be made on the next succeeding Business Day with the same force and effect as if made on
the Interest Payment Date, Change of Control Payment Date. Excess Proceeds Payment Date, or
Redemption Date, or at the Stated Maturity or date of maturity of such Security: provided that no
interest shall accrue for the period from and after such Interest Payment Date. Change of Control
Payment Date. Excess Proceeds Payment Date. Redemption Date. Stated Maturity or date of maturity,
as the case may be.
SECTION 13.08. Governing Law; Submission to Jurisdiction; Agent for Service. The
Securities and this Indenture will be governed by the laws of the State of New York. Each of the
panics hereto hereby submits to the jurisdiction of the U.S. federal and New York state courts
located in the Borough of Manhattan. City and State of New York for purposes of all legal actions
and proceedings instituted in connection with the Securities
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and this Indenture, and the Company and the Guarantor hereby waive any objection which they may now
have or hereafter have to the laying of venue of any such action or proceeding and any right to
which they may be entitled on account of place of residence or domicile. The Company and the
Guarantor have appointed CT Corporation System. 0000 Xxxxxxxx, Xxx Xxxx. Xxx Xxxx 00000 as the
Company’s and the Guarantor’s authorized agent upon which process may be served in any such action.
SECTION 13.09. Currency Indemnity. U.S. dollars are the sole currency of account and
payment for all sums payable by the Company or the Guarantor under or in connection with the
Securities, including damages. Any amount received or recovered in a currency other than U.S.
dollars (whether as a result of, or of the enforcement of, a judgment or order of a court of any
jurisdiction, in the winding-up or dissolution of the Company or the Guarantor or otherwise) by any
Holder in respect of any sum expressed to be due to it from the Company or the Guarantor shall only
constitute a discharge to the Company or the Guarantor to the extent of the dollar amount which the
recipient is able to purchase with the amount so received or recovered in that other currency on
the date of that receipt or recovery (or, if it is not practicable to make that purchase on that
date, on the first date on which it is practicable to do so). If that dollar amount is less than
the dollar amount expressed to be due to the recipient under any Security, the Company and the
Guarantor shall indemnify the recipient against any loss sustained by it as a result. In any event,
the Company and the Guarantor shall indemnify the recipient against the cost of making any such
purchase. For the purposes of this Section 13.09, it will be sufficient for the Holder to certify
in a satisfactory manner (indicating the sources of information used) that it would have suffered a
loss had an actual purchase of U.S. dollars been made with the amount so received in that other
currency on the date of receipt or recovery (or, if a purchase of U.S. dollars on such date had not
been practicable, on the first date on which it would have been practicable, it being required that
the need for a change of date be certified in the manner mentioned above). These indemnities
constitute a separate and independent obligation from the Company’s and the Guarantor’s other
obligations, shall give rise to a separate and independent cause of action, shall apply
irrespective of any indulgence granted by any Holder and shall continue in full force and effect
despite any other judgment, order, claim or proof for a liquidated amount in respect of any sum due
under any Security.
SECTION
13.10. No Adverse Interpretation of Other Agreements. This Indenture may
not be used to interpret another indenture, loan or debt agreement of the Company. Any such
indenture, loan or debt agreement may not be used to interpret this Indenture.
SECTION
13.11. No Recourse Against Others. No recourse for the payment of the
principal of, premium, if any, or interest on any of the Securities, or for any claim based thereon
or otherwise in respect thereof, and no recourse under or upon any obligation, covenant or
agreement of the Company or the Guarantor contained in this Indenture, or in
95
any of the Securities, or because of the creation of any Indebtedness represented thereby, shall be
had against any incorporator, stockholder, officer, director, employee or controlling person of the
Company, the Guarantor or of any successor Person thereof, either directly or through the Company,
the Guarantor or any successor Person, whether by virtue of any constitution, statute or rule of
law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood
that all such liability is hereby expressly waived and released as a
condition of, and as a
consideration for, the execution of this Indenture and the issue of the Securities.
SECTION
13.12. Successors. All agreements of the Company and the Guarantor in this
Indenture and the Securities shall bind their successors. All agreements of the Trustee in this
Indenture shall bind its successors.
SECTION
13.13. Duplicate Originals. The parties may sign any number of copies of this
Indenture. Each signed copy shall be an original, but all of them together represent the same
agreement.
SECTION
13.14. Separability. In case any provision in this Indenture or in the
Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION
13.15. Table of Contents, Headings, Etc. The Table of Contents,
Cross-Reference Table and headings of the Articles and Sections of this Indenture have been
inserted for convenience of reference only, are not to be considered
a part hereof and shall in no
way modify or restrict any of the terms and provisions hereof.
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, all as
of the date first written above.
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TFM, S.A. de C.V.
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By: |
/s/
Jacinto Xxxxxx Xxxxxx
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Name: |
Jacinto Xxxxxx Xxxxxx |
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Title: |
Alternate Director |
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By: |
/s/ Xxxxxx X. Xxxxxxx
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Name: |
Xxxxxx X. Xxxxxxx |
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Title: |
Director |
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GRUPO TRANSPORTACION
FERROVIARIA MEXICANA, S.A.
de C.V.
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By: |
/s/ Jacinto Xxxxxx Xxxxxx
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Name: |
Jacinto Xxxxxx Xxxxxx |
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Title: |
Alternate Director |
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By: |
/s/ Xxxxxx X. Xxxxxxx
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Name: |
Xxxxxx X. Xxxxxxx |
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Title: |
Director |
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THE BANK OF NEW YORK, Trustee
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By: |
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Name: |
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Title: |
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BANKERS TRUST LUXEMBOURG S.A.,
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By: |
/s/ Xxxxx X. Xxxxxxx
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Name: |
XXXXX X. XXXXXXX |
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Title: |
Assistant Treasurer |
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EXHIBIT A
[FACE OF SECURITY]
TFM, S.A. de C.V.
10¼% Senior Notes 2007
[CUSIP] [000000XX0] [CINS] [X00000XX0]
[ISIN] [US872402AA04]
TFM,
S.A. de C.V., a corporation (sociedad anónima de capital variable) organized under
the laws of Mexico (the “Company”, which term includes any successor under the Indenture
hereinafter referred to), for value received, promises to pay to . or its registered assigns, the principal sum of ($___) on June
15, 2007.
Interest
Payment Dates: June 15 and December 15, commencing
December 15, 1997.
Regular Record Dates: June 1 and December 1.
Grupo
Transportación Ferroviaria Mexicana, S.A. de C.V., a corporation (sociedad anónima de
capital variable) organized under the laws of Mexico (the “Guarantor”, which term includes any
successor under the Indenture hereinafter referred to), has fully, unconditionally and irrevocably
guaranteed the payment of the principal of, premium, if any, and interest on (and any Additional
Amounts with respect to) the Securities.
Reference is hereby made to the further provisions of this Security set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as if set forth at
this place.
A-2
IN WITNESS WHEREOF, the Company has caused this Security to be signed manually or by
facsimile by its duly authorized officers.
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Date: |
TFM, S.A. de C.V.
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By: |
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Name: |
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Title: |
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(Form of Trustee’s Certificate of Authentication)
This is
one of the 10¼% Senior Notes due 2007 described in the within-mentioned Indenture.
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THE BANK OF NEW YORK,
as Trustee
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By: |
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Authorized Signatory |
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A-3
[REVERSE SIDE OF SECURITY]
TFM, S.A. de C.V.
10¼% Senior Notes due 2007
1. Principal and Interest.
The
Company will pay the principal of this Security on June 15, 2007.
The Company promises to pay interest on the principal amount of this Security on each Interest
Payment Date, as set forth below, at the rate per annum shown above.
Interest will be payable semiannually (to the holders of record of the Securities at the close
of business on the June 1 or December 1 immediately preceding the Interest Payment Date) on each
Interest Payment Date, commencing December 1, 1997.
[If an exchange offer (the “Exchange Offer”) registered under the Securities Act is not
consummated, and a shelf registration statement (the “Shelf Registration Statement”) under the
Securities Act with respect to resales of the Securities is not declared effective by the
Commission, on or before December 15, 1997 in accordance with the terms of the Registration Rights
Agreement dated June 16, 1997 among the Company, the Guarantor and Xxxxxx Xxxxxxx & Co.
Incorporated, First Union Capital Markets Corp. and Société
Générate Securities Corporation, the
annual interest rate borne by the Securities will be increased by 0.5% from the rate shown above
accruing, from December 15, 1997, payable in cash semiannually, in arrears, on each Interest
Payment Date, commencing June 15, 1998 until the Exchange Offer is consummated or the Shelf
Registration Statement is declared effective. The Holder of this Security is entitled to the
benefits of such Registration Rights Agreement.]*
Interest on the Securities will accrue from the most recent date to which interest has been
paid or, if no interest has been paid, from June 16, 1997; provided that, if there is no existing
default in the payment of interest and this Security is authenticated between a Regular Record Date
referred to on the face hereof and the next succeeding Interest Payment Date, interest shall accrue
from such Interest Payment Date. Interest will be computed on the basis of a 360 day year of twelve
30-day months.
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A-4
The Company shall pay interest on overdue principal and premium, if any, and interest on
overdue installments of interest, to the extent lawful, at a rate per annum that is 2% in excess
of the rate otherwise payable.
2. Method of Payment.
The Company will pay principal as provided above and interest (except defaulted interest) on
the principal amount of the Securities as provided above on each June 15 and December 15 to the
persons who are Holders (as reflected in the Security Register at the close of business on such
June 1 and December 1 immediately preceding the Interest Payment Date), in each case, even if the
Security is cancelled on registration of transfer or registration of exchange after such record
date; provided that, with respect to the payment of principal, the Company will not make payment to
the Holder unless this Security is surrendered to a Paying Agent.
The
Company will pay principal, premium, if any, and, as provided above, interest (and
Additional Amounts, if any) in money of the United States that at the time of payment is legal
tender for payment of public and private debts. However, the Company may pay principal, premium, if
any, and interest by its check payable in such money. It may mail an interest check to a Holder’s
registered address (as reflected in the Security Register). If a payment date is a date other than
a Business Day at a place of payment, payment may be made at that place on the next succeeding day
that is a Business Day and no interest shall accrue for the intervening period.
3. Paying Agent and Registrar.
Initially,
the Trustee will act as authenticating agent, Paying Agent and Registrar. The
Company may change any authenticating agent, Paying Agent or Registrar without notice. The Company,
any Subsidiary or any Affiliate of any of them may act as Paying Agent. Registrar or co-Registrar.
4. Indenture; Limitations.
The
Company issued the Securities under an Indenture dated as of June 16, 1997 (the
“Indenture”), among the Company, the Guarantor and The Bank of New York, a New York banking
corporation, as trustee (the “Trustee”). Capitalized terms herein are used as defined in the
Indenture unless otherwise indicated. The terms of the Securities include those stated in the
Indenture and those made part of the Indenture by reference to the Trust Indenture Act. The
Securities are subject to all such terms, and Holders are referred to the Indenture and the Trust
Indenture Act for a statement of all such terms. To the extent
permitted by applicable law, in the
event of any inconsistency between the terms of this Security and the terms of the Indenture, the
terms of the Indenture shall control.
A-5
The Securities are general unsecured obligations of the Company. The Indenture limits the
original aggregate principal amount of the Securities to U.S.
$150,000,000 plus any Exchange
Securities that may be issued in exchange for Securities pursuant to the Registration Rights
Agreement.
5. Redemption for Changes in Withholding Taxes.
The
Securities will be subject to redemption, in whole or in part, at the option of the Company
at any time at 100% of their principal amount together with accrued
interest thereon, if any, to
the Redemption Date, in the event the Company has become or would
become obligated to pay, on the
next date on which any amount would be payable with respect to the Securities, any Additional
Amounts in excess of those attributable to a withholding tax rate of 4.99c as a result of a change
in or amendment to the laws (including any regulations or general rules promulgated thereunder) of
Mexico (or any political subdivision or taxing authority thereof or therein), or any change in or
amendment to any official position regarding the application, administration or interpretation of
such laws, regulations or general rules, including a holding of a court of competent jurisdiction,
which change or amendment is announced or becomes effective on or after June 11, 1997. The Company
shall not, however, have the right to redeem Securities from a Holder pursuant to this Section
except to the extent that it is obligated to pay Additional Amounts to such Holder that are greater
than the Additional Amounts that would be payable based on a Mexican Withholding Tax rate of 4.9%.
In the case of any partial redemption, selection of the Securities for redemption will be made
by the Trustee in compliance with the requirements of the principal national securities exchange,
if any, on which such Securities are listed or, if such Securities are not listed on a national
securities exchange, by lot or by such other method as such Trustee in its sole discretion shall
deem to be fair and appropriate: provided that no Security of
U.S.$1,000 in principal amount or
less shall be redeemed in part. If any Security is to be redeemed in
part only, the notice of
redemption relating to such Security shall state the portion of the principal amount thereof to be
redeemed. A Security in principal amount equal to the unredeemed portion thereof will be issued in
the name of the Holder thereof upon cancellation of the original Security.
6. Special Redemption.
In
the event that the Acquisition is not consummated on or prior to July 31, 1997, the
Company shall redeem the Securities on August 7, 1997 in whole, on not less than six days’ prior
notice mailed by first-class mail to such Holder’s last address as it appears on the Security
Register, at a Redemption Price equal to 101 % of the principal amount of the Securities, plus
accrued and unpaid interest to the Redemption Date. If the Trustee has not received the Escrow
Agreement Officer’s Certificate on or prior to July 31,
1997, the Trustee
A-6
will mail by first-class mail to each Holder’s last address as it appears in the Security Register
a written notice that the Securities will be redeemed on the Redemption Date specified above.
7. Notice of Redemption.
Notice of any redemption pursuant to Section 5 hereof will be mailed at least 30 days but not
more than 60 days before the Redemption Date to each Holder of Securities to be redeemed at his or
her last address as it appears in the Security Register. Notice of any redemption pursuant to
Section 6 hereof will be mailed at least six days before the Redemption Date to each Holder of
Securities to be redeemed at his or her last address as it appears in the Security Register.
Securities in original denominations larger than U.S.$1,000 may be
redeemed in part. On and after
the Redemption Date, interest ceases to accrue and the principal amount shall remain constant
(using the principal amount as of the Redemption Date) on Securities or portions of Securities
called for redemption, unless the Company defaults in the payment of the Redemption Price.
8. Repurchase upon Change of Control.
Upon the occurrence of any Change of Control, each Holder shall have the right to require the
repurchase of its Securities by the Company in cash pursuant to the offer described in the
Indenture at a purchase price equal to 101% of the principal amount thereof on the date of
repurchase plus accrued and unpaid interest, if any, to the date of purchase (the “Change of
Control Payment”).
A notice of such Change of Control will be mailed within 30 days after any Change of Control
occurs to each Holder at his last address as it appears in the Security Register. Securities in
original denominations larger than U.S.$1.000 may be sold to the Company in part. On and after the
Change of Control Payment Date, interest ceases to accrue and the principal amount shall remain
constant (using the principal amount as of the Change of Control Payment Date) on Securities or
portions of Securities surrendered for purchase by the Company, unless the Company defaults in the
payment of the Change of Control Payment.
9.
Denominations; Transfer; Exchange.
The Securities are in registered form without coupons in denominations of U.S. $1.000 of
principal amount and multiples of U.S.$1.000 in excess thereof. A
Holder may register the transfer or exchange of Securities in accordance with the Indenture. The Registrar may require a Holder,
among other things, to furnish appropriate endorsements and transfer documents and to pay any taxes
and fees required by law or permitted by the Indenture. The Registrar need not register the
transfer or exchange of any Securities selected for redemption. Also, it need not register the
transfer or exchange of any Securities for a period of 15 days before a selection of Securities to
be redeemed is made.
A-7
10. Persons Deemed Owners.
A Holder shall be treated as the owner of a Security for all purposes.
11. Unclaimed Money.
If
money for the payment of principal, premium, if any, or interest remains unclaimed for two
years, the Trustee and the Paying Agent will pay the money back to the Company at its request.
After that, Holders entitled to the money must look to the Company for payment, unless an abandoned
property law designates another Person, and all liability of the Trustee and such Paying Agent with
respect to such money shall cease.
12. Discharge Prior to Redemption or Maturity.
The Company’s and the Guarantor’s obligations pursuant to the Indenture will be discharged,
except for obligations pursuant to certain sections thereof, subject to the terms of the Indenture,
upon the payment of all the Securities or upon the irrevocable deposit with the Trustee of U.S.
Dollars or Government Securities sufficient to pay when due principal of and interest on the
Securities to maturity or redemption, as the case may be.
13.
Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture or the Securities may be amended or supplemented
with the consent of the Holders of at least a majority in principal amount of the Securities then
outstanding, and any existing default or compliance with any provision may be waived with the
consent of the Holders of at least a majority in principal amount of the Securities then
outstanding. Without notice to or the consent of any Holder, the parties thereto may amend or
supplement the Indenture or the Securities to, among other things, cure any ambiguity, defect or
inconsistency and make any change that does not materially and adversely affect the rights of any
Holder.
14. Restrictive Covenants.
The Indenture imposes certain limitations on the ability of the Company, the Guarantor and its
Restricted Subsidiaries, among other things, to Incur Additional Indebtedness, make Restricted
Payments, use the proceeds from Asset Sales, enter into sale-leaseback transactions, engage in
transactions with Affiliates or, with respect to the Company and the Guarantor, merge, consolidate
or transfer substantially all of their assets. Within 90 days after the end of each fiscal year,
the Company and the Guarantor must report to the Trustee on compliance with such limitations.
A-8
15. Successor Persons.
When a successor person or other entity assumes all the obligations of its predecessor under
the Securities and the Indenture, the predecessor person will be released from those obligations.
16. Defaults and Remedies.
The following events constitute “Events of Default” under the Indenture: (a) default in the
payment of principal of (or premium, if any, on) any Security when the same becomes due and payable
at maturity, upon acceleration, redemption or otherwise: (b) default in the payment of interest on
any Security when the same becomes due and payable, and such default continues for a period of 30
days; (c) the Company, or the Guarantor as the case may be, defaults in the performance of or
breaches the provisions of Article Five of the Indenture or fails to make or consummate an Offer to
Purchase in accordance with Section 4.11 or Section 4.12 of the Indenture: (d) the Company or the
Guarantor defaults in the performance of or breaches any other covenant or agreement of the Company
or the Guarantor in the Indenture or under this Security (other than a default specified in clause
(a), (b) or (c) above), and such default or breach continues for a period of 30 consecutive days
after written notice by the Trustee or the Holders of 25% or more in aggregate principal amount of
the Securities: (e) there occurs with respect to any issue or issues of Indebtedness of the Company
or the Guarantor or any of their Significant Subsidiaries having an outstanding principal amount of
$10 million or more in the aggregate for all such issues of all such Persons, whether such
Indebtedness now exists or shall hereafter be created, (I) an event of default that has caused the
holder thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity and
such Indebtedness has not been discharged in full or such acceleration has not been rescinded or
annulled within 30 days of such acceleration and/or (II) the failure to make a principal payment at
the final (but not any interim) fixed maturity and such defaulted payment shall not have been made,
waived or extended within 30 days of such payment default; (f) the Escrow Agreement shall cease to
be in full force and effect or enforceable in accordance with its terms except in accordance with
its terms; (g) any final judgment or order (not covered by insurance) for the payment of money in
excess of $10 million in the aggregate for all such final judgments or orders against all such
Persons (treating any deductibles, self-insurance or retention as not so covered) shall be rendered
against the Company, the Guarantor or any of their Significant Subsidiaries and shall not be paid
or discharged, and there shall be any period of 30 consecutive days following entry of the final
judgment or order that causes the aggregate amount for all such final judgments or orders
outstanding and not paid or discharged against all such Persons to exceed $10 million during which
a stay of enforcement of such final judgment or order, by reason of a pending appeal or otherwise,
shall not be in effect: (h) a court having jurisdiction in the premises enters a decree or order
for (A) relief in respect of the Company, the Guarantor or any of their Significant Subsidiaries in
an involuntary case under any applicable bankruptcy, insolvency or other similar law now or
A-9
hereafter
in effect, (B) appointment of a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of the Company, the Guarantor or any of their Significant
Subsidiaries or for all or substantially all of the property and assets of the Company, the
Guarantor or any of their Significant Subsidiaries or (C) the winding up or liquidation of the
affairs of the Company, the Guarantor or any of their Significant
Subsidiaries and, in each case,
such decree or order shall remain unstayed and in effect for a period of 30 consecutive days; (i)
the Company, the Guarantor or any of their Significant Subsidiaries (A) commences a voluntary case
under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or
consents to the entry of an order for relief in an involuntary case
under any such law, (B)
consents to the appointment of or taking possession by a receiver, liquidator, assignee, custodian,
trustee, sequestrator or similar official of the Company, the Guarantor or any of their Significant
Subsidiaries or for all or substantially all of the property and assets of the Company, the
Guarantor or any of their Significant Subsidiaries or (C) effects any general assignment for the
benefit of creditors; or (j) (A) the Concession Title shall cease to grant to the Company the
rights (including exclusive rights) originally provided therein and such cessation has had a
material adverse effect on the Guarantor and its Restricted
Subsidiaries taken as a whole; (B) (x)
the Concession Title shall for any reason be terminated and not reinstated within 30 days or (y)
rights provided therein which were originally exclusive to the Company shall become non-exclusive
and the cessation of such exclusivity has had a material adverse effect on the Guarantor and its
Restricted Subsidiaries, taken as a whole; or (C) the operations of the Northeast Rail Lines shall
be commandeered or repossessed (a requisa) for a period of 90 days or more. If an Event of Default
(other than an Event of Default specified in clause (f), (h), (i) or (j)(B)(x) above that occurs
with respect to the Company or the Guarantor) occurs and is continuing under this Indenture, the
Trustee or the Holders of at least 25% in aggregate principal amount of the Securities then
outstanding, by written notice to the Company (and to the Trustee if such notice is given by the
Holders), may, and the Trustee at the request of such Holders shall,
declare the principal of,
premium, if any, and accrued interest on the Securities to be immediately due and payable.
If a bankruptcy or insolvency default with respect to the Company, the Guarantor or any of
their Significant Subsidiaries occurs and is continuing, the Securities automatically become due
and payable. Holders may not enforce the Indenture or the Securities except as provided in the
Indenture. The Trustee may require indemnity satisfactory to it before it enforces the Indenture or
the Securities. Subject to certain limitations. Holders of at least a majority in principal amount
of the Securities then outstanding may direct the Trustee in its exercise of any trust or power.
A-10
17. Additional Amounts
Any payments by the Company under or with respect to the Securities may require the payment of
Additional Amounts as may become payable under Section 4.20 of the Indenture.
18. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or any other capacity, may make loans
to, accept deposits from and perform services for the Company or its Affiliates and may
otherwise deal with the Company or its Affiliates as if it were not the Trustee.
19. No Recourse Against Others.
No incorporator or any past, present or future partner, shareholder, other equity holder,
officer, director, employee or controlling person as such, of the Company or the Guarantor or of
any successor Person shall have any liability for any obligations of the Company or the Guarantor
under the Securities or the Indenture or for any claim based on, in
respect of or by reason of,
such obligations or their creation. Each Holder by accepting a Security waives and releases all
such liability. The waiver and release are part of the consideration for the issuance of the
Securities.
20. Authentication.
This Security shall not be valid until the Trustee or authenticating agent signs the
certificate of authentication on the other side of this Security.
21. Abbreviations.
Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM
(= tenants in common), TEN ENT (= tenants by the entireties), JT TEN
(= joint tenants with right
of survivorship and not as tenants in common), CUST (= Custodian) and U/G/M/A (= Uniform Gifts to
Minors Act).
22. Guarantee.
This
Debenture is guaranteed by Grupo Transportación Ferroviaria Mexicana,
S.A. de C.V.,
as set forth in the Indenture.
The Company will furnish to any Holder upon written request and without charge a copy of
the Indenture, Requests may be made to TFM, S.A. de C.V.,
X-00
Xxxxxx
0-000, Xxxxxxx Xxxxxx, Delegación
Xxxxxxxxxx, C.P. 06600, México, D.F.. México,
Attention: [ ].
A-12
[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s). assign(s) and
transfer(s) unto
Insert Taxpayer Identification No.
Please print or typewrite name and address including zip code of assignee
the within Security and all rights thereunder, hereby irrevocably constituting and appointing
attorney to transfer said Security on the books of the Company with full power of substitution in the premises.
[THE FOLLOWING PROVISION TO BE INCLUDED
ON ALL SECURITIES OTHER THAN EXCHANGE SECURITIES.
PERMANENT OFFSHORE GLOBAL SECURITIES AND
OFFSHORE PHYSICAL SECURITIES]
In connection with any transfer of this Security occurring prior to the date which is the
earlier of (i) the date of an effective registration statement or (ii) the end of the period
referred to in Rule 144(k) under the Securities Act, the undersigned confirms that without
utilizing any general solicitation or general advertising:
[Check One]
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this Security is being transferred in compliance with the exemption
from registration under the Securities Act of 1933, as amended, provided by Rule
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or
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this Security is being transferred other than in accordance with (a) above and
documents are being furnished which comply with the conditions of transfer set forth
in this Security and the Indenture. |
A-13
If none of the foregoing boxes is checked, the Trustee or other Registrar shall not be obligated to
register this Security in the name of any Person other than the Holder hereof unless and until the
conditions to any such transfer of registration set forth herein and in Section 2.08 of the
Indenture shall have been satisfied.
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NOTICE: The signature to this assignment must correspond with
the name as written upon the face of the within-mentioned
instrument in every particular, without alteration or any
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TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this Security for its own
account or an account with respect to which it exercises sole investment discretion and that it and
any such account is a “qualified institutional buyer” within the meaning of Rule 144A under the
Securities Act of 1933, as amended, and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information regarding the Company as the
undersigned has requested pursuant to Rule 144A or has determined not to request such information
and that it is aware that the transferor is relying upon the undersigned’s foregoing
representations in order to claim the exemption from registration provided by Rule 144A.
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NOTICE: To be executed by an executive officer |
A-14
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Security purchased by the Company pursuant to Section 4.11 or
Section 4.12 of the Indenture, check the Box: o
If you wish to have a portion of this Security purchased by the Company pursuant to
Section 4.11 or Section 4.12 of the Indenture, state the amount:
$ .
Date:
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(Sign exactly as your name appears on the other side of this Security) |
EXHIBIT B
Form of Certificate
The Bank of New York
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Corporate Trust Department
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Re:
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TFM. S.A. de C.V. (the “Company”) |
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101/4% Senior Notes |
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due 2007 (the “Securities”) |
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Ladies and Gentlemen:
This letter relates to U.S.$ principal amount of Securities
represented by a Security (the “Legended Security”) which bears a legend outlining restrictions
upon transfer of such Legended Security. Pursuant to Section 2.02 of the Indenture (the
“Indenture”) dated as of June 16, 1997 relating to the Securities, we hereby certify that we are
(or we will hold such Securities on behalf of) a person outside the United States to whom the
Securities could be transferred in accordance with Rule 904 of Regulation S promulgated under the
U.S. Securities Act of 1933. as amended. Accordingly, you are hereby requested to exchange the
legended certificate for an unlegended certificate representing an identical principal amount of
Securities, all in the manner provided for in the Indenture.
You and the Company are entitled to rely upon this letter and are irrevocably authorized to
produce this letter or a copy hereof to any interested party in any administrative or legal
proceedings or official inquiry with respect to the matters covered hereby. Terms used in this
certificate have the meanings set forth in Regulation S.
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Very truly yours, |
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[Name of Holder] |
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Authorized Signature |
EXHIBIT C
Form of Certificate to Be Delivered
in Connection with Transfers
Pursuant to Regulation S
The Bank of New York
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Corporate Trust Department
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Re:
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TFM. S.A. de C.V. (the “Company”) |
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101/4% Senior Notes |
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due 2007 (the “Securities”) |
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Ladies and Gentlemen:
In connection with our proposed sale of U.S.$ aggregate principal
amount of the Securities, we confirm that such sale has been effected pursuant to and in accordance
with Regulation S under the Securities Act of 1933, as amended, and, accordingly, we represent
that:
(1)
the offer of the Securities was not made to a person in the United States;
(2) at the time the buy order was originated, the transferee was outside the
United States or we and any person acting on our behalf reasonably believed that the
transferee was outside the United States;
(3) no directed selling efforts have been made by us in the United States in
contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S, as
applicable; and
(4)
the transaction is not part of a plan or scheme to evade the registration
requirements of the U.S. Securities Act of 1933.
C-2
You and the Company are entitled to rely upon this letter and are
irrevocably
authorized to produce this letter or a copy hereof to any interested party in any
administrative or legal proceedings or official inquiry with respect to the matters
covered hereby. Terms used in this certificate have the meanings set forth in
Regulation S.
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Very truly yours, |
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[Name of Transferor] |
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By: |
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EXHIBIT D
Form of Certificate to Be
Delivered in Connection with
Transfers to Non-QIB Accredited Investors
The Bank of New York
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Corporate Trust Department
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Re:
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TFM, S.A. de C.V. (the “Company”) |
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101/4% Senior Notes |
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due 2007 (the “Securities”) |
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Dear Sirs:
In connection with our proposed purchase of U.S.$ aggregate
principal amount of the Securities, we confirm that:
1. We understand that any subsequent transfer of the Securities is subject to
certain restrictions and conditions set forth in the Indenture dated
as of [ ],
____,
1997 relating to the Securities (the “Indenture”) and the
undersigned agrees to be bound by,
and not to resell, pledge or otherwise transfer the Securities except in compliance with,
such restrictions and conditions and the Securities Act of 1933, as amended (the “Securities
Act”).
2. We understand that the offer and sale of the Securities have not been
registered under the Securities Act, and that the Securities may not be offered or sold
except as permitted in the following sentence. We agree, on our own behalf and on
behalf of any accounts for which we are acting as hereinafter stated, that if we should
sell any Securities, we will do so only (A) to the Company or any subsidiary thereof,
(B) in accordance with Rule 144A under the Securities Act to a “qualified institutional
buyer” (as defined therein), (C) to an institutional “accredited investor” (as defined
below) that, prior to such transfer, furnishes (or has furnished on its behalf by a
U.S. broker-dealer) to you and to the Company a signed letter substantially in the form of
this letter, (D) outside the United States in accordance with Rule 904 of Regulation S under
the Securities Act, (E) pursuant to the exemption from registration provided by Rule 144
under the Securities Act, or (F) pursuant to an effective
D-2
registration statement under the Securities Act, and we further agree to provide to any
person purchasing any of the Securities from us a notice advising such purchaser that resales
of the Securities are restricted as stated herein.
3. We understand that, on any proposed resale of any Securities, we will be
required to furnish to you and the Company such certifications, legal opinions and
other information as you and the Company may reasonably require to confirm that the
proposed sale complies with the foregoing restrictions. We further understand that the
Securities purchased by us will bear a legend to the foregoing effect.
4. We are an institutional “accredited investor” (as defined in
Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have such
knowledge and experience in financial and business matters as to be capable of evaluating the
merits and risks of our investment in the Securities, and we and any accounts for which we are
acting are each able to bear the economic risk of our or its investment.
5. We are acquiring the Securities purchased by us for our own account or
for one or more accounts (each of which is an institutional “accredited investor”) as to
each of which we exercise sole investment discretion.
You and the Company are entitled to rely upon this letter and are irrevocably authorized to
produce this letter or a copy hereof to any interested party in any administrative or legal
proceedings or official inquiry with respect to the matters covered hereby.
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Very truly yours, |
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[Name of Transferee] |
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By: |
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Authorized Signature |
EXHIBIT 2.2
EXECUTION COPY
FIRST SUPPLEMENTAL INDENTURE
This First Supplemental Indenture (this “Supplemental Indenture”), dated as of May 21,
2002, among TFM, S.A. de C.V., a sociedad anonima de capital variable, organized under the laws of
the United Mexican States, as Issuer (the “Company”), Grupo Transportacion Ferroviaria Mexicana,
S.A. de C.V., a sociedad anonima de capital variable, organized under the laws of the United
Mexican States, as Guarantor (the “Guarantor”), The Bank of New York, a New York banking
corporation, as trustee under the indenture referred to below (in such capacity, the “Trustee”),
and Deutsche Bank Luxembourg S.A., as the Paying Agent (the “Paying Agent”).
WITNESSETH:
WHEREAS, the Company and the Guarantor have heretofore executed and delivered to the Trustee
an indenture dated as of June 16, 1997 (the “Indenture”), providing for the issuance by the Company
and the guarantee by the Guarantor of an aggregate principal amount of up to $150,000,000 of 10.25%
Senior Notes due 2007 (the “Notes”);
WHEREAS, the Company is contemplating the acquisition (the
“Acquisition”) of the equity interest held by the government of Mexico in the Guarantor (the “Call
Option Shares”) through Ferrocarriles Nacionales de Mexico (“FNM”) and Nacional Financiera, S.N.C.,
as trustee (“Nafin”);
WHEREAS, Section 9.02 of the Indenture provides that, with the written consent of the Holders
of a majority in aggregate principal amount of the outstanding Notes (the “Requisite Consents”),
the Company and the Guarantor, when authorized by their respective Boards of Directors (as
evidenced by a Board Resolution), and the Trustee may amend the Indenture, and the Holders of a
majority in aggregate principal amount of the outstanding Notes (the “Requisite Holders”) by
written notice to the Trustee may waive future compliance by the Company with certain provisions of
the Indenture;
WHEREAS, in order to permit the Company to consummate the Acquisition, the Company has
completed a consent solicitation (the “Consent Solicitation”) whereby the Company has obtained the
Requisite Consents to amend, and a waiver by the Requisite Holders (the “Waiver”) of, Section 4.04
of the Indenture, entitled “Limitation on Restricted Payments” (this amendment, together with the
Waiver and certain additional amendments to Sections 4.03, 4.04 and 4.09 of the Indenture which are
being made hereby, the “Amendments”), which limits the amounts of restricted payments the Company
is permitted to make based on the Company’s cumulative adjusted consolidated net income beginning
on July 1, 1997;
WHEREAS, in connection with the Consent Solicitation, Holders that delivered a valid
consent on a timely basis (the “Consenting Holders”) are entitled to receive a cash fee (the
“Cash Fee”) with respect to the Notes in respect of which they have consented if the conditions
to the Consent Solicitation are met;
WHEREAS, the Company, the Guarantor, the Trustee and the Paying Agent are entering into this
Supplemental Indenture in order to set forth the Amendments;
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WHEREAS, this Supplemental Indenture has been duly authorized by all necessary corporate
action on the part of the Company and the Guarantor; and
NOW, THEREFORE, the Company, the Guarantor, the Trustee and the Paying Agent mutually covenant
and agree for the equal and ratable benefit of all the Holders of the Notes as follows:
ARTICLE I.
AMENDMENT AND WAIVER OF THE INDENTURE
SECTION 1.1 Addition to Section 4.04 of the Indenture. The Company, the Guarantor, the Trustee
and the Paying Agent hereby agree to amend Section 4.04 of the Indenture, and Section 4.04 of the
Indenture is hereby amended by adding the following paragraph to the end of such section:
Notwithstanding anything to the contrary in the foregoing provisions of this Section
4.04, (i) the foregoing provisions shall not apply to and shall not prohibit the purchase by
the Company of Capital Stock of the Guarantor from the government of Mexico, through FNM and
Nafin, or their successors or assigns, and any subsequent transactions between the Company
and the Guarantor in respect of the cancellation, conversion or exchange of the Capital Stock
of the Guarantor thereby purchased by the Company and (ii) neither such purchase by the
Company of Capital Stock of the Guarantor or any such subsequent transactions, nor the
consideration paid by the Company in connection with such purchase or such subsequent
transactions (such purchase and any subsequent transactions, the “Acquisition Transactions”),
shall be included in calculating whether the conditions of clause (C) of the first paragraph
of this Section 4.04 have been met with respect to any subsequent Restricted Payments,
provided that the Company shall not be entitled to consummate any Acquisition Transactions
under the provisions of this paragraph prior to having paid the Cash Fee to consenting
Holders, all no later than July 31, 2002 in accordance with the terms and conditions of the
Consent Solicitation.
SECTION 1.2 Waiver of Compliance with Section 4.04 of the Indenture. Compliance by the Company
with Section 4.04 of the Indenture is hereby waived with respect to any Acquisition Transactions,
subject to satisfaction of the provisions of Section 1.1 of this Supplemental Indenture.
SECTION 1.3 Amendment of Section 4.03(a) of the Indenture. The Company, the Guarantor, the
Trustee and the Paying Agent hereby agree to amend Section 4.03(a) of the Indenture, and Section
4.03 (a) of the Indenture is hereby amended, by:
(A) replacing the first paragraph of such section in its entirety with the following
paragraph:
(a) The Guarantor will not, and will not permit any of its Restricted
Subsidiaries to, Incur any Indebtedness (other than the Securities, the
Securities Guarantees, the Senior Notes
(and the guarantee thereof) and Indebtedness existing on the Closing Date and
any Indebtedness incurred before the effectiveness of the First
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Supplemental Indenture hereto (including, without limitation, under
our U.S. Commercial Paper Program) in accordance with the provisions of this
Indenture as of the time of Incurrence); provided that the Guarantor and the
Company may Incur Indebtedness if, after giving effect to the Incurrence of
such Indebtedness and the receipt and application of the proceeds therefrom,
the Interest Coverage Ratio would be greater than (i) if the Indebtedness is
Incurred during the
period beginning on the Closing Date and ending on the third anniversary
thereof, 2.25:1; (ii) if the Indebtedness is Incurred during the period
beginning after the third anniversary of the Closing Date and the Cash Fee
has not been paid, 2.5:1; (iii) if the Indebtedness is Incurred during the
period beginning after the third anniversary of the Closing Date and ending
on the date upon which the Cash Fee is paid, 2.5:1; (iv) if the Indebtedness
is Incurred during the period beginning after the date upon which the Cash
Fee is paid and ending on October 31, 2003, 3.0:1; and (v) if the
Indebtedness is Incurred thereafter, 2.5:1.
(B) replacing clause (i) thereof in its entirety with the following
text:
(i) Indebtedness outstanding at any time in an aggregate principal amount not
to exceed $50.0 million that is Incurred solely for the purpose of financing
the cost of improvements or construction related to the properties of
Mexrail, Inc. and the Texas-Mexican Railway Company, the net proceeds of
which are applied to finance the cost of such improvements or construction;
and
(c) eliminating the cross-reference to clause (i) found in clause (iii) of Section 4.03 (a) .
SECTION 1.4 Amendment of Section 4.04(C) of the Indenture. The Company, the Guarantor, the
Trustee and the Paying Agent hereby agree to amend Section 4.04 of the Indenture, and Section 4.04
of the Indenture is hereby amended, with effect retroactive to April 1, 2002, by replacing clause C
thereof in its entirety with the following text:
(C) the aggregate amount of all Restricted Payments (the amount, if other than in cash, to be
determined in good faith by the Board of Directors of the Guarantor, whose determination shall be
conclusive and evidenced by a Board Resolution) made on or after April 1, 2002 shall exceed the sum
of (1) 50% of the aggregate amount of the Adjusted Consolidated Net Income (or, if the Adjusted
Consolidated Net Income is a loss, minus 100% of the amount of such loss) (determined by excluding
income resulting from transfers of assets by the Guarantor or a Restricted Subsidiary to an
Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken as one accounting
period) beginning on April 1, 2002 and ending on the last day of the last fiscal quarter preceding
the Transaction Date for which reports have been filed or provided to the Trustee pursuant to
Section 4.18 plus (2) the aggregate Net Cash Proceeds received by the Company or the Guarantor on
or after April 1, 2002 from a capital contribution or the issuance and sale (other than pursuant to
the Capital Contribution Agreement) permitted by this Indenture of Capital Stock of the Company or
the Guarantor (other than Disqualified Stock) to a Person who is not a Subsidiary of the Company or
the Guarantor, including an issuance or sale permitted by this Indenture of Indebtedness of the
Company or the Guarantor for cash subsequent to the Threshold Conversion Date upon the conversion
of such Indebtedness into Capital Stock (other than Disqualified Stock) of the Company or the Guarantor,
or from the issuance to a Person who is not a Subsidiary of the Company or the Guarantor of any
options, Indebtedness into Capital Stock (other than Disqualified Stock) of the Company or the Guarantor,
or from the issuance to a Person who is not a Subsidiary of the Company or the Guarantor of any
options,
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warrants or other rights to acquire Capital Stock of the Company or the Guarantor (in each case,
exclusive of any Disqualified Stock or any options, warrants or other rights that are redeemable at
the option of the holder, or are required to be redeemed, prior to the Stated Maturity of the
Securities) plus (3) an amount equal to the net reduction in Investments (other than reductions in
Permitted Investments) in any Person on or after April 1, 2002 resulting from payments of interest
on Indebtedness, dividends, repayments of loans or advances, or other transfers of assets, in each
case to the Guarantor or any Restricted Subsidiary or from the Net Cash Proceeds from the sale of
any such Investment (except, in each case, to the extent any such payment or proceeds are included
in the calculation of Adjusted Consolidated Net Income), or from redesignations of Unrestricted
Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of
“Investments”), not to exceed, in each case, the amount of Investments previously made by the
Company or any Restricted Subsidiary in such Person or Unrestricted Subsidiary.
SECTION 1.5 Amendment of Section 1.01 of the Indenture. The Company, the Guarantor, the
Trustee and the Paying Agent hereby agree to amend Section 1.01 of the Indenture by adding the
following definitions to Section 1.01 in the appropriate alphabetical order.
“Acquisition Transactions” has the meaning provided in Section 4.04.
“Cash Fee” means the cash fee offered in connection with the Consent Solicitation of $30.00
for each $1,000 principal amount of Notes in respect of which Holders delivered a valid and
unrevoked consent.
“U.S. Commercial Paper Program” means the Company’s $290.0 million Letter of Credit Backed
U.S. Commercial Paper Program, established pursuant to a Credit Agreement, dated as of September
19, 2000, among the Company, Chase Securities Inc. as lead arranger and book manager, Bank of
America Securities LLC and Westdeutsche Landesbank Girozentrale, S.A., New York Branch, as
co-documentation agents, co-syndication agents and arrangers, The Chase Manhattan Bank as
administrative agent and the several banks parties thereto, as amended by the Amendment and Joinder
Agreement dated as of December 5, 2000, increasing the amount from $290.0 million to $310.0
million, and the Second Amendment dated as of September 25, 2001, together with all other
agreements, instruments and documents executed or delivered pursuant thereto, in each case as such
agreements may be amended (including any amendment and restatement thereof), supplemented, replaced
or otherwise modified from time to time, including any agreement extending the maturity of,
refinancing, replacing or otherwise restructuring all or any portion of the Indebtedness under such
agreement or any successor or replacement agreement and whether by the same or any other agent,
lender or group of lenders.
SECTION 1.6 Amendment of Section 4.09 of the Indenture. The Company, the Guarantor, the
Trustee and the Paying Agent hereby agree to amend Section 4.09 of the Indenture, and Section 4.09
of the Indenture is hereby amended by replacing the text after the last semicolon at the end of
such section with the following text:
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“(vii) Liens securing Indebtedness which is permitted to be incurred under clause (i) of the
second paragraph of Section 4.03; or (viii) Permitted Liens.”
ARTICLE II.
MISCELLANEOUS
SECTION 2.1 Effect of Supplemental Indenture. Upon the execution and delivery of this
Supplemental Indenture by the Company, the Guarantor, the
Trustee and the Paying Agent, the Indenture shall be supplemented in accordance herewith, and
this Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder
of Notes heretofore or hereafter authenticated and delivered under the Indenture shall be bound
thereby.
Notwithstanding the foregoing, the Amendments set forth herein will have no effect, and this
First Supplemental Indenture shall be null and void, if the Cash Fee is not paid to consenting
Holders on or before July 31, 2002 in accordance with the terms and conditions of the Consent
Solicitation.
SECTION 2.2 Indenture Remains in Full Force and Effect. Except as expressly provided herein,
all provisions in the Indenture shall remain in full force and effect. The amendments and waiver
provided for herein are limited to the specific sections of the Indenture specified herein and
shall not constitute an amendment of any other provisions of the Indenture.
SECTION 2.3 Indenture and Supplemental Indenture Construed Together. This Supplemental
Indenture is an indenture supplemental to and in implementation of the Indenture, and the Indenture
and Supplemental Indenture shall henceforth be read and construed together.
SECTION 2.4 Conflict with Trust Indenture Act. If any provision of this Supplemental Indenture
limits, qualifies or conflicts with any provision of the Trust Indenture Act that is required under
such Act to be part of and govern any provision of this Supplemental Indenture, the provision of
such Act shall control. If any provision of this Supplemental Indenture modifies or excludes a
provision of the Trust Indenture Act that may be so modified or excluded, the provision of such Act
shall be deemed to apply to the Indenture as so modified or to be excluded by this Supplemental
Indenture, as the case may be.
SECTION
2.5 Severability Clause. In case any provision of this Supplemental Indenture shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 2.6 Terms Defined in the Indenture. All capitalized terms not otherwise defined herein
shall have the meanings ascribed to them in the Indenture.
SECTION 2.7 Benefits of Supplemental Indenture. Nothing in this Supplemental Indenture, the
Indenture or the Notes, express or implied, shall give to any Person, other than the parties hereto
and thereto and their successors hereunder or thereunder and the Holders of Notes, any benefit of
any legal or equitable right, remedy or claim under the Indenture, this Supplemental Indenture or
the Notes.
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SECTION 2.8 Successors and Assigns. All covenants and agreements in this Supplemental
Indenture by the Company and the Guarantor shall bind their successors and assigns, whether so
expressed or not.
SECTION 2.9 Governing Law. This Supplemental Indenture shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect to the conflicts of law
principles thereof.
SECTION 2.10 Effect of Headings. The Article and Section headings herein are for
convenience only and shall not affect the construction hereof.
SECTION 2.11 Counterparts. This Supplemental Indenture may be executed in counterparts, each
of which, when so executed, shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
SECTION 2.12 Trustee Not Responsible for Recitals. The Trustee shall not be responsible in any
manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture
or for or in respect of the recitals of fact contained herein, all of which recitals are made
solely by the Company.
* * *
[SIGNATURE PAGE TO IMMEDIATELY FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental Indenture to be
duly executed as of the date first stated above.
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TFM, S.A. DE C.V. |
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By:
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/s/ Xxxx Xxxxx / Xxxxxxx Xxxxxx |
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Name: Xxxx Xxxxx / Xxxxxxx Xxxxxx |
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Title: Finance Director / Acting CFO |
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GRUPO TRANSPORTACION |
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FERROVIARIA MEXICANA, S.A. DE C.V. |
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By:
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/s/ Xxxx Xxxxx / Xxxxxxx Xxxxxx |
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Name: Xxxx Xxxxx / Xxxxxxx Xxxxxx |
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Title: Finance Director / Acting CFO |
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THE BANK OF NEW YORK, AS TRUSTEE |
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By:
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/s/ Xxxxxx Xxxxxxx |
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Name: Xxxxxx Xxxxxxx |
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Title: Assistant Vice President |
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DEUTSCHE BANK LUXEMBOURG S.A., |
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AS PAYING AGENT |
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By:
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/s/ C.A. Xxxxxx / X. Xxxxxxxxx |
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Name: C.A. Xxxxxx / X. Xxxxxxxxx |
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Title: Attorney / Attorney |
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