BANCO MACRO S.A. Issued under the U.S.$400,000,000 Global Medium-Term Note Program EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
Exhibit
2.4
EXECUTION COPY
BANCO MACRO S.A.
9.75% Fixed/Floating Rate Non-Cumulative Junior Subordinated Notes Due 2036, Series 1
Issued under the U.S.$400,000,000 Global Medium-Term Note Program
December 18, 2006
To the Dealers Listed in Annex 1 Hereto.
Ladies and Gentlemen:
Banco Macro S.A. (the “Bank”), a corporation (sociedad anónima) incorporated under the laws of
the Republic of Argentina (“Argentina”), proposes to issue and sell to you (collectively, the
“Dealers”) upon the terms set forth in the Terms Agreement (as defined herein) its 9.75%
Fixed/Floating Rate Non-Cumulative Junior Subordinated Notes due 2036. As an inducement to the
Dealers to enter into the Terms Agreement and in satisfaction of a condition to the obligations of
the Dealers thereunder, the Bank agrees with the Dealers for the benefit of holders (as defined
herein) from time to time of the Registrable Securities (as defined herein) as follows:
1. Certain Definitions. For purposes of this Exchange and Registration Rights Agreement, the
following terms shall have the following respective meanings:
“Advice” shall have the meaning assigned thereto in Section 3(g) hereof.
“Agreement” shall mean this Exchange and Registration Rights Agreement.
“Broker-dealer” shall mean any broker or dealer registered with the Commission under the
Exchange Act.
“Commission” shall mean the U.S. Securities and Exchange Commission, or any other federal
agency at the time administering the Exchange Act or the Securities Act, whichever is the
relevant statute for the particular purpose.
“Effective Time” in the case of (i) an Exchange Registration, shall mean the time and date
as of which the Commission declares the Exchange Offer Registration Statement effective or as of
which the Exchange Offer Registration Statement otherwise becomes effective and (ii) a Shelf
Registration, shall mean the time and date as of which the Commission declares the Shelf
Registration Statement effective or as of which the Shelf Registration Statement otherwise
becomes effective.
“Electing Holder” shall mean any holder of Registrable Securities that has returned a
completed and signed Notice and Questionnaire to the Bank in accordance with Section 3(d)(ii)
hereof.
“Event Date” shall have the meaning assigned thereto in Section 2(c) hereof.
“Exchange Act” shall mean the U.S. Securities Exchange Act of 1934, or any successor
thereto, as the same shall be amended from time to time.
“Exchange Offer” shall have the meaning assigned thereto in Section 2(a) hereof.
“Exchange Offer Registration Statement” shall have the meaning assigned thereto in Section
2(a) hereof.
“Exchange Registration” shall have the meaning assigned thereto in Section 3(c) hereof.
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“Exchange Securities” shall have the meaning assigned thereto in Section 2(a) hereof.
“Holder” shall mean the Dealers and other persons who acquire Registrable Securities from
time to time (including any successors or assigns), in each case for so long as such person owns
any Registrable Securities.
“Indenture” shall mean the Indenture, dated as of December 18, 2006, among the Bank, HSBC
Bank USA, National Association, as trustee (the “Trustee”), co-registrar, principal paying agent
and transfer agent, and HSBC Bank Argentina S.A., as registrar, paying agent, transfer agent and
representative of the Trustee in Argentina, as supplemented by the First Supplemental Indenture
dated as of December 18, 2006, and as may be further supplemented or amended from time to time.
“Liquidated Damages” shall have the meaning assigned thereto in Section 2(c) hereof.
“Liquidated Damages Payment Dates” shall have the meaning assigned thereto in Section 2(d)
hereof.
“Notice and Questionnaire” means a Notice of Registration Statement and Selling
Securityholder Questionnaire substantially in the form of Exhibit A hereto.
The term “person” shall mean a corporation, association, partnership, organization,
business, individual, government or political subdivision thereof or governmental agency.
“Registrable Securities” shall mean the Securities; provided, however, that a Security shall
cease to be a Registrable Security when (i) in the circumstances contemplated by Section 2(a)
hereof, the Security has been exchanged for an Exchange Security in an Exchange Offer as
contemplated in Section 2(a) hereof (provided, however, that any Exchange Security that, pursuant
to the last two sentences of Section 2(a), is included in a prospectus for use in connection with
resales by broker-dealers shall be deemed to be a Registrable Security with respect to Sections
5, 6 and 9 until the earlier of the resale of such Registrable Security or the expiration of the
90-day period referred to in Section 2(a)); (ii) in the circumstances contemplated by Section
2(b) hereof, a Shelf Registration Statement registering such Security under the Securities Act
has been declared or becomes effective and such Security has been sold or otherwise transferred
by the holder thereof pursuant to and in a manner contemplated by such effective Shelf
Registration Statement; (iii) such Security is sold pursuant to Rule 144 under circumstances in
which any legend borne by such Security relating to restrictions on transferability thereof,
under the Securities Act or otherwise, is removed by the Bank or pursuant to the Indenture; (iv)
such Security is eligible to be sold pursuant to paragraph (k) of Rule 144; or (v) such Security
shall cease to be outstanding.
“Registration Default” shall have the meaning assigned thereto in Section 2(c) hereof.
“Registration Expenses” shall have the meaning assigned thereto in Section 4 hereof.
“Resale Period” shall have the meaning assigned thereto in Section 2(a) hereof.
“Restricted Holder” shall mean (i) a holder that is an affiliate of the Bank within the
meaning of Rule 405, (ii) a holder who acquires Exchange Securities outside the ordinary course
of such holder’s business or (iii) a holder who is engaged in, or intends to engage in, or has
arrangements or understandings with any person to participate in the Exchange Offer for the
purpose of distributing Exchange Securities.
“Rule 144,” “Rule 405” and “Rule 415” shall mean, in each case, such rule promulgated under
the Securities Act (or any successor provision), as the same shall be amended from time to time.
“Securities” shall mean the 9.75% Fixed/Floating Rate Non-Cumulative Junior Subordinated
Notes due 2036 of the Bank (CUSIP Nos. P1047V AB 3 (Regulation S) and 05963G AA 6 (Rule 144A)),
to be issued and sold to the Dealers, and securities issued in exchange therefor or in lieu
thereof pursuant to the Indenture.
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“Securities Act” shall mean the U.S. Securities Act of 1933, or any successor thereto, as
the same shall be amended from time to time.
“Settlement Date” shall mean the date on which the Registrable Securities are initially
issued.
“Shelf Registration” shall have the meaning assigned thereto in Section 2(b) hereof.
“Shelf Registration Statement” shall have the meaning assigned thereto in Section 2(b)
hereof.
“Terms Agreement” shall mean the Terms Agreement, dated December 11, 2006, among the Dealers
and the Bank relating to the Securities.
“Trust Indenture Act” shall mean the U.S. Trust Indenture Act of 1939, or any successor
thereto, and the rules, regulations and forms promulgated thereunder, all as the same shall be
amended from time to time.
Unless the context otherwise requires, any reference herein to a “Section” or “clause” refers
to a Section or clause, as the case may be, of this Agreement, and the words “herein,” “hereof” and
“hereunder” and other words of similar import refer to this Agreement as a whole and not to any
particular Section or other subdivision.
2. Registration Under the Securities Act.
(a) Except as set forth in Section 2(b) below, the Bank agrees to file or cause to be
filed under the Securities Act, as soon as practicable, but not later than 255 days after
the Settlement Date, a registration statement relating to an offer to exchange (such
registration statement, the “Exchange Offer Registration Statement”, and such offer, the
“Exchange Offer”) any and all of the Securities for a like aggregate principal amount of
debt securities issued by the Bank, which debt securities are substantially identical to the
Securities (and are entitled to the benefits of an indenture which is substantially
identical to the Indenture or is the Indenture and which has been qualified under the Trust
Indenture Act), except that they have been registered pursuant to an effective registration
statement under the Securities Act, and do not contain provisions for the liquidated damages
contemplated in Section 2(c) below (such new debt securities hereinafter called “Exchange
Securities”). The Bank agrees to use its reasonable best efforts to cause the Exchange
Offer Registration Statement to become effective by the Commission under the Securities Act
as soon as practicable, but no later than 315 days after the Settlement Date. The Exchange
Offer will be registered under the Securities Act on the appropriate form and will comply
with all applicable rules and regulations under the Exchange Act. The Bank further agrees
to use its reasonable best efforts to commence and complete the Exchange Offer promptly, but
no later than 350 days after the Settlement Date, hold the Exchange Offer open for at least
30 days and issue and deliver Exchange Securities in exchange for all Registrable Securities
that have been properly tendered and not withdrawn on or prior to the expiration of the
Exchange Offer. Each holder of Registrable Securities who wishes to exchange such
Registrable Securities for Exchange Securities in, and in accordance with the terms of, the
Exchange Offer will be required to make certain customary representations in connection
therewith, including representations that such holder is not a Restricted Holder. Upon the
effectiveness of the Exchange Offer Registration Statement, the Bank shall promptly commence
the Exchange Offer, it being the objective of such Exchange Offer that each holder (other
than a Restricted Holder) electing to participate in the Exchange Offer will receive
Exchange Securities that are, upon receipt, transferable by each such holder without
restriction under the Securities Act and the Exchange Act and without material restrictions
under the blue sky or securities laws of a substantial majority of the states of the United
States of America. The Exchange Offer shall be deemed to have been completed upon the
earlier to occur of (i) the Bank having exchanged the Exchange Securities for all
outstanding Registrable Securities pursuant to the Exchange Offer and (ii) the Bank having
exchanged, pursuant to the Exchange Offer, Exchange Securities for all Registrable
Securities that have been properly tendered and not withdrawn before the expiration of the
Exchange Offer, which shall be on a date that is at least 30 days following the commencement
of the
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Exchange Offer. The Bank agrees (x) to include in the Exchange Offer Registration
Statement a prospectus for use in any resales by any holder of Exchange Securities that is a
broker-dealer and (y) to keep such Exchange Offer Registration Statement effective for a
period (the “Resale Period”) beginning when Exchange Securities are first issued in the
Exchange Offer and ending upon the earlier of the expiration of the 90th day
after the Exchange Offer has been completed or such time as such broker-dealers no longer
own any Registrable Securities. With respect to such Exchange Offer Registration Statement,
such holders shall have the benefit of the rights of indemnification and contribution set
forth in Sections 6(a), (c), (d) and (e) hereof.
(b) If (i) on or prior to the time the Exchange Offer is completed, existing Commission
interpretations are changed such that the debt securities received by holders other than
Restricted Holders in the Exchange Offer for Registrable Securities are not or would not be,
upon receipt, transferable by each such holder without restriction under the Securities Act,
(ii) the Exchange Offer has not been completed within 350 days following the Settlement Date
or (iii) any holder notifies the Bank prior to 20 days after the consummation of the
Exchange Offer that (A) based on the advice of counsel, due to a change in law or Commission
policy it may not resell the Exchange Securities acquired by it in the Exchange Offer to the
public without delivering a prospectus and the prospectus contained in the Exchange Offer
Registration Statement is not appropriate or available for such resales by such holder or
(B) it is a Dealer and owns Registrable Securities acquired directly from the Bank or an
affiliate of the Bank or (C) on or prior to the consummation of the Exchange Offer existing
laws, regulations and/or applicable Commission interpretations have changed such that the
holders of at least a majority in aggregate principal amount of the Registrable Securities
would not be able to resell the Exchange Securities acquired by them in, and in accordance
with the terms of, the Exchange Offer to the public without restriction under the Securities
Act and without restriction under applicable blue sky or state securities laws, the Bank
shall, in lieu of (or, in the case of clause (iii), in addition to) conducting the Exchange
Offer contemplated by Section 2(a), file or cause to be filed under the Securities Act as
soon as practicable, but no later than the later of the 350th day after the Settlement Date
or 30 days after the time such obligation to file arises, a “shelf” registration statement
providing for the registration of, and the sale on a continuous or delayed basis by the
holders of, all of the Registrable Securities, pursuant to Rule 415 or any similar rule that
may be adopted by the Commission (such filing, the “Shelf Registration” and such
registration statement, the “Shelf Registration Statement”).
The Bank agrees to use its reasonable best efforts (x) to cause the Shelf Registration
Statement to become or be declared effective on or prior to 60 days after such filing was
required to be made hereunder and to keep such Shelf Registration Statement continuously
effective for a period of two years (or, if shorter, the period after which Rule 144(k)
under the Securities Act generally becomes available to non-affiliates of the Bank) from the
effective date of the Shelf Registration Statement (subject to extension pursuant to Section
2(d) and Section 3(g)) or until all of the Securities covered by the Shelf Registration
Statement have been sold pursuant to the Shelf Registration Statement or cease to be
outstanding; provided, however, that no holder shall be entitled to be named as a selling
securityholder in the Shelf Registration Statement or to use the prospectus forming a part
thereof for resales of Registrable Securities unless such holder is an Electing Holder. The
Bank further agrees to supplement or make amendments to the Shelf Registration Statement, as
and when required by the rules, regulations or instructions applicable to the registration
form used by the Bank for such Shelf Registration Statement or by the Securities Act or
rules and regulations thereunder for shelf registration, and the Bank agrees to furnish to
each Electing Holder copies of any such supplement or amendment promptly after it is used or
promptly following its filing with the Commission.
(c) If (i) the Exchange Offer Registration Statement (or a Shelf Registration
Statement in lieu thereof) is not filed on or prior to the 255th day after the Settlement
Date, (ii) the Exchange Offer Registration Statement (or a Shelf Registration Statement in
lieu thereof) is not declared effective by the Commission on or prior to the 315th day after
the Settlement Date, (iii) the Exchange Offer is not consummated on or prior to the 35th day
after the date specified for the effectiveness of the Exchange Offer Registration Statement,
(iv) a Shelf Registration Statement required to be filed is not filed on or before the
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date specified above for such filing, (v) a Shelf Registration Statement otherwise
required to be filed is not declared effective on or before the date specified above for
effectiveness thereof or (vi) a Shelf Registration Statement is declared effective but
thereafter, subject to certain exceptions, ceases to be effective or usable (whether due to
a stop order or otherwise) in connection with resales of Registrable Securities during the
period specified in 2(b) (each such event referred to in clauses (i) through (vi) above, a
“Registration Default”), then, in the case of a Registration Default referred to in clause
(i), (ii) or (iii) above, the Bank shall pay predetermined liquidated damages with respect
to all Registrable Securities, or in the case of a Registration Default referred to in
clause (iv), (v) or (vi) above with respect to the Registrable Securities to which such
Registration Default relates, calculated at a rate equal to 0.25% per annum of the
outstanding principal amount of such Registrable Securities, which rate shall increase by an
additional 0.25% per annum for each 90-day period that passes until all such Registration
Defaults have been cured, up to a maximum amount of 1.00% per annum (“Liquidated Damages”).
(d) The Bank shall notify the Trustee within three business days after each and every
date on which an event occurs in respect of which Liquidated Damages are required to be paid
(an “Event Date”). Liquidated Damages shall be paid by depositing with the Trustee, in
trust, for the benefit of the holders, on or before the applicable Liquidated Damages
Payment Date (as defined below), immediately available funds in sums sufficient to pay the
Liquidated Damages then due. The Liquidated Damages due shall be payable on each June 18
and December 18 (the “Liquidated Damages Payment Dates”), as applicable, to the holders of
record of the relevant Registrable Securities on the immediately preceding Regular Record
Date (as such term is defined in the Indenture). Each obligation to pay Liquidated Damages
shall be deemed to accrue from and including the applicable Event Date to but excluding the
date on which the relevant Registration Default has been cured or ceases to exist.
(e) Any Exchange Offer Registration Statement pursuant to Section 2(a) and any Shelf
Registration Statement pursuant to Section 2(b) will not be deemed to have become effective
unless it has been declared effective by the Commission; provided, however, that, if after
it has been declared effective, the offering of Securities pursuant to a Shelf Registration
Statement is subject to any stop order, injunction or other order or requirement of the
Commission or any other governmental agency or court, such Registration Statement will be
deemed not to have been effective for such Securities during the period it was so subject,
until the offering of such Securities pursuant to such Registration Statement may legally
resume.
In no event shall the Bank be deemed to be in breach of its obligations under the
second paragraph of Section 2(b) nor shall a Registration Default described in Section
2(c)(vi) be deemed to have occurred (i) as a result of any action required by applicable law
which renders the Bank unable to comply with the Commission disclosure requirements or (ii)
if compliance with its obligations under this Agreement to maintain the effectiveness of,
supplement or amend any Registration Statement, upon advice of U.S. counsel to the Bank,
would require additional disclosure of material non-public information by the Bank or its
subsidiaries as to which, and so long as, the Bank or its subsidiaries has a bona fide
business purpose in preserving its confidentiality; provided, however, that the maximum
period of time during which the Bank shall be entitled to postpone the effectiveness,
supplementing or amending of any Registration Statement pursuant to clause (ii) of this
paragraph shall be 45 calendar days; provided, further, that (x) upon the exercise of its
right under clause (ii) of this paragraph to postpone the effectiveness, supplementing or
amending of any such Registration Statement, the Bank shall give the holders prompt written
notice of such exercise and an approximation of the anticipated length of such postponement
and (y) after the exercise of its right under clause (ii) of this paragraph to postpone the
effectiveness, supplementing or amending of any such Registration Statement, the Bank shall
not, within six months of the expiration of any such postponement, exercise again its right
of postponement under clause (ii) of this paragraph. The holders hereby acknowledge that
any notice given by the Bank pursuant to this paragraph may constitute material non-public
information and that the U.S. securities laws prohibit any person who has material
non-public information about a company from purchasing or selling securities of the company
or from communicating such information to any other person under circumstances in which it
is reasonably foreseeable that such person is likely to purchase or sell such securities.
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(f) Any reference herein to a registration statement as of any time shall be deemed to
include any document incorporated, or deemed to be incorporated, therein by reference as of
such time and any reference herein to any post-effective amendment to a registration
statement as of any time shall be deemed to include any document incorporated, or deemed to
be incorporated, therein by reference as of such time.
3. Registration Procedures.
If the Bank files a registration statement pursuant to Section 2(a) or Section 2(b), the
following provisions shall apply:
(a) At or before the Effective Time of the Exchange Offer or the Shelf Registration, as
the case may be, the Bank shall cause the Indenture to be qualified under the Trust
Indenture Act.
(b) In the event that such qualification would require the appointment of a new trustee
under the Indenture, the Bank shall appoint a new trustee thereunder pursuant to the
applicable provisions of the Indenture.
(c) In connection with the Bank’s obligations with respect to the registration of
Exchange Securities as contemplated by Section 2(a) (the “Exchange Registration”), if
applicable, the Bank shall, as soon as practicable (or as otherwise specified):
(i) prepare and file with the Commission, as soon as practicable but not later
than 255 days after the Settlement Date, an Exchange Offer Registration Statement on
any form which may be utilized by the Bank and which shall permit the Exchange Offer
and use its reasonable best efforts to cause such Exchange Offer Registration
Statement to become effective as soon as practicable thereafter, but no later than
315 days after the Settlement Date;
(ii) prepare and file with the Commission such amendments and supplements to
such Exchange Offer Registration Statement and the prospectus included therein as
may be necessary to effect and maintain the effectiveness of such Exchange Offer
Registration Statement for the periods and purposes contemplated in Section 2(a)
hereof and as may be required by the applicable rules and regulations of the
Commission and the instructions applicable to the form of such Exchange Offer
Registration Statement, and promptly provide each broker-dealer holding Exchange
Securities that has identified itself to the Bank as such with such number of copies
of the prospectus included therein (as then amended or supplemented), in conformity
in all material respects with the applicable requirements of the Securities Act and
the Trust Indenture Act and the rules and regulations of the Commission thereunder,
as such broker-dealer reasonably may request prior to the expiration of the Resale
Period, for use in connection with resales of Exchange Securities;
(iii) promptly notify each broker-dealer that has identified itself to the Bank
as such and requested copies of the prospectus included in such registration
statement, and confirm such advice in writing, (A) when such Exchange Offer
Registration Statement or the prospectus included therein or any prospectus
amendment or supplement or post-effective amendment has been filed, and, with
respect to such Exchange Offer Registration Statement or any post-effective
amendment, when the same has become effective, (B) of any request by the Commission
or by the blue sky or securities commissioner or regulator of any state for
amendments or supplements to such Exchange Offer Registration Statement or
prospectus or for additional information after such Exchange Offer Registration
Statement has become effective, (C) of the issuance by the Commission of any stop
order suspending the effectiveness of such Exchange Offer Registration Statement or
the initiation or threat of any proceedings for that purpose, (D) if at any time the
representations and warranties of the Bank contemplated by Section 5 cease to be
true and correct in all material respects, (E) of the receipt by the Bank of any
notification with respect to the
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suspension of the qualification of the Exchange Securities for sale in any
jurisdiction or the initiation or threat of any proceeding for such purpose, or (F)
at any time during the Resale Period when a prospectus is required to be delivered
under the Securities Act, that such Exchange Offer Registration Statement,
prospectus, prospectus amendment or supplement or post-effective amendment does not
conform in all material respects to the applicable requirements of the Securities
Act and the Trust Indenture Act and the rules and regulations of the Commission
thereunder or contains an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing; and each such
broker-dealer agrees to suspend use of such prospectus, prospectus amendment or
supplement until the Bank has amended or supplemented the prospectus to correct such
misstatement or omission;
(iv) in the event that the Bank would be required, pursuant to Section
3(c)(iii)(F) above, to notify any broker-dealers holding Exchange Securities that
have identified itself to the Bank as such, without delay prepare and furnish to
each such holder a reasonable number of copies of a prospectus supplemented or
amended so that, as thereafter delivered to purchasers of such Exchange Securities
during the Resale Period, such prospectus shall conform in all material respects to
the applicable requirements of the Securities Act and the Trust Indenture Act and
the rules and regulations of the Commission thereunder and shall not contain an
untrue statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading in light
of the circumstances then existing;
(v) use its best efforts to obtain the withdrawal of any order suspending the
effectiveness of such Exchange Offer Registration Statement or any post-effective
amendment thereto;
(vi) use its best efforts to (A) register or qualify the Exchange Securities
under the securities laws or blue sky laws of such jurisdictions as are contemplated
by Section 2(a) no later than the commencement of the Exchange Offer, (B) keep such
registrations or qualifications in effect and comply with such laws so as to permit
the continuance of offers, sales and dealings therein in such jurisdictions until
the expiration of the Resale Period and (C) take any and all other actions as may be
reasonably necessary or advisable to enable each broker-dealer holding Exchange
Securities that has identified itself to the Bank as such to consummate the
disposition thereof in such jurisdictions; provided, however, that the Bank shall
not be required for any such purpose to (1) qualify as a foreign corporation in any
jurisdiction wherein it would not otherwise be required to qualify but for the
requirements of this Section 3(c)(vi), (2) consent to general service of process in
any such jurisdiction or (3) make any changes to its certificate of incorporation or
by-laws (estatutos sociales) or any agreement between it and its shareholders; and
(vii) comply with all applicable rules and regulations of the Commission.
(d) In connection with the Bank’s obligations with respect to the Shelf Registration,
if applicable, the Bank shall, as soon as practicable (or as otherwise specified):
(i) prepare and file with the Commission, as soon as practicable but in any
case within the time periods specified in Section 2(b), a Shelf Registration
Statement on any form which may be utilized by the Bank and which shall register all
of the Registrable Securities for resale by the Electing Holders in accordance with
such method or methods of disposition as may be specified by such Electing Holders
and use its reasonable best efforts to cause such Shelf Registration Statement to
become effective as soon as practicable but in any case within the time periods
specified in Section 2(b);
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(ii) not less than 15 calendar days prior to the Effective Time of the Shelf
Registration Statement, mail the Notice and Questionnaire to the holders of
Registrable Securities; no holder shall be entitled to be named as a selling
securityholder in the Shelf Registration Statement, and no holder shall be entitled
to use the prospectus forming a part thereof for resales of Registrable Securities
at any time, unless such holder has returned a completed and signed Notice and
Questionnaire to the Bank by the deadline for response set forth therein; provided,
however, that holders of Registrable Securities shall have at least 15 calendar days
from the date on which the Notice and Questionnaire is first mailed to such holders
to return a completed and signed Notice and Questionnaire to the Bank;
(iii) prepare and file with the Commission such amendments and supplements to
such Shelf Registration Statement and the prospectus included therein as may be
necessary to effect and maintain the effectiveness of such Shelf Registration
Statement for the period specified in Section 2(b) hereof and as may be required by
the applicable rules and regulations of the Commission and the instructions
applicable to the form of such Shelf Registration Statement, and furnish to the
Electing Holders copies of any such supplement or amendment simultaneously with or
promptly after its being used or filed with the Commission;
(iv) before filing any Shelf Registration Statement or prospectus and each
amendment or supplement thereto, provide (A) the Electing Holders, (B) the managing
underwriters (which term, for purposes of this Agreement, shall include a person
deemed to be an underwriter within the meaning of Section 2(a)(11) of the Securities
Act), if any, thereof, (C) counsel for any such managing underwriter or agent and
(D) not more than one counsel for all the Electing Holders the opportunity to
participate in the preparation of such Shelf Registration Statement, each prospectus
included therein or filed with the Commission and each amendment or supplement
thereto;
(v) for a reasonable period prior to the filing of such Shelf Registration
Statement, and throughout the period specified in Section 2(b), make available at
reasonable times at the Bank’s principal place of business or such other reasonable
place for inspection by the persons referred to in Section 3(d)(iv) above who shall
certify to the Bank that they have a current intention to sell the Registrable
Securities pursuant to the Shelf Registration such financial and other information
and books and records of the Bank, and cause the officers, employees, counsel and
independent certified public accountants of the Bank to respond to such inquiries,
as shall be reasonably necessary to conduct an investigation within the meaning of
Section 11 of the Securities Act; provided, however, that each such party shall be
required to maintain in confidence and not to disclose to any other person any
information or records reasonably designated by the Bank as being confidential,
until such time as (A) such information becomes a matter of public record (whether
by virtue of its inclusion in such registration statement or otherwise), or (B) such
person shall be required so to disclose such information pursuant to a subpoena or
order of any court or other governmental agency or body having jurisdiction over the
matter (subject to the requirements of such order, and only after such person shall
have given the Bank prompt prior written notice of such requirement) unless such
release is against Argentine law, or (C) in an opinion addressed to the Bank of
counsel experienced in such matters and approved by the Bank, such information is
required to be set forth in such Shelf Registration Statement or the prospectus
included therein or in an amendment to such Shelf Registration Statement or an
amendment or supplement to such prospectus in order that such Shelf Registration
Statement, prospectus, amendment or supplement, as the case may be, complies with
applicable requirements of the federal securities laws and the rules and regulations
of the Commission and does not contain an untrue statement of a material fact or
omit to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading in light of the circumstances then
existing;
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(vi) promptly notify each of the Electing Holders, any sales or placement agent
therefor and any underwriter thereof (which notification may be made through any
managing underwriter that is a representative of such underwriter for such purpose)
and confirm such advice in writing, (A) when such Shelf Registration Statement or
the prospectus included therein or any prospectus amendment or supplement or
post-effective amendment has been filed, and, with respect to such Shelf
Registration Statement or any post-effective amendment, when the same has become
effective, (B) of any request by the Commission and by the blue sky or securities
commissioner or regulator of any state for amendments or supplements to such Shelf
Registration Statement or prospectus or for additional information after such Shelf
Registration has become effective, (C) of the issuance by the Commission of any stop
order suspending the effectiveness of such Shelf Registration Statement or the
initiation or threatening of any proceedings for that purpose, (D) if at any time
the representations and warranties of the Bank contemplated by Section 3(d)(xiii) or
Section 5 or contained in any underwriting agreement or similar agreement relating
to the offering cease to be true and correct in all material respects, (E) of the
receipt by the Bank of any notification with respect to the suspension of the
qualification of the Registrable Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose, or (F) if at any time
when a prospectus is required to be delivered under the Securities Act, that such
Shelf Registration Statement, prospectus, prospectus amendment or supplement or
post-effective amendment does not conform in all material respects to the applicable
requirements of the Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder or contains an untrue statement of a
material fact or omits to state any material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances then existing;
(vii) use its best efforts to obtain the withdrawal of any order suspending the
effectiveness of such registration statement or any post-effective amendment thereto
at the earliest practicable date;
(viii) if requested by any managing underwriter or underwriters, or any
Electing Holder, promptly incorporate in a prospectus supplement or post-effective
amendment such information as is required by the applicable rules and regulations of
the Commission and as such managing underwriter or underwriters, or such Electing
Holder specifies should be included therein relating to the terms of the sale of
such Registrable Securities, including information with respect to the principal
amount of Registrable Securities being sold by such Electing Holder or to any
underwriters, the name and description of such Electing Holder or underwriter, the
offering price of such Registrable Securities and any discount, commission or other
compensation payable in respect thereof, the purchase price being paid therefor by
such underwriters and with respect to any other terms of the offering of the
Registrable Securities to be sold by such Electing Holder or to such underwriters;
and make all required filings of such prospectus supplement or post-effective
amendment promptly after notification of the matters to be incorporated in such
prospectus supplement or post-effective amendment;
(ix) furnish to each Electing Holder, therefor, each underwriter, if any,
thereof and the respective counsel referred to in Section 3(d)(iv) an executed copy
(or, in the case of an Electing Holder, a conformed copy) of such Shelf Registration
Statement, each such amendment and supplement thereto (in each case including all
exhibits thereto (in the case of an Electing Holder of Registrable Securities, upon
request) and documents incorporated by reference therein) and such number of copies
of such Shelf Registration Statement (excluding exhibits thereto and documents
incorporated by reference therein unless so requested by such Electing Holder, agent
or underwriter, as the case may be) and of the prospectus included in such Shelf
Registration Statement (including each preliminary prospectus and any summary
prospectus), in conformity in all material respects with the applicable requirements
of the Securities Act and the Trust Indenture Act and the rules and regulations of
the Commission thereunder, and such other documents, as such Electing Holder, agent,
if any, and underwriter, if any, may reasonably request in order to
9
facilitate the offering and disposition of the Registrable Securities owned by
such Electing Holder, offered or sold by such agent or underwritten by such
underwriter and to permit such Electing Holder, agent and underwriter to satisfy the
prospectus delivery requirements of the Securities Act; and the Bank hereby consents
(subject to Section 3(g)) to the use of such prospectus (including such preliminary
and summary prospectus) and any amendment or supplement thereto by each such
Electing Holder and by any such agent and underwriter, in each case in the form most
recently provided to such person by the Bank, in connection with the offering and
sale of the Registrable Securities covered by the prospectus (including such
preliminary and summary prospectus) or any supplement or amendment thereto;
(x) use its best efforts to (A) register or qualify the Registrable Securities
to be included in such Shelf Registration Statement under such securities laws or
blue sky laws of such jurisdictions as any Electing Holder and each underwriter, if
any, thereof shall reasonably request, (B) keep such registrations or qualifications
in effect and comply with such laws so as to permit the continuance of offers, sales
and dealings therein in such jurisdictions during the period the Shelf Registration
is required to remain effective under Section 2(b) and (C) take any and all other
actions as may be reasonably necessary or advisable to enable each such Electing
Holder, agent, if any, and underwriter, if any, to consummate the disposition in
such jurisdictions of such Registrable Securities; provided, however, that the Bank
shall not be required for any such purpose to (1) qualify as a foreign corporation
in any jurisdiction in which it would not otherwise be required to qualify but for
the requirements of this Section 3(d)(x), (2) consent to general service of process
in any such jurisdiction or (3) make any changes to its certificate of incorporation
or by-laws or any agreement between it and its stockholders;
(xi) unless any Registrable Securities shall be in book-entry only form,
cooperate with the Electing Holders and the managing underwriters, if any, to
facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold, and, in the case of an underwritten offering,
enable such Registrable Securities to be in such denominations and registered in
such names as the managing underwriters may reasonably request at least two business
days prior to any sale of the Registrable Securities;
(xii) enter into one or more underwriting agreements, engagement letters,
agency agreements, “best efforts” underwriting agreements or similar agreements, as
appropriate, including customary provisions relating to indemnification and
contribution, and take such other actions in connection therewith as any Electing
Holders aggregating at least 20% in aggregate principal amount of the Registrable
Securities at the time outstanding shall request in order to expedite or facilitate
the disposition of such Registrable Securities;
(xiii) whether or not an agreement of the type referred to in Section 3(d)(xii)
hereof is entered into and whether or not any portion of the offering contemplated
by the Shelf Registration is an underwritten offering or is made through a placement
or sales agent or any other entity, (A) make such representations and warranties to
the Electing Holders and the underwriters, if any, thereof in form, substance and
scope as are customarily made in connection with an offering of debt securities
pursuant to any appropriate agreement or to a registration statement filed on the
form applicable to the Shelf Registration; (B) obtain opinions of counsel customary
for a public offering of Securities to the Bank in customary form and covering such
matters, of the type customarily covered by such an opinion, as the managing
underwriters, if any, or, in the event there are no managing underwriters, the
Electing Holders of at least 20% in aggregate principal amount of the Registrable
Securities at the time outstanding may reasonably request, addressed to the managing
underwriters (if any) or such Electing Holder or Electing Holders and dated the
effective date of such Shelf Registration Statement; (C) obtain a “cold comfort”
letter or letters from the independent certified public accountants of the Bank
addressed to the managing underwriters (if any) or, in the event there are no
managing underwriters, use reasonable efforts to have such letters addressed to the
selling Electing Holders, dated (i) the effective date of such
10
Shelf Registration Statement and (ii) the effective date of any prospectus
supplement to the prospectus included in such Shelf Registration Statement or
post-effective amendment to such Shelf Registration Statement which includes
unaudited or audited financial statements as of a date or for a period subsequent to
that of the latest such statements included in such prospectus, such letter or
letters to be in customary form and covering such matters of the type customarily
covered by letters of such type; (D) deliver such documents and certificates,
including officers’ certificates, as may be reasonably requested by any Electing
Holders of at least 20% in aggregate principal amount of the Registrable Securities
at the time outstanding or the managing underwriters, if any, thereof to evidence
the accuracy of the representations and warranties made pursuant to clause (A) above
or those contained in Section 5 hereof and the compliance with or satisfaction of
any agreements or conditions contained in the underwriting agreement or other
agreement entered into by the Bank; and (E) undertake such obligations relating to
expense reimbursement, indemnification and contribution as are provided in Section 6
hereof;
(xiv) notify in writing each holder of Registrable Securities of any proposal
by the Bank to amend or waive any provision of this Agreement pursuant to Section
9(g) hereof and of any amendment or waiver effected pursuant thereto, each of which
notices shall contain the text of the amendment or waiver proposed or effected, as
the case may be;
(xv) in the event that any broker-dealer registered under the Exchange Act
shall underwrite any Registrable Securities or participate as a member of an
underwriting syndicate or selling group or “assist in the distribution” (within the
meaning of the Conduct Rules (the “Conduct Rules”) of the National Association of
Securities Dealers, Inc. (“NASD”) or any successor thereto, as amended from time to
time) thereof, whether as a holder of such Registrable Securities or as an
underwriter, a placement or sales agent or a broker or dealer in respect thereof, or
otherwise, assist such broker-dealer in complying with the requirements of such
Conduct Rules, including by (A) if such Conduct Rules shall so require, engaging a
“qualified independent underwriter” (as defined in such Conduct Rules) to
participate in the preparation of the Shelf Registration Statement relating to such
Registrable Securities, to exercise usual standards of due diligence in respect
thereto and, if any portion of the offering contemplated by such Shelf Registration
Statement is an underwritten offering or is made through a placement or sales agent,
to recommend the yield of such Registrable Securities, (B) indemnifying any such
qualified independent underwriter to the extent of the indemnification of
underwriters provided in Section 6 hereof (or to such other customary extent as may
be requested by such underwriter), and (C) providing such information to such
broker-dealer as may be required in order for such broker-dealer to comply with the
requirements of the Conduct Rules; and
(xvi) comply with all applicable rules and regulations of the Commission.
(e) In the event that the Bank would be required, pursuant to Section 3(d)(vi)(F)
above, to notify the Electing Holders and the managing underwriters, if any, thereof, the
Bank shall without delay prepare and furnish to each of the Electing Holders and to each
such underwriter, if any, a reasonable number of copies of a prospectus supplemented or
amended so that, as thereafter delivered to purchasers of Registrable Securities, such
prospectus shall conform in all material respects to the applicable requirements of the
Securities Act and the Trust Indenture Act and the rules and regulations of the Commission
thereunder and shall not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing. Each Electing Holder agrees that
upon receipt of any notice from the Bank pursuant to Section 3(d)(vi)(F) hereof, such
Electing Holder shall forthwith discontinue the disposition of Registrable Securities
pursuant to the Shelf Registration Statement applicable to such Registrable Securities until
such Electing Holder shall have received copies of such amended or supplemented prospectus,
and if so directed by the Bank, such Electing Holder shall deliver to the Bank (at the
Bank’s expense) all copies, other than permanent file copies, then in such Electing Holder’s
possession of the prospectus covering such Registrable Securities at the time of receipt of
such notice.
11
(f) In the event of a Shelf Registration, in addition to the information required to be
provided by each Electing Holder in its Notice Questionnaire, the Bank may require such
Electing Holder to furnish to the Bank such additional information regarding such Electing
Holder and such Electing Holder’s intended method of distribution of Registrable Securities
as the Bank may, after consulting with counsel, reasonably determine is required in order to
comply with the Securities Act. Each such Electing Holder agrees to notify the Bank as
promptly as practicable of any inaccuracy or change in information previously furnished by
such Electing Holder to the Bank or of the occurrence of any event in either case as a
result of which any prospectus relating to such Shelf Registration contains or would contain
an untrue statement of a material fact regarding such Electing Holder or such Electing
Holder’s intended method of disposition of such Registrable Securities or omits to state any
material fact regarding such Electing Holder or such Electing Holder’s intended method of
disposition of such Registrable Securities required to be stated therein or necessary to
make the statements therein not misleading in light of the circumstances then existing, and
promptly to furnish to the Bank any additional information required to correct and update
any previously furnished information or required so that such prospectus shall not contain,
with respect to such Electing Holder or the disposition of such Registrable Securities, an
untrue statement of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in light of the
circumstances then existing.
(g) In the case of a Shelf Registration Statement or the notification of the Bank by
broker-dealers seeking to sell Exchange Securities and required to deliver prospectuses that
will be utilizing the prospectus contained in the Exchange Offer Registration Statement,
each holder agrees that, upon receipt of any notice from the Bank of (i) the happening of
any event of the kind described in any of clauses (B) — (F) of Section 3(d)(vi) or (ii) the
exercise of the Bank’s right, under clause (ii) of the second paragraph of Section 2(d), to
postpone the effectiveness, supplementing or amending of any such Registration Statement,
such holder will forthwith discontinue disposition of Securities pursuant to the applicable
Registration Statement until such holder receives the copies of the supplemented or amended
prospectus contemplated by Section 3(c)(iv) or Section 3(e) or until such holder is advised
in writing (the “Advice”) by the Bank that the use of the applicable prospectus may be
resumed, and, if so directed by the Bank, such holder will deliver to the Bank (at the
Bank’s expense) all copies in such holder’s possession, other than permanent file copies, of
the prospectus covering such Securities current at the time of receipt of such notice. If
the Bank shall give any such notice to suspend the disposition of any Securities pursuant to
a Registration Statement, the Bank shall use its best efforts to file a supplement or an
amendment to the Registration Statement and, in the case of an amendment, have such
amendment declared effective as soon as practicable and shall extend the period during which
such Registration Statement shall be maintained effective pursuant to this Agreement by the
number of days in the period from and including the date of the giving of such notice to and
including the date when the Bank shall have made available to the holders (i) copies of the
supplemented or amended prospectus necessary to resume such dispositions or (ii) the Advice.
4. Registration Expenses.
The Bank agrees unless otherwise agreed in writing among the Bank and the Dealers to bear and
to pay or cause to be paid promptly the following expenses incident to the Bank’s performance of or
compliance with this Agreement: (a) all Commission and any NASD registration, filing and review
fees and other expenses (except as noted herein) in connection with the registration of the
Securities with the Commission in connection with such registration, filing and review; (b) all
fees and expenses in connection with the qualification of the Securities for offering and sale
under the state securities and blue sky laws referred to in Section 3(d)(x) hereof and
determination of their eligibility for investment under the laws of such jurisdictions as any
managing underwriters or the Electing Holders may designate, including any fees and disbursements
of one counsel for the Electing Holders or underwriters in connection with such qualification; (c)
fees and expenses of the Trustee, registrars, paying agents and transfer agents under the Indenture
and of their respective agents or counsels; (d) internal expenses (including all salaries and
expenses of the Bank’s officers and employees performing legal or accounting duties); (e)
reasonable and duly documented fees, disbursements and expenses of counsel and independent
certified public accountants of the Bank (including the expenses of any opinions or “comfort
letters” required by or incident to such performance and compliance); (f) fees, disbursements and
expenses of one counsel for the Electing Holders retained in
12
connection with a Shelf Registration, as selected by the Electing Holders of at least a
majority in aggregate principal amount of the Registrable Securities held by Electing Holders; (g)
fees, expenses and disbursements of any other persons, including special experts, retained by the
Bank in connection with such registration; (h) all expenses of printing (including printing of
prospectuses), messenger and delivery services and telephone; (i) any fees charged by securities
rating services for rating the Securities; and (j) any fees associated with listing the Securities
on the Luxembourg Stock Exchange for trading on the EuroMTF, the alternative market of the
Luxembourg Stock Exchange, and the Buenos Aires Stock Exchange (collectively, the “Registration
Expenses”). To the extent that any Registration Expenses are incurred, assumed or paid by any
holder of Registrable Securities therefor or underwriter thereof, the Bank shall reimburse such
person for the full amount of documented Registration Expenses so incurred, assumed or paid
promptly after receipt of a request therefor. Notwithstanding the foregoing, the holders of the
Registrable Securities being registered shall pay all agency fees and commissions and underwriting
discounts and commissions attributable to the sale of such Registrable Securities and the fees and
disbursements of any counsel or other advisors or experts retained by such holders (severally or
jointly), other than the counsel and experts specifically referred to above.
5. Representations and Warranties.
The Bank represents and warrants to, and agrees with, the Dealers and each of the holders from
time to time of Registrable Securities that:
(a) The compliance by the Bank with the provisions of this Agreement, and the
consummation of the transactions herein contemplated will not conflict with or result in a
breach of any of the terms or provisions of, or constitute a default under, any material
agreement or material instrument to which the Bank is a party or by which the Bank is bound
or to which any of the property or assets of the Bank is subject, nor will such action
result in any violation of any order, rule or regulation of any court or governmental agency
or body having jurisdiction over the Bank or any of its properties; and
(b) This Agreement has been duly authorized, executed and delivered by the Bank.
6. Indemnification.
(a) Indemnification by the Bank. The Bank will indemnify and hold harmless each of the
holders of Registrable Securities included in an Exchange Offer Registration Statement, each
of the Electing Holders of Registrable Securities included in a Shelf Registration Statement
and each person who participates as an underwriter in any offering or sale of such
Registrable Securities against any losses, claims, damages or liabilities, joint or several,
to which such holder or underwriter may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Exchange Offer Registration Statement or Shelf Registration
Statement, as the case may be, under which such Registrable Securities were registered under
the Securities Act, or any preliminary, final or summary prospectus contained therein or
furnished by the Bank to any such holder, Electing Holder or underwriter, or any amendment
or supplement thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made, not
misleading, and will reimburse such holder, such Electing Holder and such underwriter for
any reasonable and duly documented legal or other expenses incurred by them in connection
with investigating or defending any such action or claim as such expenses are incurred;
provided, however, that the Bank shall not be liable to any such person in any such case to
the extent that any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission made in such
registration statement, or preliminary, final or summary prospectus, or amendment or
supplement thereto, in reliance upon and in conformity with written information furnished to
the Bank by such person expressly for use therein.
13
(b) Indemnification by the Holders and Underwriters. The Bank may require, as a
condition to including any Registrable Securities in any registration statement filed
pursuant to Section 2(b) hereof and to entering into any underwriting agreement with respect
thereto, that the Bank shall have received an undertaking reasonably satisfactory to it from
the Electing Holder of such Registrable Securities and from each underwriter named in any
such underwriting agreement, severally and not jointly, to (i) indemnify and hold harmless
the Bank and all other holders of Registrable Securities, against any losses, claims,
damages or liabilities to which the Bank or such other holders of Registrable Securities may
become subject, under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in such
registration statement, or any preliminary, final or summary prospectus contained therein or
furnished by the Bank to any such Electing Holder or underwriter, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made, not
misleading, in each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Bank by such Electing Holder or
underwriter expressly for use therein, and (ii) reimburse the Bank for any reasonable and
duly documented legal or other expenses incurred by the Bank in connection with
investigating or defending any such action or claim as such expenses are incurred; provided,
however, that no such Electing Holder shall be required to undertake liability to any person
under this Section 6(b) for any amounts in excess of the dollar amount of the proceeds to be
received by such Electing Holder from the sale of such Electing Holder’s Registrable
Securities pursuant to such registration.
(c) Notices of Claims, Etc. Promptly after receipt by an indemnified party under
subsection (a) or (b) above of written notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against an indemnifying
party pursuant to the indemnification provisions of or contemplated by this Section 6,
notify such indemnifying party in writing of the commencement of such action; but the
omission so to notify the indemnifying party shall not relieve it from any liability which
it may have to any indemnified party otherwise than under the indemnification provisions of
or contemplated by Section 6(a) or 6(b) hereof. In case any such action shall be brought
against any indemnified party and it shall notify an indemnifying party of the commencement
thereof, such indemnifying party shall be entitled to participate therein and, to the extent
that it shall wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel reasonably satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, such indemnifying party shall not be liable to
such indemnified party for any legal expenses of other counsel or any other expenses, in
each case subsequently incurred by such indemnified party, in connection with the defense
thereof other than reasonable and duly documented costs in a manner customary for the
indemnified party of investigation. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent, which shall not be
unreasonably withheld. No indemnifying party shall, without the written consent of the
indemnified party, effect the settlement or compromise of, or consent to the entry of any
judgment with respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the indemnified
party is an actual or potential party to such action or claim) unless such settlement,
compromise or judgment (i) includes an unconditional release of the indemnified party from
all liability arising out of such action or claim and (ii) does not include a statement as
to or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
(d) Contribution. If for any reason the indemnification provisions contemplated by
Section 6(a) or Section 6(b) are unavailable to hold harmless an indemnified party in
respect of any losses, claims, damages or liabilities (or actions in respect thereof)
referred to therein although applicable in accordance with their terms, then each
indemnifying party shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative fault of the indemnifying party
and the indemnified
14
party in connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any other
relevant equitable considerations. The relative fault of such indemnifying party and
indemnified party shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by such indemnifying party or by such
indemnified party, and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The parties hereto agree that
it would not be just and equitable if contributions pursuant to this Section 6(d) were
determined by pro rata allocation (even if the holders or any underwriters or all of them
were treated as one entity for such purpose) or by any other method of allocation which does
not take account of the equitable considerations referred to in this Section 6(d). The
amount paid or payable by an indemnified party as a result of the losses, claims, damages,
or liabilities (or actions in respect thereof) referred to above shall be deemed to include
any legal or other fees or expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 6(d), no holder shall be required to contribute any amount in
excess of the amount by which the dollar amount of the proceeds received by such holder from
the sale of any Registrable Securities (after deducting any fees, discounts and commissions
applicable thereto) exceeds the amount of any damages which such holder has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission or alleged
omission, and no underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Registrable Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any damages which
such underwriter has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission.
(e) The obligations of the Bank under this Section 6 shall be in addition to any
liability which the Bank may otherwise have and shall extend, upon the same terms and
conditions, to each officer, director and partner of each holder and underwriter and each
person, if any, who controls any holder, agent or underwriter within the meaning of Section
15 of the Securities Act; and the obligations of the holders and any agents or underwriters
contemplated by this Section 6 shall be in addition to any liability which the respective
holder, agent or underwriter may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Bank (including any person who, with his
consent, is named in any registration statement as about to become a director of the Bank)
and to each person, if any, who controls the Bank within the meaning of Section 15 of the
Securities Act.
7. Underwritten Offerings.
(a) Selection of Underwriters. If any of the Registrable Securities covered by the
Shelf Registration are to be sold pursuant to an underwritten offering, the managing
underwriter or underwriters thereof shall be designated by Electing Holders holding at least
a majority in aggregate principal amount of the Registrable Securities to be included in
such offering, provided, however, that such designated managing underwriter or underwriters
is or are reasonably acceptable to the Bank.
(b) Participation by Holders. Each holder of Registrable Securities hereby agrees with
each other such holder that no such holder may participate in any underwritten offering
hereunder unless such holder (i) agrees to sell such holder’s Registrable Securities on the
basis provided in any underwriting arrangements approved by the persons entitled hereunder
to approve such arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably required under
the terms of such underwriting arrangements.
8. Rule 144.
The Bank covenants to the holders of Registrable Securities that to the extent it shall be
required to do so under the Exchange Act, the Bank shall timely file the reports required to be
filed by it under the Exchange Act or the Securities Act (including the reports under Section 13
and 15(d) of the Exchange Act referred to in subparagraph (c)(1) of Rule 144 adopted by the
Commission under the Securities Act) and the rules and regulations
15
adopted by the Commission thereunder, and shall take such further action as any holder of
Registrable Securities may reasonably request, all to the extent required from time to time to
enable such holder to sell Registrable Securities without registration under the Securities Act
within the limitations of the exemption provided by Rule 144 under the Securities Act, as such Rule
may be amended from time to time, or any similar or successor rule or regulation hereafter adopted
by the Commission. Upon the request of any holder of Registrable Securities in connection with that
holder’s sale pursuant to Rule 144, the Bank shall deliver to such holder a written statement as to
whether it has complied with such requirements.
9. Miscellaneous.
(a) No Inconsistent Agreements. The Bank represents, warrants, covenants and agrees
that it has not granted, and shall not grant, registration rights with respect to
Registrable Securities or any other securities which would be inconsistent with the rights
granted to the holders of the Registrable Securities in this Agreement.
(b) Notices. All notices, requests, claims, demands, waivers and other communications
hereunder shall be in writing and shall be deemed to have been duly given when delivered by
hand, if delivered personally or by courier, as follows: if to the Bank, to it at ▇▇▇▇▇▇▇▇▇
▇▇▇, (▇▇▇▇) ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Telephone: (5411)
▇▇▇▇-▇▇▇▇, Fax: (5411) ▇▇▇▇-▇▇▇▇, and if to a holder, to the address of such holder set
forth in the security register or other records of the Bank, or to such other address as the
Bank or any such holder may have furnished to the other in writing in accordance herewith,
except that notices of change of address shall be effective only upon receipt.
(c) Parties in Interest. All the terms and provisions of this Agreement shall be
binding upon, shall inure to the benefit of and shall be enforceable by the parties hereto
and the holders from time to time of the Registrable Securities and the respective
successors and assigns of the parties hereto and such holders. In the event that any
transferee of any holder of Registrable Securities shall acquire Registrable Securities, in
any manner, whether by gift, bequest, purchase, operation of law or otherwise, such
transferee shall, without any further writing or action of any kind, be deemed a beneficiary
hereof for all purposes and such Registrable Securities shall be held subject to all of the
terms of this Agreement, and by taking and holding such Registrable Securities such
transferee shall be entitled to receive the benefits of, and be conclusively deemed to have
agreed to be bound by all of the applicable terms and provisions of this Agreement. If the
Bank shall so request, any such successor, assign or transferee shall agree in writing to
acquire and hold the Registrable Securities subject to all of the applicable terms hereof.
(d) Survival. The respective indemnities, agreements, representations, warranties and
each other provision set forth in this Agreement or made pursuant hereto shall remain in
full force and effect regardless of any investigation (or statement as to the results
thereof) made by or on behalf of any holder of Registrable Securities, the Bank, any
director, officer or partner of such holder or the Bank, any agent or underwriter or any
director, officer or partner thereof, or any controlling person of any of the foregoing, and
shall survive delivery of and payment for the Registrable Securities pursuant to the Terms
Agreement and the transfer and registration of Registrable Securities by such holder and the
consummation of an Exchange Offer.
(e) Governing Law. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of New York.
(f) Headings. The descriptive headings of the several Sections and paragraphs of this
Agreement are inserted for convenience only, do not constitute a part of this Agreement and
shall not affect in any way the meaning or interpretation of this Agreement.
(g) Entire Agreement; Amendments. This Agreement and the other writings referred to
herein (including the Indenture and the form of Securities) or delivered pursuant hereto
which form a part hereof
16
contain the entire understanding of the parties with respect to its subject matter.
This Agreement supersedes all prior agreements and understandings between the parties with
respect to its subject matter. This Agreement may be amended and the observance of any term
of this Agreement may be waived (either generally or in a particular instance and either
retroactively or prospectively) only by a written instrument duly executed by the Bank and
the holders of at least a majority in aggregate principal amount of the Registrable
Securities at the time outstanding. Each holder of any Registrable Securities at the time
or thereafter outstanding shall be bound by any amendment or waiver effected pursuant to
this Section 9(g), whether or not any notice, writing or marking indicating such amendment
or waiver appears on such Registrable Securities or is delivered to such holder.
(h) Counterparts. This Agreement may be executed by the parties in counterparts, each
of which shall be deemed to be an original, but all such respective counterparts shall
together constitute one and the same instrument.
(i) Agent for Service; Submission to Jurisdiction. The Bank hereby submits to the
non-exclusive jurisdiction of the U.S. federal and state courts in the Borough of Manhattan
in The City of New York in any suit or proceeding arising out of or relating to this
Agreement or the transactions contemplated hereby. The Bank irrevocably appoints CT
Corporation System at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, as its authorized agent
in the Borough of Manhattan, The City of New York upon which process may be served in any
such suit or proceeding and agrees that service of process upon such agent, and written
notice of said service to the Bank by the person serving the same to the address provided in
Section 9(b), shall be deemed in every respect effective service of process upon the Bank in
any such suit or proceeding.
17
If the foregoing is in accordance with your understanding, please sign and return to us 6
counterparts hereof, and upon the acceptance hereof by you, this letter and such acceptance hereof
shall constitute a binding agreement between the Dealers and the Bank.
| Very truly yours, BANCO MACRO S.A. |
||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||
| Name: | Director | |||
| Title: | Banco Macro S.A. | |||
| Accepted as of the date hereof: UBS SECURITIES LLC |
||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | |||
| Title: | Managing Director | |||
| By: | /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇ ▇▇▇▇▇▇ | |||
| Title: | Associate Director | |||
| CREDIT SUISSE SECURITIES (USA) LLC |
||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||
| Title: | Vice President | |||
| ▇▇▇▇▇▇▇ ▇▇▇▇▇ ARGENTINA SOCIEDAD DE BOLSA S.A. |
||||
| By: | /s/ Daniela Bertagn | |||
| Name: | Daniela Bertagn | |||
| Title: | Authorized Signatory | |||
Annex 1
UBS Securities LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ of America
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ of America
Credit Suisse Securities (USA) LLC
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ of America
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ of America
▇▇▇▇▇▇▇ ▇▇▇▇▇ Argentina Sociedad de Bolsa S.A.
San ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
San ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
Exhibit A
Banco Macro S.A.
INSTRUCTION TO DTC PARTICIPANTS
(Date of Mailing)
URGENT — IMMEDIATE ATTENTION REQUESTED
DEADLINE FOR RESPONSE: [DATE] *
The Depository Trust Company (“DTC”) has identified you as a DTC Participant through which
beneficial interests in 9.75% Fixed/Floating Rate Non-Cumulative Junior Subordinated Notes due 2036
(CUSIP Nos. P1047V AB 3 (Regulation S) and 05963G AA 6 (Rule 144A)) (the “Securities”) of Banco
Macro S.A. (the “Bank”) are held.
The Bank is in the process of registering the Securities under the Securities Act of 1933 for
resale by the beneficial owners thereof. In order to have their Securities included in the
registration statement, beneficial owners must complete and return the enclosed Notice of
Registration Statement and Selling Securityholder Questionnaire.
It is important that beneficial owners of the Securities receive a copy of the enclosed
materials as soon as possible as their rights to have the Securities included in the
registration statement depend upon their returning the Notice and Questionnaire by [Deadline For
Response]. Please forward a copy of the enclosed documents to each beneficial owner that holds
interests in the Securities through you. If you require more copies of the enclosed materials or
have any questions pertaining to this matter, please contact Banco Macro S.A., ▇▇▇▇▇▇▇▇▇ 447,
(1041) Buenos Aires, Argentina, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Telephone: (5411) ▇▇▇▇-▇▇▇▇, Fax:
(5411) ▇▇▇▇-▇▇▇▇.
| * Not less than 28 calendar days from date of mailing. |
A-1
Banco Macro S.A.
Notice of Registration Statement
and
Selling Securityholder Questionnaire
(Date)
Reference is hereby made to the Exchange and Registration Rights Agreement dated December 18, 2006
(the “Exchange and Registration Rights Agreement”) between Banco Macro S.A. (the “Bank”) and the
Dealers named therein. Pursuant to the Exchange and Registration Rights Agreement, the Bank
intends to file with the U.S. Securities and Exchange Commission (the “Commission”) a registration
statement on Form [___] (the “Shelf Registration Statement”) for the registration and resale under
Rule 415 of the Securities Act of 1933, as amended (the “Securities Act”), of the Bank’s 9.75%
Fixed/Floating Rate Non-Cumulative Junior Subordinated Notes Due 2036 (CUSIP Nos. P1047V AB 3
(Regulation S) and 05963G AA 6 (Rule 144A)) (the “Securities”). A copy of the Exchange and
Registration Rights Agreement is attached hereto. All capitalized terms not otherwise defined
herein shall have the meanings ascribed thereto in the Exchange and Registration Rights Agreement.
Each beneficial owner of Registrable Securities is entitled to have the Registrable Securities
beneficially owned by it included in the Shelf Registration Statement. In order to have
Registrable Securities included in the Shelf Registration Statement, this Notice and Questionnaire
must be completed, executed and delivered to the Bank’s counsel at the address set forth herein for
receipt ON OR BEFORE [Deadline for Response]. Beneficial owners of Registrable Securities who do
not complete, execute and return this Notice and Questionnaire by such date (i) will not be named
as selling securityholders in the Shelf Registration Statement and (ii) may not use the prospectus
forming a part thereof for resales of Registrable Securities.
Certain legal consequences arise from being named as a selling securityholder in the Shelf
Registration Statement and related prospectus. Accordingly, holders and beneficial owners of
Registrable Securities are advised to consult their own securities law counsel regarding the
consequences of being named or not being named as a selling securityholder in the Shelf
Registration Statement and related prospectus.
A-2
ELECTION
The undersigned holder (the “Selling Securityholder”) of Registrable Securities hereby elects to
include in the Shelf Registration Statement the Registrable Securities beneficially owned by it and
listed below in Item (3). The undersigned, by signing and returning this Notice and Questionnaire,
agrees to be bound with respect to such Registrable Securities by the terms and conditions of this
Notice and Questionnaire and the Exchange and Registration Rights Agreement. Such holder agrees
severally and not jointly, to (i) indemnify and hold harmless the Bank and all other holders of
Registrable Securities, against any losses, claims, damages or liabilities to which the Bank or
such other holders of Registrable Securities may become subject, under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue statement of a material fact
contained in such registration statement, or any preliminary, final or summary prospectus contained
therein or furnished by the Bank to any such holder or underwriter, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading, in each case to the extent, but
only to the extent, that such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written information furnished to the Bank
by such holder expressly for use therein, and (ii) reimburse the Bank for any reasonable and duly
documented legal or other expenses incurred by the Bank in connection with investigating or
defending any such action or claim as such expenses are incurred; provided, however, that no such
holder shall be required to undertake liability to any person hereunder for any amounts in excess
of the dollar amount of the proceeds to be received by such holder from the sale of such holder’s
Registrable Securities pursuant to such registration.
Upon any sale of Registrable Securities pursuant to the Shelf Registration Statement, the Selling
Securityholder will be required to deliver to the Bank and the Trustee the Notice of Transfer set
forth in Appendix A to the Prospectus and as Exhibit B to the Exchange and Registration Rights
Agreement.
The Selling Securityholder hereby provides the following information to the Bank and represents and
warrants that such information is accurate and complete:
A-3
QUESTIONNAIRE
(1) (a) Full Legal Name of Selling Securityholder:
| (b) | Full Legal Name of Registered Holder (if not the same as in (a) above) of Registrable Securities Listed in Item (3) below: | ||
| (c) | Full Legal Name of DTC Participant (if applicable and if not the same as (b) above) Through Which Registrable Securities Listed in Item (3) below are Held: | ||
| (2) | Address for Notices to Selling Securityholder: |
| Telephone: | ||||||
| Fax: | ||||||
| Contact Person: |
| (3) | Beneficial Ownership of Securities: | |
| Except as set forth below in this Item (3), the undersigned does not beneficially own any Securities. |
| (a) | Principal amount of Registrable Securities beneficially owned: | ||
| CUSIP No(s). of such Registrable Securities: | |||
| (b) | Principal amount of Securities other than Registrable Securities beneficially owned: CUSIP No(s). of such other Securities: | ||
| (c) | Principal amount of Registrable Securities which the undersigned wishes to be included in the Shelf Registration Statement: CUSIP No(s). of such Registrable Securities to be included in the Shelf Registration Statement: |
| (4) | Beneficial Ownership of Other Securities of the Bank: |
| Except as set forth below in this Item (4), the undersigned Selling Securityholder
is not the beneficial or registered owner of any other securities of the Bank other
than the Securities listed above in Item (3). |
A-4
| State any exceptions here: |
| (5) | Relationships with the Bank: |
| Except as set forth below, neither the Selling Securityholder nor any of its affiliates, officers, directors or principal equity holders (5% or more) has held any position or office or has had any other material relationship with the Bank (or their respective predecessors or affiliates) during the past three years. | |||
| State any exceptions here: |
| (6) | Plan of Distribution: |
| Except as set forth below, the undersigned Selling Securityholder intends to distribute the Registrable Securities listed above in Item (3) only as follows (if at all): Such Registrable Securities may be sold from time to time directly by the undersigned Selling Securityholder or, alternatively, through underwriters, broker-dealers or agents. Such Registrable Securities may be sold in one or more transactions at fixed prices, at prevailing market prices at the time of sale, at varying prices determined at the time of sale, or at negotiated prices. Such sales may be effected in transactions (which may involve crosses or block transactions) (i) on any national securities exchange or quotation service on which the Registered Securities may be listed or quoted at the time of sale, (ii) in the over-the-counter market, (iii) in transactions otherwise than on such exchanges or services or in the over-the-counter market, or (iv) through the writing of options. In connection with sales of the Registrable Securities or otherwise, the Selling Securityholder may enter into hedging transactions with broker-dealers, which may in turn engage in short sales of the Registrable Securities in the course of hedging the positions they assume. The Selling Securityholder may also sell Registrable Securities short and deliver Registrable Securities to close out such short positions, or loan or pledge Registrable Securities to broker-dealers that in turn may sell such securities. | |||
| State any exceptions here: |
By signing below, the Selling Securityholder acknowledges that it understands its obligation to
comply, and agrees that it will comply, with the provisions of the Exchange Act and the rules and
regulations thereunder, particularly Regulation M.
In the event that the Selling Securityholder transfers all or any portion of the Registrable
Securities listed in Item (3) above after the date on which such information is provided to the
Bank, the Selling Securityholder agrees to notify the transferee(s) at the time of the transfer of
its rights and obligations under this Notice and Questionnaire and the Exchange and Registration
Rights Agreement.
By signing below, the Selling Securityholder consents to the disclosure of the information
contained herein in its answers to Items (1) through (6) above and the inclusion of such
information in the Shelf Registration Statement and related prospectus. The Selling Securityholder
understands that such information will be relied upon by the Bank in connection with the
preparation of the Shelf Registration Statement and related prospectus.
In accordance with the Selling Securityholder’s obligation under Section 3(f) of the Exchange and
Registration Rights Agreement to provide such information as may be required by law for inclusion
in the Shelf Registration Statement, the Selling Securityholder agrees to promptly notify the Bank
of any inaccuracies or changes in the information provided herein which may occur subsequent to the
date hereof at any time while the Shelf Registration Statement remains in effect. All notices to
the Bank hereunder and pursuant to the Exchange and Registration Rights Agreement shall be made in
writing, by hand-delivery or air courier guarantying overnight delivery as follows:
A-5
Banco Macro ▇.▇.
▇▇▇▇▇▇▇▇▇ 447
(1041) City of Buenos Aires, Argentina
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ 447
(1041) City of Buenos Aires, Argentina
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Once this Notice and Questionnaire is executed by the Selling Securityholder and received by the
Bank’s counsel, the terms of this Notice and Questionnaire, and the representations and warranties
contained herein, shall be binding on, shall inure to the benefit of and shall be enforceable by
the respective successors, heirs, personal representatives, and assigns of the Bank and the Selling
Securityholder (with respect to the Registrable Securities beneficially owned by such Selling
Securityholder and listed in Item (3) above. This Agreement shall be governed in all respects by
the laws of the State of New York.
A-6
IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused this Notice and
Questionnaire to be executed and delivered either in person or by its duly authorized agent.
Dated:
| Selling Securityholder (Print/type full legal name of beneficial owner of Registrable Securities) |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE FOR RECEIPT ON OR BEFORE
[DEADLINE FOR RESPONSE] TO THE BANK’S COUNSEL AT:
A-7
Exhibit B
NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT
Banco Macro ▇.▇.
▇▇▇▇▇▇▇▇▇ 447
(1041) City of Buenos Aires, Argentina
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ 447
(1041) City of Buenos Aires, Argentina
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
| Re: | Banco Macro S.A. (the “Bank”) 9.75% Fixed/Floating Rate Non-Cumulative Junior Subordinated Notes due 2036 (the “Securities”) |
Dear Sirs:
Please be advised that
has transferred $
aggregate principal
amount of the above-referenced Securities pursuant to an effective Registration Statement on Form
[ ]
(File No. 333- ) filed by the Bank.
We hereby certify that the prospectus delivery requirements, if any, of the Securities Act of 1933,
as amended, have been satisfied and that the above-named beneficial owner of the Securities is
named as a “Selling Securityholder” in the Prospectus dated [date] or in supplements thereto, and
that the aggregate principal amount of the Securities transferred are the Securities listed in such
prospectus opposite such owner’s name.
Dated:
| Very truly yours, | ||||||
| By: | ||||||
| (Authorized Signature) | ||||||
B-1