IRSA PROPIEDADES COMERCIALES S.A., as Issuer and The Bank of New York Mellon, as Trustee, Co-Registrar, Principal Paying Agent and Transfer Agent, The Bank of New York Mellon (Luxembourg) S.A., as Luxembourg Paying Agent and
EXHIBIT 2.6
EXECUTION
COPY
as Issuer
and
The Bank of New York Mellon,
as Trustee, Co-Registrar,
Principal Paying Agent and Transfer Agent,
The Bank of New York Mellon (Luxembourg) S.A.,
as Luxembourg Paying Agent and
Luxembourg Transfer
Agent
and
Banco
Santander Río S.A.,
as
Registrar, Paying Agent, Transfer Agent and
Representative
of the Trustee in Argentina
First
Supplemental Indenture
Dated
as of March 23, 2016
TABLE
OF CONTENTS
Page
ARTICLE
I DEFINITIONS SECTION 1
Section
1.1. Certain
Terms Defined in the Indenture.1
Section
1.2. Definitions.1
ARTICLE
II FORM AND TERMS OF THE NOTES 1
Section
2.1. Form
and Dating.1
Section
2.2. Terms
of the Notes.1
Section
2.3. Optional
Redemption.1
ARTICLE
III MISCELLANEOUS 1
Section
3.1. Governing
Law.1
Section
3.2. Multiple
Counterparts.1
Section
3.3. Severability.1
Section
3.4. Ratification.1
Section
3.5. Rights,
Protections and Immunities of the Trustee.1
Section
3.6. Trustee
Not Responsible for Recitals.1
EXHIBIT
A Form of 8.750% Notes due 2023, Series Xx. 0 X-0
XXXXX
XXXXXXXXXXXX XXXXXXXXX
FIRST
SUPPLEMENTAL INDENTURE (this “First Supplemental
Indenture”), dated as of March 23, 2016, between IRSA
PROPIEDADES COMERCIALES S.A., a sociedad anónima organized under
the laws of the Republic of Argentina (“Argentina”) and domiciled
at Xxxxxx 000, 00xx Xxxxx, (X0000XXX) Xxxx xx Xxxxxx Xxxxx,
Xxxxxxxxx (“IRSA
PC”) , incorporated, organized and registered with the
Public Registry of Commerce of the City of Buenos Aires (IGJ) on
August 29, 1889, under Number 323, Page 6, Book 85 of the Stock
Corporations Volume, with a term of duration which expires on
August 28, 2087, The Bank of New York Mellon, a corporation
organized under the laws of the State of New York authorized to
conduct a banking business, as trustee (in such capacity, the
“Trustee”), co-registrar
(in such capacity, the “Co-Registrar”), principal
paying agent (in such capacity, the “Principal Paying Agent”
and, together with the Luxembourg Paying Agent (as defined below)
and any other paying agents appointed by IRSA PC in their
respective capacities as such, the “Paying Agents”) and
transfer agent (in such capacity, a “Transfer Agent” and,
together with the Luxembourg Transfer Agent (as defined below) and
any other transfer agents appointed by IRSA PC in their respective
capacities as such, the “Transfer Agents”), The
Bank of New York Mellon (Luxembourg) S.A., as paying agent in
Luxembourg (the “Luxembourg Paying Agent”)
and transfer agent in Luxembourg (the “Luxembourg Transfer
Agent”) and Banco Santander Río S.A., a bank duly
incorporated and existing under the laws of Argentina, as registrar
(in such capacity, the “Registrar”), Paying
Agent, Transfer Agent and representative of the Trustee in
Argentina (in such capacity, the “Representative of the Trustee in
Argentina”).
RECITALS OF IRSA
PC
WHEREAS, IRSA PC,
the Trustee and the Representative of the Trustee in Argentina
executed and delivered an Indenture, dated as of March 23, 2016
(the “Base Indenture” and, as
supplemented by this First Supplemental Indenture, the
“Indenture”), to provide
for the issuance by IRSA PC from time to time of Securities to be
issued in one or more Series as provided in the
Indenture;
WHEREAS, the
issuance and sale of US$360,000,000 aggregate principal amount of a
new Series of the Securities of IRSA PC designated as its
“8.750% Notes due 2023, Series No. 2” (the
“Notes”) have been
authorized by resolutions adopted by the Board of Directors of IRSA
PC;
WHEREAS, IRSA PC
desires to issue and sell US$360,000,000 aggregate principal amount
of the Notes on the date hereof;
WHEREAS, Sections
2.1, 2.3 and 7.1 of the Base Indenture provide that IRSA PC, when
authorized by a resolution of the Board of Directors of IRSA PC,
and the Trustee may amend or supplement the Base Indenture to
provide for the issuance of and to establish the form or terms and
conditions of Securities of any Series as permitted by the Base
Indenture;
WHEREAS, IRSA PC
desires to establish the form, terms and conditions of the Notes;
and
WHEREAS, all things
necessary to make this First Supplemental Indenture a valid
supplement to the Base Indenture according to its terms and the
terms of the Base Indenture have been done;
NOW,
THEREFORE, IRSA PC, the Trustee, the Co-Registrar, the Paying
Agents, the Transfer Agents, the Registrar and the Representative
of the Trustee in Argentina hereby agree that the following
provisions shall supplement the Base Indenture solely with respect
to the Notes:
ARTICLE
I
Section
1.1. Provisions of the Base
Indenture.
Except
insofar as otherwise expressly provided herein, all of the
definitions, provisions, terms and conditions of the Base Indenture
shall remain in full force and effect. The Base Indenture and this
First Supplemental Indenture shall be read, taken and considered as
one and the same instrument for all purposes and every Holder of
Notes authenticated and delivered hereunder shall be bound hereby.
Notwithstanding any other provision of this Section 1.1 or the Base
Indenture or this First Supplemental Indenture to the contrary, to
the extent any provisions of this First Supplemental Indenture or
any Notes issued hereunder shall conflict with any provision of the
Base Indenture, the provisions of this First Supplemental Indenture
or the Notes, as applicable, shall control in respect of the Notes
but not any other Series of Securities.
Section
1.2. Definitions.
For all
purposes of this First Supplemental Indenture and the Notes, except
as otherwise expressly provided or unless the subject matter or
context otherwise requires:
(a) any
reference to an “Article” or a
“Section” refers to an
Article or Section, as the case may be, of this First Supplemental
Indenture;
(b) the
words “herein,”
“hereof” and
“hereunder” and other
words of similar import refer to this First Supplemental Indenture
as a whole and not to any particular Article, Section or other
subsection;
(c) all
terms used in this First Supplemental Indenture and not defined
herein have the meanings assigned to them in the Base
Indenture;
(d) the
term “Securities,” as defined
in the Base Indenture and as used therein (including in any
definition therein), shall be deemed to include or refer to, as
applicable, the Notes;
(e) the
following terms shall have the meanings given to them in this
Section 1.2:
“Comparable Treasury
Issue” means the United States Treasury security or
securities selected by the Independent Investment Banker as having
an actual or interpolated maturity from the applicable Redemption
Date to March 23, 2023 that would be utilized, at the time of
selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of a maturity most
nearly equal to March 23, 2023.
“Comparable Treasury
Price” means, with respect to any Redemption Date, (1)
the average of the Reference Treasury Dealer Quotations for such
Redemption Date, after excluding the highest and lowest such
Reference Treasury Dealer Quotation or (2) if fewer than four such
Reference Treasury Dealer Quotations are obtained, the average of
all such quotations.
“Independent Investment
Banker” means one of the Reference Treasury Dealers
appointed by IRSA PC.
“Moody’s”
means Xxxxx’x Investors Service, Inc. or any successor
thereto.
“Pricing Supplement” means
the pricing supplement dated March 17, 2016 relating to the Notes,
including the accompanying Offering Memorandum dated March 17,
2016.
“Reference Treasury
Dealer” means (a) each of Citigroup Global Markets
Inc. and X.X. Xxxxxx Securities LLC (or their respective affiliates
that are primary U.S. government securities dealers in New York
City (each, a “Primary Treasury
Dealer”)) and their respective successors and (b) not
less than three other Primary Treasury Dealers reasonably
designated by the Issuer; provided that if any of the
foregoing ceases to be a Primary Treasury Dealer, the Issuer will
substitute therefor another Primary Treasury Dealer.
“Reference Treasury Dealer
Quotation” means, with respect to each Reference
Treasury Dealer and any Redemption Date, the average, as determined
by the Independent Investment Banker, of the bid and asked prices
for the Comparable Treasury Issue (expressed in each case as a
percentage of its principal amount) quoted in writing to the
Independent Investment Banker by such Reference Treasury Dealer at
3:30 p.m. (New York City time) on the third Business Day preceding
such Redemption Date.
“S&P”
means Standard & Poor’s Ratings Services, a Standard
& Poor’s Financial Services LLC business, or any
successor thereto.
“Treasury Rate” means,
with respect to any Redemption Date, the rate per annum equal to
the semi-annual equivalent yield to maturity or interpolated
maturity (on a day count basis) of the Comparable Treasury Issue,
assuming a price for the Comparable Treasury Issue (expressed as a
percentage of its principal amount) equal to the Comparable
Treasury Price for such Redemption Date.
ARTICLE
II
Section
2.1. Form and Dating.
The
Notes and the Trustee’s certificate of authentication shall
be substantially in the form of Exhibit A hereto. The Notes
shall be executed on behalf of IRSA PC by a member of the Board of
Directors of IRSA PC and a member of the Supervisory Committee of
IRSA PC. The Notes may have notations, legends or endorsements
required by law, stock exchange rules or usage. Each Note shall be
dated the date of its authentication. The Notes and any beneficial
interest in the Notes shall be in minimum denominations of US$500
and integral multiples of US$500 in excess thereof.
The
terms and conditions contained in the Notes shall constitute, and
are hereby expressly made, a part of the Indenture and IRSA PC and
the Trustee, by their execution and delivery of this First
Supplemental Indenture, expressly agree to such terms and
conditions and to be bound thereby.
(a) Global Securities. The Notes
designated herein shall be issued initially in the form of one or
more fully registered DTC Global Securities, which shall be
deposited with The Depository Trust Company, New York, New York
(the “Depositary”) and
registered in the name of Cede & Co., the Depositary’s
nominee, duly executed by IRSA PC and authenticated by the
Trustee.
In
accordance with Section 2.1 of the Base Indenture, the Notes
initially sold within the United States to U.S. Persons that
are Qualified Institutional Buyers will be issued in the form of
one or more Rule 144A Global Securities. The Notes initially
sold outside the United States in reliance on Regulation S
under the Securities Act will be issued in the form of one or more
Regulation S Global Securities, each in book-entry form
without interest coupons, deposited with a custodian for the
Depositary and registered in the name of the Depositary or its
nominee and otherwise comply with the provisions of
Section 2.1 of the Base Indenture. Each of the Global
Securities shall be dated the date of its authentication. Global
Securities may not be transferred except by the Depositary, in
whole and not in part, to another nominee of the Depositary or to a
successor of the Depositary or its nominee except as set forth
below.
(b) Book-Entry Provisions. This
Section 2.1(b) shall apply only to the Global Securities deposited
with or on behalf of the Depositary.
Depositary
participants shall have no rights either under the Indenture or
with respect to any Global Securities held on their behalf by the
Depositary or under such Global Securities. The Depositary shall be
treated by IRSA PC, the Trustee and any agent of IRSA PC or the
Trustee as the absolute owner of such Global Security for all
purposes under the Indenture. Notwithstanding the foregoing,
nothing herein shall prevent IRSA PC 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 the Depository participants, the operation of customary
practices of such Depositary governing the exercise of the rights
of an owner of a beneficial interest in the Global
Securities.
(c) Certificated Notes. Notes
issued in the form of Certificated Securities shall be
substantially in the form of Exhibit A hereto, but without
including the text referred to therein as applying only to Global
Securities. Except as provided in Section 2.7 of the Base
Indenture, owners of beneficial interests in the Global Securities
will not be entitled to receive physical delivery of Certificated
Securities.
(d) Transfer and Exchange of the
Notes. The transfer and exchange of beneficial interests in
the Global Securities shall be effected through the Depositary, in
accordance with the Indenture and the procedures of the Depositary
therefor. Beneficial interests in the Global Securities may be
transferred to Persons who take delivery thereof in the form of a
beneficial interest in the Global Securities in accordance with the
terms of the Base Indenture.
Section
2.2. Terms of the
Notes.
The
following terms relating to the Notes are hereby
established:
(a) Title. The Notes shall
constitute a Series of Securities having the title “8.750%
Notes due 2023, Series No. 2”.
(b) Principal Amount. The aggregate
principal amount of the Notes that may be initially authenticated
and delivered under the Indenture (except for Notes authenticated
and delivered upon registration of, transfer of, or in exchange
for, or in lieu of, other Notes in accordance with the Indenture)
shall be US$360,000,000. IRSA PC may from time to time, without the
consent of the Holders of the Notes, issue additional Notes (in any
such case “Additional Notes”) of the
same Series as the Notes; provided that such Additional
Notes have the same terms and conditions as the Notes (except for
the date of issue, the issue price, the applicable legends, the
date from which interest accrues and, if applicable, the first
payment of interest); and provided further that if the
Additional Notes are not fungible for U.S. federal income tax
purposes with the previously outstanding Notes, such Additional
Notes shall have a separate CUSIP number. Such Additional Notes
shall be consolidated with and form a single Series with the
previously outstanding Notes.
(c) Stated Maturity. The entire
outstanding principal of the Notes shall be payable on March 23,
2023, unless earlier redeemed or repurchased.
(d) Interest Rate; Place and Method of
Payment. The rate at which the Notes shall bear interest
shall be 8.750% per annum; the date from which interest shall
accrue on the Notes shall be March 23, 2016, or the most recent
Interest Payment Date to which interest has been paid or provided
for; the Interest Payment Dates for the Notes shall be March 23 and
September 23 of each year, beginning September 23, 2016; the
interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date, will be paid, in immediately available
funds, to the Persons in whose names the Notes (or one or more
predecessor Notes) are registered at the close of business on the
Regular Record Date for such interest, which shall be March 22 or
September 22, as the case may be, next preceding such Interest
Payment Date (whether or not such date is a Business Day). Interest
on the Notes shall be computed on the basis of a 360-day year
consisting of twelve 30-day months. Any such interest not
punctually paid or duly provided for shall forthwith cease to be
payable to the respective Holders on such Regular Record Date, and
such defaulted interest, may be paid to the Persons in whose names
the Notes (or one or more predecessor Notes) is registered at the
close of business on a special record date for the payment of such
defaulted interest to be fixed by the Trustee, notice whereof shall
be given to Holders of Notes not less than fifteen (15) days prior
to such special record date, or may be paid at any time in any
other lawful manner not inconsistent with requirements of any
securities exchange on which the Notes may be listed, and upon such
notice as may be required by such exchange, all as more fully
provided in Section 2.9 of the Indenture. Payment of principal and
interest on this Note will be made at the Corporate Trust Office of
the Trustee or such other office or agency of IRSA PC as may be
designated for such purpose, in such coin or currency of the United
States of America as at the time of payment is legal tender for
payment of public and private debts; provided, however, that each installment
of interest and principal on the Notes may at IRSA PC’s
option be paid in immediately available funds by transfer to an
account maintained by the payee located in the United
States.
(e) Redemption. The Notes are
redeemable at the option of IRSA PC in accordance with Article X of
the Base Indenture and Section 2.3 hereof. The Notes are not
redeemable at the option of the Holders.
(f) Luxembourg Paying Agent and Transfer
Agent. The Bank of New York Mellon (Luxembourg) S.A., as
Luxembourg Paying Agent and Luxembourg Transfer Agent, hereby
agrees and accepts the terms of, and undertakes to perform its
obligations and the specific powers and duties delegated to it
(together with such powers and duties that are incidental thereto)
under, the Indenture, in each case, subject to the rights,
protections, immunities and indemnities granted to it as an
“Agent” under the Indenture . As of the date of this
First Supplemental Indenture, the office of the Luxembourg Paying
Agent and the Luxembourg Transfer Agent is: The Bank of New York
Mellon (Luxembourg) S.A., Vertigo Building – Polaris, 0-0 xxx
Xxxxxx Xxxxxxx, X-0000 Xxxxxxxxxx.
(x) Sinking Fund Obligation. The
Notes will not be subject to any sinking fund.
(h) Mandatory Redemption or
Repurchase. IRSA PC shall be required to make an offer to
repurchase the Notes as provided in Section 3.21 of the Base
Indenture.
(i) Form and Denomination of Notes.
The Notes shall be issued in registered form in the denominations
specified in Section 2.1 hereof.
(j) Specified Currency. The
currency of denomination of the Notes is U.S. dollars. Payment of
principal of and interest and premium, if any, Additional Amounts
and all other amounts due and owning under the Notes shall be
payable in U.S. dollars.
(k) Payment Not Made by Reference to
Index. Payments of principal of or interest or premium, if
any, on the Notes shall not be determined by reference to any
index.
(l) Meetings, Modifications and
Waivers. The terms of the Notes and the Indenture may be
modified or waived as provide in Article VII of the Base
Indenture.
(m) Additional/Different Covenants;
Modification to Events of Default. There is no addition to,
deletion of or change in any covenants or Events of Default set
forth in the Base Indenture as applicable to the
Notes.
(n) Other Terms of the Notes. The
Notes will benefit from the other terms and conditions set forth in
the Base Indenture, as supplemented and/or modified by this First
Supplemental Indenture only with respect to the Notes.
(o) Conversion. The Notes are not
convertible or exchangeable for shares of common stock or preferred
stock of IRSA PC.
(p) Agents. The provisions of
Section 3.2 of the Base Indenture shall apply to the
Notes.
(q) Defeasance. The Notes are
defeasible pursuant to Article XI of the Base
Indenture.
Section
2.3. Optional
Redemption.
(a) The provisions of
Article X of the Base Indenture shall apply to the Notes and shall
be supplemented by the following clauses (b) and (c).
(b) Optional Redemption with a Make-Whole
Premium. Prior to March 23, 2020, IRSA PC may, at its
option, to redeem the Notes, in whole or in part, at any time or
from time to time at a redemption price equal to the greater of (1)
100% of the outstanding principal amount of such Notes, and (2) the
sum of the present values of each remaining scheduled payment of
principal and interest thereon (excluding accrued but unpaid
interest to, but excluding, the applicable Redemption Date),
discounted to the applicable Redemption Date on a semi-annual basis
(assuming a 360-day year consisting of twelve 30-day months) at the
Treasury Rate plus 50 basis points (the “Make-Whole Amount”) plus,
in either case, accrued and unpaid interest to, but excluding, the
applicable Redemption Date, subject to the right of Holders of
Notes of record on the relevant Regular Record Date to receive
interest due on the relevant Interest Payment Date.
(c) Optional Redemption Without a Make-Whole
Premium. On and after March 23, 2020, IRSA PC may, at its
option, redeem the Notes, in whole or in part, at any time or from
time to time at the redemption prices (expressed as percentages of
principal amount of the Notes to be redeemed) set forth below, plus
accrued and unpaid interest thereon, if any, to but excluding the
applicable Redemption Date, subject to the right of Holders of
Notes of record on the relevant Regular Record Date to receive
interest due on the relevant Interest Payment Date, if redeemed
during the twelve-month period commencing on March 23 of each of
the years indicated below:
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Year
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Percentage
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2020
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104.375%
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2021
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102.188%
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2022
and thereafter
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100.000%
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(d) On and after the
Redemption Date for the Notes, interest will cease to accrue on the
Notes or any portion thereof called for redemption, unless IRSA PC
defaults in the payment of the applicable redemption price. In the
event IRSA PC elects to redeem the Notes, IRSA PC will deposit with
a Paying Agent, or the Trustee, funds sufficient to pay the
applicable redemption price of the Notes to be redeemed on such
Redemption Date in accordance with Section 10.2 of the Base
Indenture. If less than all of the Notes are to be redeemed, the
Notes to be redeemed will be selected in accordance with Section
10.1(d) of the Base Indenture.
(e) All redemption
prices with respect to the Notes shall be calculated by IRSA
PC.
ARTICLE
III
Section
3.1. Governing Law.
This
First Supplemental Indenture and the Notes shall be governed by and
construed in accordance with the laws of the State of New York;
provided that all
matters relating to the due authorization, execution, issuance and
delivery of the Notes by IRSA PC, and matters relating to the legal
requirements necessary in order for the Notes to qualify as
“obligaciones negociables
simples no convertibles” under Argentine law, shall be
governed by the Negotiable Obligations Law, together with the
Argentine Companies Law, the Capital Markets Law and the rules of
the CNV and other applicable Argentine laws and
regulations.
Section
3.2. Multiple
Counterparts.
The
parties may sign multiple counterparts of this First Supplemental
Indenture. Each signed counterpart shall be deemed an original, but
all of them together represent one and the same First Supplemental
Indenture.
Section
3.3. Severability.
Each
provision of this First Supplemental Indenture shall be considered
separable and if for any reason any provision which is not
essential to the effectuation of the basic purpose of this First
Supplemental Indenture or the Notes 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 and a Holder shall have no claim therefor against any party
hereto.
Section
3.4. Ratification.
The
Trustee accepts the trusts created by the Indenture, as
supplemented by this First Supplemental Indenture, and agrees to
perform the same upon the terms and conditions of the Indenture, as
supplemented by this First Supplemental Indenture.
All of
the rights, protections, benefits, immunities and indemnities
afforded or given to the Trustee and the Agents pursuant to the
Base Indenture shall apply to and be enforceable by the Trustee and
each Agent acting in their respective capacities relating to the
Notes and pursuant to this First Supplemental Indenture
mutatis mutandi as if set
forth and incorporated herein. The Trustee is acting hereunder, not
in its individual capacity, but solely in its capacity as Trustee
for the Notes under the Indenture.
The
recitals contained herein and in the Notes, shall be taken as the
statements of IRSA PC, and the Trustee assumes no responsibility
for the correctness thereof. The Trustee makes no representation as
to the validity or sufficiency of this First Supplemental
Indenture, or any offering materials or of the Notes. The Trustee
shall not be accountable for the use or application by IRSA PC of
any of the Notes or of the proceeds thereof.
[Remainder of page
intentionally left blank.]
IN
WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed as of the date first
above written.
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By:
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Name:
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Title:
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By:
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Name:
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Title:
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[Signature page to the First Supplemental Indenture]
-3-
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THE
BANK OF NEW YORK MELLON, as Trustee, Co-Registrar, Principal Paying
Agent and Transfer Agent.
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By:
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Name:
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Title:
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[Signature page to the First Supplemental Indenture]
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THE BANK OF NEW YORK MELLON (LUXEMBOURG) S.A., as Luxembourg Paying Agent and Transfer
Agent.
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By:
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Name:
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Title:
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[Signature page to the First Supplemental Indenture]
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BANCO
SANTANDER RÍO S.A., as Registrar, Paying Agent, Transfer Agent
and Representative of the Trustee in Argentina.
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By:
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Name:
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Title:
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By:
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Name:
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Title:
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[Signature page to the First Supplemental Indenture]
-3-
[FORM OF FACE OF GLOBAL SECURITY]
Registered No.:
[R-[__]][S-[__]]
CUSIP
No.: [Rule 144A: 463588 AA1][ Regulation S: P5880U
AB6]
ISIN
No.: [Rule 144A: US463588AA16][ Regulation S:
USP5880UAB63]
Registered Holder:
[Cede & Co., or registered assigns]
IRSA
Propiedades Comerciales S.A. was organized as a stock corporation
(sociedad anónima)
under the laws of Argentina for a term expiring on August 28, 2087
and was registered on August 29, 1889 under No. 323, Page 6, Book
85, of the Stock Corporations Volume of the Public Registry of
Commerce of the City of Buenos Aires, Argentina, and its registered
domicile is at Xxxxxx 000, 00xx Xxxxx, Xxxx xx Xxxxxx Xxxxx,
Xxxxxxxxx.
[RULE 144A/ REGULATION S] GLOBAL SECURITY
representing
US$[Aggregate principal amount]
8.750% NOTES DUE 2023, SERIES NO. 2
UNLESS
(1) THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (“DTC”) TO IRSA PROPIEDADES
COMERCIALES S.A. OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, (2) ANY NOTE ISSUED IS REGISTERED IN THE NAME
OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC AND (3) ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC, ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
BECAUSE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
TRANSFERS OF THIS
NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO
DTC, NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR’S NOMINEE, AND TRANSFERS OF INTERESTS IN THIS NOTE
SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO
HEREIN.
[INCLUDE THE
FOLLOWING RESTRICTIVE LEGEND FOR A RULE 144A GLOBAL SECURITY
(UNLESS SUCH LEGEND MAY BE REMOVED PURSUANT TO THE INDENTURE): THIS
NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933,
AS AMENDED (THE “SECURITIES ACT”), OR ANY
OTHER SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING THIS NOTE,
AGREES FOR THE BENEFIT OF IRSA PROPIEDADES COMERCIALES S.A.
(“IRSA
PC”) THAT THIS NOTE OR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED
ONLY (I) TO IRSA PC OR TO ANY DEALERS APPOINTED BY IRSA PC WITH
RESPECT TO A PARTICULAR SERIES OF NOTES (EACH, A
“DEALER”
AND COLLECTIVELY, THE “DEALERS”) OR BY, THROUGH
OR IN A TRANSACTION APPROVED BY A DEALER, (II) SO LONG AS THIS NOTE
IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES
ACT (“RULE
144A”), TO A PERSON WHO THE SELLER REASONABLY BELIEVES
IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A) IN
ACCORDANCE WITH RULE 144A, (III) IN AN OFFSHORE TRANSACTION IN
ACCORDANCE WITH RULE 903 OR 904 OF REGULATION S UNDER THE
SECURITIES ACT, (IV) PURSUANT TO AN EXEMPTION FROM REGISTRATION
UNDER THE SECURITIES ACT AFFORDED BY RULE 144 UNDER THE SECURITIES
ACT (IF AVAILABLE) OR (V) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT, AND IN EACH OF SUCH CASES IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES OR OTHER APPLICABLE JURISDICTION. THE HOLDER HEREOF,
BY PURCHASING THIS NOTE, REPRESENTS AND AGREES FOR THE BENEFIT OF
IRSA PC THAT IT WILL NOTIFY ANY PURCHASER OF THIS NOTE FROM IT OF
THE RESALE RESTRICTIONS REFERRED TO ABOVE.
THE
FOREGOING LEGEND MAY BE REMOVED FROM THIS NOTE ON SATISFACTION OF
THE CONDITIONS SPECIFIED IN THE INDENTURE REFERRED TO
HEREIN.]
[INCLUDE THE
FOLLOWING RESTRICTIVE LEGEND FOR A REGULATION S GLOBAL SECURITY
(UNLESS SUCH LEGEND MAY BE REMOVED PURSUANT TO THE INDENTURE): THIS
NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933,
AS AMENDED (THE “SECURITIES ACT”), OR ANY
OTHER SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING THIS NOTE,
AGREES FOR THE BENEFIT OF IRSA PROPIEDADES COMERCIALES S.A. THAT
NEITHER THIS NOTE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE
OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF
SUCH REGISTRATION UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, SUCH REGISTRATION.
THE
FOREGOING LEGEND MAY BE REMOVED FROM THIS NOTE AFTER FORTY (40)
CONSECUTIVE DAYS BEGINNING ON AND INCLUDING THE LATER OF (A) THE
DAY ON WHICH THE NOTES ARE OFFERED TO PERSONS OTHER THAN
DISTRIBUTORS (AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT)
AND (B) THE ORIGINAL ISSUE DATE OF THIS NOTE.]
8.750%
NOTES DUE 2023, SERIES NO. 2
SERIES:
No. 2
SPECIFIED
CURRENCY: U.S. dollars
PRINCIPAL
AMOUNT: US$[_________]
ORIGINAL
ISSUE DATE: [March 23, 2016]
STATED
MATURITY: March 23, 2023
OTHER
TERMS AND CONDITIONS: As set forth below and in the
Indenture
FIXED
RATE OF INTEREST: 8.750%
INTEREST
COMMENCEMENT DATE: [March 23, 2016]
INTEREST
PAYMENT DATE(S): March 23 and September 23
REGULAR
RECORDS DATE(S): March 22 and September 22 immediately preceding
the relevant Interest Payment Date (whether or not a Business
Day)
This
[Rule 144A] [Regulation S] Global Security (this
“Note”
and, together with any other Securities of the same Series as this
Note, the “Notes”) is issued
pursuant to the Indenture referred to herein.
Reference is hereby
made to the further provisions of this Note set forth on the
reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Copies
of the Indenture and this Global Security are on file and available
for inspection at the Corporate Trust Office of the Trustee and at
the office of the Registrar in the City of Buenos Aires and, if and
for so long as the Notes are listed on the Luxembourg Stock
Exchange for trading on the Euro MTF, and such Exchange shall so
require, at the office of the Paying Agent in Luxembourg, in each
case as specified in the Indenture. The Holder of this Note is
entitled to the benefit of, is bound by, and is deemed to have
notice of, all the provisions of the Indenture and the Notes
applicable to it. Terms used but not defined herein are used as
defined in the Indenture and the on the reverse of this
Note.
This
Note is a Global Security representing an issue of duly authorized
Securities of IRSA PC issued and to be issued in one or more Series
pursuant to the Indenture. This Note has been issued in the initial
principal amount shown above (as adjusted from time to time on
Schedule A hereto, the “Principal Amount”) and
with the Specified Currency, Issue Date, Stated Maturity,
redemption and other provisions specified herein and in the
Indenture, and bearing interest on such Principal Amount at the
rate of interest specified herein.
In the
event of any conflict between the provisions stated or incorporated
herein and the terms and conditions set forth in the Pricing
Supplement (as such term is defined in the First Supplemental
Indenture referred to herein), the terms and conditions in the
Pricing Supplement will prevail. Accordingly, in any such
circumstances this Note shall be deemed to have incorporated by
reference those terms and conditions set forth in the
Pricing Supplement.
IRSA
PC, for value received, hereby promises to pay Cede & Co. or
its registered assigns, the Principal Amount in the Specified
Currency at the Stated Maturity specified above, unless earlier
redeemed in accordance with the terms hereof, and to pay interest
from the Interest Commencement Date of this Note specified above
(or from the most recent date to which interest has been paid or
made available for payment) on the unpaid Principal Amount (and, to
the extent lawful, on overdue principal (including premium or
redemption amount, if any)) and any interest in respect hereof at
the Fixed Rate of Interest per annum specified above on the
Interest Payment Date or Dates specified above in each year,
commencing with the first such Interest Payment Date falling at
least fifteen (15) days after the Issue Date of this Note specified
above and at Stated Maturity or any Redemption Date, until the
principal hereof shall be paid or made available for
payment.
This
Note is one of the Series designated above, which term shall mean
each original issue of Notes and shall be deemed to include any
other Securities in respect of such Series issued pursuant to the
Indenture. The Notes, together with any other debt Securities of
IRSA PC issued under the Indenture are limited to an aggregate
principal amount outstanding at any one time of US$500,000,000 or
the equivalent thereof in one or more Specified Currencies;
provided,
however, that the
total amount of the Program and the maximum aggregate principal
amount of Securities of all Series that may be Outstanding at any
one time under the Indenture may be increased by a resolution of
the shareholders of IRSA PC and without the consent of the
Holders.
Unless
the certificate of authentication hereon has been executed by or on
behalf of the Trustee by manual signature of one of its authorized
signatures, this Note shall not be entitled to any benefit under
the Indenture or be valid or obligatory for any
purpose.
THIS
NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAW OF THE STATE OF NEW YORK; PROVIDED THAT ALL MATTERS
RELATING TO THE DUE AUTHORIZATION, EXECUTION, ISSUANCE AND DELIVERY
OF THE NOTES BY IRSA PC, AND MATTERS RELATING TO THE LEGAL
REQUIREMENTS NECESSARY IN ORDER FOR THE NOTES TO QUALIFY AS
“OBLIGACIONES NEGOCIABLES SIMPLES NO CONVERTIBLES”
UNDER ARGENTINE LAW, SHALL BE GOVERNED BY THE NEGOTIABLE
OBLIGATIONS LAW, TOGETHER WITH THE ARGENTINE COMPANIES LAW, THE
CAPITAL MARKETS LAW AND THE RULES OF THE CNV AND OTHER APPLICABLE
ARGENTINE LAWS AND REGULATIONS.
A-4
IN
WITNESS WHEREOF, IRSA PC has caused this Global Security to be duly
executed.
Dated:
March , 2016
By:
__________________________
Name:
Title:
By:
__________________________
Name:
Title:
A-4
TRUSTEE’S
CERTIFICATE OF AUTHENTICATION
This is
one of the Notes of the Series designated and referred to in the
within-mentioned Indenture, as such is supplemented by the
within-mentioned First Supplemental Indenture.
THE
BANK OF NEW YORK MELLON, as Trustee
By:
__________________________
Name:
Title:
Dated:
March [ ], 2016
A-4
[FORM OF REVERSE OF GLOBAL SECURITY]
TERMS AND CONDITIONS
General
The
Notes are issued as a Series of Securities under the Indenture,
dated as of March 23, 2016, among IRSA PC, The Bank of New York
Mellon, as trustee (in such capacity, the “Trustee”), co-registrar,
principal paying agent and transfer agent (in such capacity, a
“Transfer
Agent”, and together with any other transfer agents
under the Indenture, the “Transfer Agents”), and
Banco Santander Río S.A., as registrar (in such capacity, the
“Registrar”), Paying
Agent, Transfer agent and representative of the Trustee in
Argentina, as amended and supplemented by the First Supplemental
Indenture thereto, dated as of March 23, 216, among IRSA PC, the
Trustee, the Representative of the Trustee in Argentina and The
Bank of New York Mellon (Luxembourg) S.A., as paying agent and
transfer agent in Luxembourg (as amended or supplemented from time
to time, the “Indenture”). Capitalized
terms used herein are used as defined in the Indenture unless
otherwise indicated. The terms of the Notes include those stated in
the Indenture, and Holders are referred to the Indenture for a
statement of all such terms. To the extent permitted by applicable
law, in the event of inconsistency between the terms of this Note
and the terms of the Indenture, the terms of the Notes will
control.
The
following summaries of certain provisions of the Indenture and the
Notes do not purport to be complete and are subject to, and are
qualified in their entirety by reference to, all of the provisions
of the Indenture and the Notes, including the definitions therein
of certain terms. Capitalized terms not otherwise defined herein
shall have the meanings given to them in the
Indenture.
The
Notes will qualify as “obligaciones negociables simples no
convertibles” under the Negotiable Obligations Law and
will be entitled to the benefits set forth therein and subject to
the procedural requirements thereof. The Notes will rank pari passu
in right of payment with all other existing and future unsecured
and unsubordinated indebtedness of IRSA PC (other than obligations
preferred by statute or by operation of law).
Unless
previously redeemed, the Notes will mature on the date (the
“Stated
Maturity”) no less than thirty (30) days from their
date of issue as specified on the face hereof.
The
Notes shall be denominated in the currency (a “Specified Currency”) as
specified on the face hereof. Payments on the Notes will be made in
the Specified Currency.
The
Notes shall bear interest at a fixed rate (a “Fixed Rate Note”). See
“Interest Rate” below.
The
Notes will not be subject to any sinking fund and will not be
redeemable prior to their Stated Maturity, except as provided in
the Indenture.
IRSA PC
may from time to time, without the consent of Holders of Notes
outstanding, create and issue additional Notes of such Series
(“Additional
Notes”); provided such Additional Notes
have the same terms and conditions as the Notes of that Series
(except for the date of issue, the issue price, the applicable
legends, the date from which interest accrues and, if applicable,
the first payment of interest); and provided further that if the Additional
Notes are not fungible for U.S. federal income tax purposes with
the previously outstanding Notes of the relevant Series, such
Additional Notes shall have a separate CUSIP number. The Additional
Notes shall be consolidated with and form a single Series with the
previously outstanding Series of Notes.
Global
Securities are exchangeable in whole or in part for duly executed
and issued Certificated Securities in the form established pursuant
to the Indenture, with the applicable Restrictive Legends as marked
thereon, only if such exchange complies with Section 2.7 of the
Base Indenture. Interests in Global Securities are exchangeable or
transferable in whole or in part for interests in another Global
Security of the same Series, only if such exchange or transfer
complies with Section 2.10 of the Base Indenture.
Interest Rate
Each
Fixed Rate Note will bear interest from (and including) the issue
date (the “Interest
Commencement Date”) or from the most recent Interest
Payment Date to which interest on such Note has been paid or duly
provided for at the fixed rate per annum, until the principal
thereof is paid or made available for payment. Interest will be
payable on each Interest Payment Date and at Stated Maturity or
upon redemption or acceleration, as specified under “Payment
of Principal and Interest” below.
Fixed Rate Notes
Fixed
Rate Notes shall bear interest from (and including) the Interest
Commencement Date specified above at the rate or rates per annum so
specified (the “Fixed Rate(s) of
Interest”) payable in arrears on the Interest Payment
Date(s) in each year and on the Stated Maturity or upon redemption
or acceleration. The first payment of interest will be made on the
Interest Payment Date next following the Interest Commencement
Date.
Payment of Principal and Interest
Interest (and
principal, if any, payable other than at Stated Maturity or upon
acceleration or redemption) shall be payable in immediately
available funds to the Person in whose name a Security is
registered at the close of business on the Regular Record Date next
preceding each Interest Payment Date notwithstanding the
cancellation of such Securities upon any transfer or exchange
thereof subsequent to such Regular Record Date and prior to such
Interest Payment Date; provided that interest payable
at Stated Maturity or upon acceleration or redemption shall be
payable to the Person to whom principal will be payable; and
provided further,
that if and to the extent IRSA PC defaults in the payment of the
interest, including any Additional Amounts, due on such Interest
Payment Date, such defaulted interest, including any Additional
Amounts, shall be paid to the Person in whose names such Notes are
registered at the end of a subsequent record date established by
IRSA PC by notice given by or on behalf of IRSA PC to the Holders
of the Notes not less than fifteen (15) days preceding such special
record date, such record date to be not less than fifteen (15) days
preceding the date of payment in respect of such defaulted
interest. The first payment of interest on any Note originally
issued between a Regular Record Date and an Interest Payment Date
shall be made on the Interest Payment Date following the next
succeeding Regular Record Date to the registered owner at the close
of business on such next succeeding Regular Record Date. The
interest so payable, and punctually paid or made available for
payment, on any Interest Payment Date, will, as provided in the
Indenture, be paid, in immediately available funds, to the Person
in whose name this Note (or one or more Predecessor Securities) is
registered at the close of business on September 22 or March 22
(whether or not a Business Day, as defined in the Indenture), as
the case may be, next preceding such Interest Payment Date (the
“Regular Record
Date”).
Payment
of the principal of and any premium, interest, Additional Amounts
and other amounts on or in respect of any Note at Stated Maturity
or upon acceleration or redemption shall be made to the registered
Holder on such date in immediately available funds to the person in
whose name such note is registered upon surrender of such Note at
the Corporate Trust Office or at the specified office of any other
Paying Agent; provided that the Note is
presented to the Paying Agent in time for the Paying Agent to make
such payments in such funds in accordance with its normal
procedures. Payments of the principal of and any premium, interest,
Additional Amounts and other amounts on or in respect of the Notes
to be made other than at Stated Maturity or upon redemption shall
be made by check mailed on or before the due date for such payments
to the address of the Person entitled thereto as it appears in the
Register; provided
that (a) the Depositary, as Holder of Global Securities, shall be
entitled to receive payments of interest by wire transfer of
immediately available funds and (b) a Holder of at least
US$1,000,000 in aggregate principal or face amount of Securities
shall be entitled to receive payments of interest by wire transfer
of immediately available funds to an account maintained by such
Holder at a bank located in the United States as may have been
appropriately designated by such Holder to the Trustee in writing
no later than fifteen (15) days prior to the date such payment is
due. Unless such designation is revoked, any such designation made
by such Holder with respect to such Notes shall remain in effect
with respect to any future payments with respect to such Notes
payable to such Holder.
Payments of
interest on any Fixed Rate Note with respect to any Interest
Payment Date will include interest accrued to but excluding such
Interest Payment Date.
Interest on Fixed
Rate Notes will be calculated on the basis of a 360-day year
consisting of twelve 30-day months.
If the
Stated Maturity for any Fixed Rate Note or the Interest Payment
Date for any Fixed Rate Note falls on a day which is not a Business
Day, payment of principal (and premium, if any) and interest with
respect to such Note will be made on the next succeeding Business
Day with the same force and effect as if made on the due date and
no interest on such payment will accrue from and after such due
date.
A-4
SCHEDULE
A
|
Date
|
Principal
Amount of Certificated Securities or other Global Securities issued
in exchange for or upon transfer of an interest in this Global
Security
|
Principal
Amount of this Global Security Redeemed or Repurchased
|
Increase
in Principal Amount of this Global Security due to the exchange or
transfer of another Global Security (or an interest therein) for an
interest in this Global Security
|
Remaining
Principal Amount of this Global Security
|
Notation
made on behalf of the Trustee by
|
|
|
|
|
|
|
|
FORM OF
TRANSFER
[Include the
following for Notes bearing Restrictive Legends]
TRANSFER
NOTICE
FOR
VALUE RECEIVED, the undersigned Holder hereby sells, assigns and
transfers unto
(Please
print or typewrite name and address including postal code of
assignee)
Insert
Taxpayer Identification No.:
this
Note and all rights thereunder, hereby irrevocably constituting and
appointing
attorney
to transfer such amount of said Note on the books of IRSA PC with
full power of substitution in the premises.
In
connection with any transfer of this Note occurring prior to the
date that is one year after the Original Issue Date of this Note
(provided that IRSA PC or any affiliate of IRSA PC has not acquired
this Note during such one-year period), the undersigned confirms
that without utilizing any general advertising or general
solicitation:
(check
one)
☒ This
Note is being transferred pursuant to the exception from
registration under the U.S. Securities Act of 1933, as amended (the
“Securities
Act”), provided by Rule 144A thereunder
(“Rule
144A”) and, upon registration of such transfer, each
beneficial owner of this Note will be a “qualified
institutional buyer” (as defined in Rule 144A), and each such
person has been advised that this Note is being sold or transferred
to it in reliance upon Rule 144A and has received the information,
if any, requested by it pursuant to Rule 144A; or
<>ÎýáC¨l°NÛèÖÆ ÒY9
‚ã'
¨„³y
ªçüFš?RÍ5☒ This
Note is being transferred pursuant to the exemption from
registration under the Securities Act provided by Regulation S
under the Securities Act (“Regulation S”), and the
address of the person in whose name this Note is to be registered
upon transfer is an address outside the United States (as defined
in Regulation S); or
☒ This
Note is being transferred to a Dealer or to IRSA PC;
or
☒ This
Note is being transferred other than in accordance with (a), (b) or
(c) above, and documents are being furnished to the Trustee or the
Transfer Agent which comply with the conditions of transfer set
forth in this Note and the Indenture.
If none
of the foregoing boxes is checked, the Trustee shall not be
obligated to register this Note in the name of any person other
than the Holder hereof unless and until the conditions to any such
registration of transfer set forth herein and in the Indenture
shall have been satisfied.
Date:
Signed:
______________________________________
NOTICE:
The signature to this assignment
must
correspond with the name as written
upon
the face of the within instrument in
every
particular, without alteration or
enlargement or any
change whatsoever.
