Exhibit 2.9
Grupo TMM, S.A.,
as Issuer
The Guarantors Named Herein,
as Guarantors
and
Indenture
Dated as of August 11, 2004
Senior Secured Notes due 2007
TABLE OF CONTENTS
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Page |
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ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION |
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1 |
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SECTION 1.01 |
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DEFINITIONS |
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1 |
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SECTION 1.02 |
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COMPLIANCE CERTIFICATES AND OPINIONS |
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25 |
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SECTION 1.03 |
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FORM OF DOCUMENTS DELIVERED TO TRUSTEE |
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26 |
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SECTION 1.04 |
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NOTICES, ETC. TO TRUSTEE AND COMPANY |
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27 |
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SECTION 1.05 |
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NOTICE TO HOLDERS; WAIVER |
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27 |
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SECTION 1.06 |
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CONFLICT WITH TRUST INDENTURE ACT |
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28 |
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SECTION 1.07 |
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EFFECT OF HEADINGS AND TABLE OF CONTENTS |
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28 |
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SECTION 1.08 |
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SUCCESSORS AND ASSIGNS |
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28 |
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SECTION 1.09 |
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SEPARABILITY CLAUSE |
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28 |
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SECTION 1.10 |
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BENEFITS OF INDENTURE |
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28 |
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SECTION 1.11 |
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GOVERNING LAW |
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28 |
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SECTION 1.12 |
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SUBMISSION TO JURISDICTION |
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28 |
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SECTION 1.13 |
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LEGAL HOLIDAYS |
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29 |
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SECTION 1.14 |
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APPOINTMENT OF AGENT FOR SERVICE |
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29 |
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SECTION 1.15 |
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COUNTERPART ORIGINALS |
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29 |
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ARTICLE TWO NOTE FORMS |
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29 |
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SECTION 2.01 |
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FORMS GENERALLY |
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29 |
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SECTION 2.02 |
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FORM OF FACE OF NOTE |
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31 |
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SECTION 2.03 |
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FORM OF REVERSE OF NOTE |
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35 |
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SECTION 2.04 |
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FORM OF GUARANTEE |
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43 |
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SECTION 2.05 |
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FORM OF TRUSTEE’S CERTIFICATE OF AUTHENTICATION |
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45 |
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SECTION 2.06 |
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REMOVAL OF PRIVATE PLACEMENT LEGEND |
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45 |
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ARTICLE THREE THE NOTES |
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47 |
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SECTION 3.01 |
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TITLE AND TERMS |
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47 |
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SECTION 3.02 |
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DENOMINATIONS; PAYMENT CURRENCY |
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51 |
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SECTION 3.03 |
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EXECUTION, AUTHENTICATION, DELIVERY AND DATING |
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51 |
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SECTION 3.04 |
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TEMPORARY NOTES |
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51 |
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SECTION 3.05 |
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NOTE REGISTRAR AND PAYING AGENT |
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52 |
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SECTION 3.06 |
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PAYING AGENT TO HOLD MONEY IN TRUST |
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52 |
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SECTION 3.07 |
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HOLDER LISTS |
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53 |
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SECTION 3.08 |
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TRANSFER AND EXCHANGE |
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53 |
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SECTION 3.09 |
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MUTILATED, DESTROYED, LOST AND STOLEN NOTES |
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59 |
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SECTION 3.10 |
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PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED |
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59 |
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SECTION 3.11 |
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PERSONS DEEMED OWNERS |
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60 |
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Page |
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SECTION 3.12 |
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CANCELLATION |
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61 |
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SECTION 3.13 |
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COMPUTATION OF INTEREST |
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61 |
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SECTION 3.14 |
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RANKING; SUBORDINATION |
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61 |
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SECTION 3.15 |
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CUSIP NUMBERS |
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61 |
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ARTICLE FOUR REDEMPTION OF NOTES |
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61 |
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SECTION 4.01 |
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APPLICABILITY OF ARTICLE |
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61 |
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SECTION 4.02 |
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RIGHT OF REDEMPTION |
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61 |
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SECTION 4.03 |
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ELECTION TO REDEEM; NOTICE TO TRUSTEE |
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62 |
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SECTION 4.04 |
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SELECTION BY TRUSTEE OF NOTES TO BE REDEEMED |
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62 |
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SECTION 4.05 |
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NOTICE OF REDEMPTION |
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62 |
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SECTION 4.06 |
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DEPOSIT OF REDEMPTION PRICE |
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63 |
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SECTION 4.07 |
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NOTES PAYABLE ON REDEMPTION DATE |
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63 |
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SECTION 4.08 |
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NOTES REDEEMED IN PART |
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64 |
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SECTION 4.09 |
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OPTIONAL REDEMPTION DUE TO CHANGES IN TAX TREATMENT |
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64 |
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ARTICLE FIVE COVENANTS |
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64 |
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SECTION 5.01 |
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PAYMENTS OF PRINCIPAL, PREMIUM, IF ANY, AND INTEREST |
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64 |
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SECTION 5.02 |
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MAINTENANCE OF OFFICE OR AGENCY |
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65 |
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SECTION 5.03 |
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MONEY FOR NOTE PAYMENTS TO BE HELD IN TRUST |
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65 |
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SECTION 5.04 |
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EXISTENCE |
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66 |
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SECTION 5.05 |
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MAINTENANCE OF PROPERTIES; INSURANCE |
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66 |
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SECTION 5.06 |
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PAYMENT OF TAXES |
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67 |
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SECTION 5.07 |
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ANNUAL OFFICERS’ CERTIFICATE TO TRUSTEE |
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67 |
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SECTION 5.08 |
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REPORTS TO BE FURNISHED TO TRUSTEE AND HOLDERS |
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67 |
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SECTION 5.09 |
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FURTHER ASSURANCES |
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68 |
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SECTION 5.10 |
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COMPANY TO FURNISH TRUSTEE INFORMATION AS TO NAMES AND ADDRESSES OF HOLDERS |
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68 |
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SECTION 5.11 |
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WAIVER OF STAY, EXTENSION OR USURY LAWS |
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69 |
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SECTION 5.12 |
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LIMITATION ON RESTRICTED PAYMENTS |
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69 |
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SECTION 5.13 |
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LIMITATION ON TRANSACTIONS WITH AFFILIATES |
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71 |
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SECTION 5.14 |
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LIMITATION ON INDEBTEDNESS |
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71 |
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SECTION 5.15 |
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LIMITATION ON DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING RESTRICTED SUBSIDIARIES |
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74 |
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SECTION 5.16 |
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CHANGE OF CONTROL |
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75 |
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SECTION 5.17 |
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LIMITATION ON LIENS |
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77 |
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SECTION 5.18 |
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RESTRICTION ON ASSET DISPOSITIONS AND QUALIFYING DISPOSITIONS; APPLICATION OF VAT PROCEEDS |
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78 |
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SECTION 5.19 |
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LIMITATION ON SALE AND LEASEBACK TRANSACTIONS |
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81 |
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ii
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Page |
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SECTION 5.20 |
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LIMITATION ON INVESTMENTS |
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82 |
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SECTION 5.21 |
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LIMITATION ON BUSINESS ACTIVITIES |
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82 |
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SECTION 5.22 |
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PAYMENTS FOR CONSENT |
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82 |
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SECTION 5.23 |
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ADDITIONAL GUARANTEES; LIMITATION ON ISSUANCES OF GUARANTEES BY RESTRICTED SUBSIDIARIES |
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82 |
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SECTION 5.24 |
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RESTRICTION ON INVESTMENT ACTIVITY |
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83 |
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ARTICLE SIX REMEDIES |
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84 |
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SECTION 6.01 |
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EVENTS OF DEFAULT |
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84 |
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SECTION 6.02 |
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DEFAULT RATE OF INTEREST |
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87 |
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SECTION 6.03 |
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ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT |
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87 |
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SECTION 6.04 |
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COLLECTION OF INDEBTEDNESS BY TRUSTEE; TRUSTEE MAY PROVE DEBT |
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88 |
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SECTION 6.05 |
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TRUSTEE MAY FILE PROOFS OF CLAIM |
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89 |
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SECTION 6.06 |
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TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF NOTES |
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90 |
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SECTION 6.07 |
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APPLICATION OF MONEY OR PROPERTY COLLECTED |
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90 |
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SECTION 6.08 |
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LIMITATION ON SUITS |
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91 |
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SECTION 6.09 |
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RIGHTS OF HOLDERS OF NOTES TO RECEIVE PAYMENT |
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91 |
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SECTION 6.10 |
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RESTORATION OF RIGHTS AND REMEDIES |
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92 |
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SECTION 6.11 |
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RIGHTS AND REMEDIES CUMULATIVE |
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92 |
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SECTION 6.12 |
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DELAY OR OMISSION NOT WAIVER |
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92 |
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SECTION 6.13 |
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CONTROL BY HOLDERS |
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92 |
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SECTION 6.14 |
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WAIVER OF PAST DEFAULTS |
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93 |
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ARTICLE SEVEN CONCERNING THE TRUSTEE |
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93 |
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SECTION 7.01 |
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DUTIES OF TRUSTEE |
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93 |
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SECTION 7.02 |
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CERTAIN RIGHTS OF TRUSTEE |
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94 |
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SECTION 7.03 |
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TRUSTEE NOT
RESPONSIBLE FOR RECITALS, ETC. |
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95 |
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SECTION 7.04 |
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TRUSTEE AND OTHERS MAY HOLD NOTES |
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96 |
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SECTION 7.05 |
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MONEYS HELD BY TRUSTEE OR PAYING AGENT |
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96 |
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SECTION 7.06 |
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COMPENSATION OF TRUSTEE AND ITS LIEN |
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96 |
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SECTION 7.07 |
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RIGHT OF TRUSTEE TO RELY ON CERTIFICATE OF CERTAIN OFFICERS |
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97 |
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SECTION 7.08 |
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PERSONS ELIGIBLE FOR APPOINTMENT AS TRUSTEE |
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97 |
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SECTION 7.09 |
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RESIGNATION AND REMOVAL OF TRUSTEE; APPOINTMENT OF SUCCESSOR |
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98 |
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SECTION 7.10 |
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ACCEPTANCE OF APPOINTMENT BY SUCCESSOR TRUSTEE |
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99 |
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SECTION 7.11 |
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MERGER, CONVERSION OR CONSOLIDATION OF TRUSTEE |
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99 |
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SECTION 7.12 |
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AUTHENTICATING AGENTS |
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100 |
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SECTION 7.13 |
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REPORTS BY TRUSTEE |
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102 |
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iii
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Page |
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SECTION 7.14 |
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TRUSTEE RISK |
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102 |
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SECTION 7.15 |
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NOTICE OF DEFAULT |
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102 |
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SECTION 7.16 |
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PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE COMPANY |
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102 |
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SECTION 7.17 |
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TRUSTEE’S APPLICATION FOR INSTRUCTIONS FROM THE COMPANY |
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102 |
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SECTION 7.18 |
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LIMITATION OF LIABILITY |
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102 |
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ARTICLE EIGHT CONCERNING THE HOLDERS |
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103 |
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SECTION 8.01 |
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EVIDENCE OF ACTION TAKEN BY HOLDERS |
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103 |
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SECTION 8.02 |
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PROOF OF EXECUTION OF INSTRUMENTS AND OF HOLDING OF NOTES |
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103 |
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SECTION 8.03 |
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RIGHT OF REVOCATION OF ACTION TAKEN |
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104 |
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ARTICLE NINE HOLDERS’ MEETINGS |
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105 |
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SECTION 9.01 |
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PURPOSES FOR WHICH HOLDERS’ MEETINGS MAY BE CALLED |
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105 |
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SECTION 9.02 |
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CALL OF MEETINGS BY TRUSTEE |
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105 |
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SECTION 9.03 |
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COMPANY AND HOLDERS MAY CALL MEETING |
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105 |
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SECTION 9.04 |
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PERSONS ENTITLED TO VOTE AT MEETING |
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105 |
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SECTION 9.05 |
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DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT OF MEETING |
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106 |
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SECTION 9.06 |
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COUNTING VOTES AND RECORDING ACTION OF MEETING |
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106 |
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ARTICLE TEN SUPPLEMENTAL INDENTURES AND AMENDMENT OF COLLATERAL DOCUMENTS |
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107 |
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SECTION 10.01 |
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SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS |
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107 |
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SECTION 10.02 |
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SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS |
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108 |
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SECTION 10.03 |
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EXECUTION OF SUPPLEMENTAL INDENTURES |
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109 |
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SECTION 10.04 |
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EFFECT OF SUPPLEMENTAL INDENTURES |
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109 |
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SECTION 10.05 |
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CONFORMITY WITH TRUST INDENTURE ACT |
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109 |
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SECTION 10.06 |
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REFERENCE IN NOTES TO SUPPLEMENTAL INDENTURES |
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110 |
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ARTICLE ELEVEN SUCCESSOR CORPORATION |
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110 |
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SECTION 11.01 |
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WHEN COMPANY
MAY MERGE, ETC. |
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110 |
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SECTION 11.02 |
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SUCCESSOR CORPORATION |
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111 |
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ARTICLE TWELVE SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS |
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111 |
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SECTION 12.01 |
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TERMINATION OF COMPANY’S OBLIGATIONS |
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111 |
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SECTION 12.02 |
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APPLICATION OF TRUST MONEY |
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114 |
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SECTION 12.03 |
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REPAYMENT TO COMPANY |
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114 |
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SECTION 12.04 |
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REINSTATEMENT |
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114 |
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iv
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Page |
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ARTICLE THIRTEEN IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS |
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114 |
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SECTION 13.01 |
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PERSONAL
IMMUNITY FROM LIABILITY OF INCORPORATORS, STOCKHOLDERS, ETC. |
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114 |
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ARTICLE FOURTEEN GUARANTEE |
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115 |
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SECTION 14.01 |
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GUARANTEE |
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000 |
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XXXXXXX 00.00 |
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XXXXXXXXXX XX GUARANTOR LIABILITY |
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118 |
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SECTION 14.03 |
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SUCCESSORS AND ASSIGNS |
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118 |
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SECTION 14.04 |
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NO WAIVER |
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118 |
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SECTION 14.05 |
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EXECUTION AND DELIVERY OF GUARANTEE |
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118 |
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SECTION 14.06 |
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GUARANTORS MAY CONSOLIDATE, ETC., ON CERTAIN TERMS |
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119 |
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SECTION 14.07 |
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RELEASES FOLLOWING SALE OF ASSETS OR CAPITAL STOCK |
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119 |
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SECTION 14.08 |
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APPLICATION OF CERTAIN TERMS AND PROVISIONS TO THE GUARANTORS |
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119 |
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ARTICLE FIFTEEN |
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120 |
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SECTION 15.01 |
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COLLATERAL; COLLATERAL DOCUMENTS |
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120 |
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SECTION 15.02 |
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VOTING RIGHTS AND PAYMENT OF DIVIDENDS AND DISTRIBUTIONS IN RESPECT OF COLLATERAL |
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122 |
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SECTION 15.03 |
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RELEASE OF COLLATERAL |
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122 |
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SECTION 15.04 |
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REMEDIES UPON ACCELERATION |
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124 |
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SECTION 15.05 |
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FURTHER ASSURANCES AND SECURITY |
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124 |
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SECTION 15.06 |
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OPINIONS AS TO RECORDING |
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125 |
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SECTION 15.07 |
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LIMITATION ON DUTY OF TRUSTEE IN RESPECT OF THE COLLATERAL PLEDGE |
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125 |
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SECTION 15.08 |
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AUTHORIZATION OF ACTIONS TO BE TAKEN BY COLLATERAL AGENT UNDER THE COLLATERAL DOCUMENTS |
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126 |
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SECTION 15.09 |
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AUTHORIZATION OF RECEIPT OF FUNDS BY THE TRUSTEE UNDER THE COLLATERAL DOCUMENTS |
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126 |
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SECTION 15.10 |
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ASSIGNMENT OF RIGHTS, NOT ASSUMPTION OF DUTIES |
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127 |
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v
CROSS-REFERENCE TABLE*
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Trust Indenture Act Sections |
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Indenture Section |
310 |
|
7.08 |
310(a) |
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7.11 |
310(a)(1) |
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7.08 |
(a)(2) |
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7.08 |
(a)(3) |
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N.A. |
(a)(4) |
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N.A. |
(a)(5) |
|
N.A |
(b) |
|
7.08 |
310(b)(1) |
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7.08 |
(c) |
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N.A. |
311(a) |
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7.16 |
(b) |
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7.16 |
(c) |
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N.A. |
312(a) |
|
3.07 |
(b) |
|
N.A |
(c) |
|
N.A |
313 |
|
7.13 |
313(a) |
|
N.A. |
(b) |
|
N.A. |
(c) |
|
7.15 |
(d) |
|
N.A |
314(a) |
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N.A. |
314(a)(4) |
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5.07 |
vi
|
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Trust Indenture Act Sections |
|
Indenture Section |
(b) |
|
15.06 |
(c) |
|
15.06 |
(d) |
|
15.03, 15.06 |
(e) |
|
15.06 |
(f) |
|
N.A. |
315 |
|
7.02, 7.07, 8.02 |
315(a) |
|
N.A. |
(b) |
|
N.A. |
(c) |
|
7.01(a) |
(d) |
|
N.A. |
(e) |
|
7.09 |
316(a) |
|
N.A. |
(b) |
|
N.A. |
(c) |
|
8.02 |
317(a) |
|
6.04 |
(b) |
|
N.A. |
318(a) |
|
N.A. |
(b) |
|
N.A. |
(c) |
|
N.A. |
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N.A. means not applicable |
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* |
|
This Cross-Reference table shall not, for any purpose, be deemed to be part
of the Indenture |
vii
Indenture, dated as of August 11, 2004, by and among
Grupo TMM, S.A., a
corporation duly organized and existing under the laws of the United Mexican States (herein called
the “
Company”), having its principal business office at Xxxxxxx xx xx Xxxxxxx, Xx. 0000,
Xxxxxxx Xxxxxxx xxx Xxxxxxxx, 00000 Xxxxxx, D.F.,
TMM Holdings, S.A. de C.V., a
corporation duly organized and existing under the laws of the United Mexican States (herein called
“
TMM Holdings”), each of the other Wholly Owned Subsidiaries of the Company that are listed
on Schedule A hereto as being a guarantor (TMM Holdings and each such other Wholly Owned
Subsidiary, together with any other Subsidiary of the Company that hereafter becomes a Guarantor in
accordance with the terms of this Indenture, are collectively referred to herein as the
“
Guarantors”), having their principal business office at Xxxxxxx xx xx Xxxxxxx, Xx. 0000,
Xxxxxxx Xxxxxxx xxx Xxxxxxxx, 00000 Xxxxxx, D.F., and
The Bank of New York, a
New York
banking corporation, as Trustee (herein called the “
Trustee”), having its principal trust
office at 000 Xxxxxxx Xxxxxx, Xxxxx 00X, Xxx Xxxx, Xxx Xxxx 00000, Attention: Global Finance Unit.
The Company has duly authorized the creation of an issue of Senior Secured Notes due 2007,
such Notes to be issued initially (i) in connection with the exchange (the “
Exchange
Offer”) of certain 9
1/
2% Notes due 2003 (the “
2003 Notes”) issued by the Company pursuant
to an indenture dated as of May 12, 1993 (as amended and supplemented, the “
2003 Note
Indenture”) and of certain 10
1/
4% Senior Notes due 2006 (the “
2006 Notes” and, together
with the 2003 Notes, the “
Existing Notes”) issued by the Company pursuant to an indenture
dated as of January 25, 2001 (as amended and supplemented, the “
2006 Note Indenture”, and
together with the 2003 Note Indenture, the “
Existing Indentures”), (ii) to Promotora Servia
in payment of the Existing Servia Payable, (iii) to the X.X. Xxxx Parties pursuant to the X.X. Xxxx
Letter Agreement in payment of the obligations of the Company under the X.X. Xxxx Note, and (iv) to
the Purchasers pursuant to the Note Purchase Agreement, and to provide therefor, the Company has
duly authorized the execution and delivery of this Indenture. All things necessary to make the
Notes, when duly issued and executed by the Company, and authenticated and delivered hereunder, the
valid obligations of the Company and the Guarantors, and to make this Indenture a valid and binding
agreement of the Company and the Guarantors, have been done.
Each Holder (including subsequent transferees) of an Initial Private Note will have the
registration rights set forth in the Registration Rights Agreement.
Each party agrees as follows for the benefit of each other and for the equal and ratable
benefit of the Holders (as defined herein) of the Company’s Senior Secured Notes due 2007 (the
“Notes”).
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01 DEFINITIONS. For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to them in this Article and
include the plural as well as the singular;
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(2) all other terms used herein which are defined in the Trust Indenture Act (as hereinafter
defined), either directly or by reference therein, have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the meanings assigned to them in
accordance with IAS (as hereinafter defined);
(4) the words “herein,” “hereof” and “hereunder” and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or other subdivision;
(5) “or” is not exclusive;
(6) provisions apply to successive events and transactions;
(7) unless the context otherwise requires, any reference to a “clause,” an “Article” or a
“Section”, or to an “Exhibit” or a “Schedule”, refers to a clause, an Article or Section of, or to
an Exhibit or a Schedule attached to, this Indenture, as the case may be;
(9) unless the context otherwise requires, any reference to a statute, rule or regulation
refers to the same (including any successor statute, rule or regulation thereto) as it may be
amended from time to time;
(10) the principal amount of any non-interest bearing or other discount security at any date
shall be the principal amount thereof that would be shown on a balance sheet of the issuer dated
such date prepared in accordance with IAS; and
(11) the term “including” is not limiting and means “including, without limitation,” and
“including but not limited to.”
“Acquired Indebtedness” means Indebtedness of a Person existing at the time such
Person becomes a Restricted Subsidiary or assumed in connection with the acquisition of assets from
such Person and not incurred in connection with, or in contemplation of, such Person becoming a
Restricted Subsidiary or such acquisition.
“Additional Amounts” shall have the meaning assigned to such term in Section 2.03.
“Additional Notes” means any Notes issued by the Company in payment of any portion of
the interest due on Outstanding Notes pursuant to Section 3.01(c).
“Adjusted Net Assets” of a Guarantor at any date means the amount by which the fair
value of the assets and property of such Guarantor exceeds the total amount of liabilities,
including, without limitation, contingent liabilities (after giving effect to all other fixed and
contingent liabilities incurred or assumed on such date), but excluding liabilities under any
Guarantee, of such Guarantor at such date.
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“ADRs” means the American Depositary Receipts evidencing ADSs issued pursuant to the
Deposit Agreement, dated December 26, 2001, among the Company, Citibank, N.A., as depositary, and
certain owners of ADSs.
“ADSs” means American depositary shares of the Company, each of which represents one
CPO issued by the Company and held by the CPO Trustee.
“Affiliate” of any specified Person means any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with such specified Person.
For the purposes of this definition, “control” when used with respect to any specified Person
means the power to direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise; and the terms
“controlling” and “controlled” have meanings correlative to the foregoing.
“Affiliate Transaction” shall have the meaning assigned to such term in Section 5.13.
“Agent” means any Note Registrar, Paying Agent or co-registrar.
“Agreed Discount Rate” means, with respect to any Indebtedness to be Incurred pursuant
to Section 5.14(b)(vii)(C) or
Section 5.14(b)(ix), the effective annual interest rate (taking into
account any discount on the issuance of such Indebtedness and any payments made in respect of such
Indebtedness) on the Indebtedness to be Incurred.
“Applicable Procedures” means, with respect to any transfer or exchange of or for
beneficial interests in any Global Note, the rules and procedures of the Depositary, Euroclear and
Clearstream that apply to such transfer or exchange.
“Asset Disposition” means any sale, lease, conveyance, transfer or other disposition
(or series of related sales, leases, conveyances, transfers or dispositions) by the Company or any
Restricted Subsidiary of (x) any Capital Stock of a Restricted Subsidiary of the Company (whether
or not upon issuance), or (y) any other property or assets (each referred to for the purposes of
this Indenture as a “disposition”) whether for cash or other consideration, other than (i)
a disposition by a Restricted Subsidiary of the Company to the Company or to a Wholly Owned
Subsidiary of the Company, (ii) a disposition by the Company to a Wholly Owned Subsidiary of the
Company, (iii) a disposition by a Restricted Subsidiary to a Wholly Owned Subsidiary of such
Restricted Subsidiary, (iv) the disposition in any single transaction or series of transactions of
any assets or Capital Stock or other ownership interest in the ordinary course of business by the
Company or its Restricted Subsidiaries if the gross proceeds thereof do not exceed $500,000 (such
proceeds, to the extent not in cash, to be determined in good faith by the Board of Directors) in
any 12-month period, (v) an exchange of assets, provided the assets received are to be used in the
lines of business engaged in by the Company or any of its Restricted Subsidiaries on the Initial
Issuance Date or reasonably related extensions of such lines of business, (vi) a Qualifying
Disposition or other disposition that is governed by Article Eleven, (vii) a disposition of assets
in one or a series of related transactions which are no longer used or, in the reasonable opinion
of the Company (which, in the case of each disposition for gross proceeds in excess of $500,000
will be evidenced by a Board Resolution as set forth in an
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Officers’ Certificate delivered to the Trustee) useful in the business of the Company or any
Restricted Subsidiary, provided the aggregate gross proceeds of all such dispositions of assets
pursuant to this clause (vii) do not exceed $10 million, or (viii) a disposition pursuant to a
Qualifying PEMEX Securitization Transaction; provided, in the case of any disposition pursuant to
clauses (i), (ii) or (iii) by the Company or by any Restricted Subsidiary that is a Guarantor, that
the Wholly Owned Subsidiary receiving such assets which was not previously a Guarantor executes and
delivers a supplemental indenture providing for a Guarantee of the Notes as provided in Section
5.23 or Article Fourteen.
“Associate” shall have the meaning assigned to such term in Rule 12b-2 of the rules
and regulations of the Commission promulgated under the Exchange Act.
“Attributable Debt” means, with respect to a sale and leaseback transaction, as at the
time of determination, the greater of (i) the fair market value of the property subject to such
sale and leaseback transaction (as set forth in a Board Resolution) and (ii) the present value
(discounted at the interest rate borne by the Notes (assuming the Company pays the minimum cash
required to be paid thereon), compounded annually) of the total obligations of the lessee for
rental payments during the remaining term of the lease included in such sale and leaseback
transaction (including any period for which such lease has been extended).
“Authenticating Agent” means any agent of the Trustee which at any time shall be
appointed and acting pursuant to the provisions of Section 7.12.
“Average Life” means as of the date of determination, with respect to any debt
security, the quotient obtained by dividing (i) the sum of the products of the number of years
(calculated to the nearest one-twelfth) that will elapse from the date of determination to the
dates of each then remaining installment, sinking fund or other required scheduled principal
payment of such debt security multiplied by the amount of each such principal payment by (ii) the
sum of all such principal payments.
“Bankruptcy Law” shall have the meaning assigned to such term in Section 6.01(7).
“Benefited Party” shall have the meaning assigned to such term in Section 14.01.
“Board of Directors” means the Board of Directors of any Person, or any duly
authorized committee of such Board or any officers of such Person duly authorized so to act by such
Board; provided, that if the transaction giving rise to the need for action by the Board of
Directors of such Person, together with any related transactions, involve aggregate value or
consideration in excess of $10 million, “Board of Directors” means the entire Board of Directors of
such Person and not a committee of such Person or an officer of such Board; provided, further, that
any action required to be taken by the Board of Directors of the Company or any of its Restricted
Subsidiaries with respect to the sale or sale and leaseback of any individual vessel may be taken
by the Executive Committee of such Board of Directors.
“Board Resolution” means a copy of a resolution or resolutions certified by the
Secretary or an Assistant Secretary of any Person to have been duly adopted by the Board of
Directors, or by the Executive Committee of the Board of Directors or any other committee of
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such Person to the extent that such other committee has been authorized by the Board of
Directors to adopt a “Board Resolution” for purposes hereof, and to be in full force and effect on
the date of such certification, or a certificate executed by officers of such Person to the extent
that such officers have been authorized to act for purposes hereof setting forth the action taken
by such officers and stating that the officers are duly authorized to take such action, in each
case as filed with the corporate records of such Person.
“
Business Day” means each Monday, Tuesday, Wednesday, Thursday and Friday which is not
a day on which banking institutions in
New York,
New York are authorized or obligated by or
pursuant to law, regulation or executive order to close.
“Capitalized Lease Obligation” of any Person means any obligation of such Person to
pay rent or other amounts under a lease of (or other agreement conveying the right to use) real or
personal property that is required to be classified and accounted for as a capital lease obligation
on a balance sheet of such Person under IAS and, for purposes of this Indenture, the amount of such
obligation at any date shall be the capitalized amount thereof at such date, determined in
accordance with IAS. For purposes of this definition, with respect to the Company, “Person” shall
mean the Company or any Restricted Subsidiary, as the case may be.
“Capital Stock” of any Person means any and all shares, interests, participations or
other equivalents (however designated) of such Person’s capital stock and warrants, options and
similar rights to acquire such capital stock (other than debt securities convertible or
exchangeable for such capital stock).
“Cash Equivalents” means (i) any evidence of indebtedness, maturing not more than one
year after the date of purchase, issued or fully guaranteed or insured by the United Mexican
States, the United States of America, or an instrumentality or agency thereof, (ii) any certificate
of deposit, Eurodollar time deposit, overnight bank deposit or bankers’ acceptance maturing not
more than one year after the date of purchase, issued by, or time deposit of, a commercial banking
institution which has combined capital and surplus and undivided profits of not less than
$100,000,000, (iii) commercial paper, maturing not more than 180 days after the date of purchase,
issued by a corporation (other than an Affiliate of the Company) organized and existing under the
laws of the United Mexican States or the United States of America or any State thereof or the
District of Columbia which is rated, at the time as of which any investment therein is made, “P-1”
(or higher) by Moody’s or “A-l” (or higher) by Standard & Poor’s,
(iv) money market funds and (v) deposits with financial institutions available for withdrawal
on demand.
“Cash Interest Rate” shall have the meaning assigned to such term in Section
3.01(c)(i).
“Change of Control” shall have the meaning assigned to such term in Section 5.16.
“Clearstream” means Clearstream Banking, société anonyme.
“CNBV” means the Comisión Nacional Bancaria y de Valores of the United Mexican States,
or any successor Person under applicable law.
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“Collateral” shall have the meaning assigned to such term in Section 15.01.
“Collateral Agent” means the beneficiary, depositary, collateral agent or Person
acting in a similar capacity, as the case may be, under the Collateral Documents, until a successor
beneficiary, depositary, collateral agent or Person acting in a similar capacity, as the case may
be, shall have become such pursuant to the Collateral Documents, and thereafter “Collateral
Agent” shall mean such successor beneficiary, depositary, collateral agent or Person acting in
a similar capacity, as the case may be. Unless otherwise required by applicable law, the
Collateral Agent shall initially be the Trustee.
“Collateral Documents” means, collectively, (i) the Irrevocable Administration and
Guaranty Trust Agreement No. F/00088 dated as of the Initial Issuance Date, among TMM Multimodal
and Inmobiliaria TMM, S.A. de C.V., as settlors, the Trustee, as first beneficiary, and Banco X.X.
Xxxxxx, S.A., Institución de Banca Múltiple, XX Xxxxxx Grupo Financiero (“XX Xxxxxx Bank”),
as collateral agent and guaranty trustee, relating to the Capital Stock of TMM Multimodal (the
“TMM Multimodal Trust Agreement”), (ii) the Irrevocable Administration and Guaranty Trust
Agreement No. F/00087 dated as of the Initial Issuance Date, among the Company, the other settlors
named therein, the Trustee, as first beneficiary, and XX Xxxxxx Bank, as collateral agent and
guaranty trustee, relating to the Capital Stock of Subsidiaries of the Company and of the
Guarantors and other assets, (iii) the Mexican Pledge Agreement Without Transfer of Possession
dated as of the Initial Issuance Date, among the Company, the other pledgors named therein, the
Trustee, as pledgee, and XX Xxxxxx Bank, as collateral agent and pledge trustee, (iv) the
Collateral Agency Agreement dated as of the Initial Issuance Date among the Company, the Trustee
and XX Xxxxxx Bank and (v) any other security agreements, trusts or other arrangements from time to
time providing for the pledge of or other grant of a Lien with respect to Collateral to secure the
Notes, the Guarantees, this Indenture and the Collateral Documents, by and among the Company, the
Guarantors, the Trustee and the Collateral Agents, as applicable, in each case as same may be
amended, modified and/or supplemented and in effect from time to time.
“Collateral Pledge” means the pledge of or other grant of a Lien with respect to
Collateral pursuant to this Indenture and the Collateral Documents to secure the obligations of the
Company and the Guarantors under the Notes, the Guarantees, this Indenture and the Collateral
Documents.
“Commission” means the Securities and Exchange Commission, as from time to time
constituted, created under the Exchange Act or, if at any time after the execution of this
instrument such Commission is not existing and performing the duties now assigned to it under the
Trust Indenture Act, then the body performing such duties at such time.
“Company” means the Person named as the “Company” in the first paragraph of this
Indenture until a successor Person or Persons shall have become such pursuant to the applicable
provisions of this Indenture and thereafter “Company” shall mean such successor Person.
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“Company Request” or “Company Order” means a written request or order signed
in the name of the Company by its Chief Executive Officer, its Director General, its Chief
Operating Officer, or its Chief Financial Officer, and by its Director of Administration, its
Treasurer or any other duly authorized officer, and delivered to the Trustee.
“Consolidated Amortization Expense” of any Person means, for any period, the
amortization expense of such Person and its Subsidiaries, determined on a consolidated basis for
such period in accordance with IAS. For purposes of this definition, with respect to the Company,
“Person” shall mean the Company, and “Subsidiaries” shall mean Restricted
Subsidiaries.
“Consolidated Cash Flow Available for Interest Expense” of any Person means, for any
period, the sum (without duplication) of the amounts for such period of (i) Consolidated Net
Income, (ii) Consolidated Interest Expense, (iii) Consolidated Income Tax Expense, (iv)
Consolidated Depreciation Expense, (v) Consolidated Amortization Expense and (vi) other non cash
items reducing (which shall be added back) or increasing (which shall be subtracted) Consolidated
Net Income, all as determined on a consolidated basis for such Person and its Subsidiaries for such
period in accordance with IAS. For purposes of this definition, with respect to the Company,
“Person” shall mean the Company, and “Subsidiaries” shall mean Restricted
Subsidiaries.
“Consolidated Debt Service Coverage Ratio” of any Person means the ratio of (i) the
aggregate amount of Consolidated Cash Flow Available for Interest Expense of such Person for the
four full fiscal quarters for which financial information in respect thereof is available
immediately prior to the date of the transaction giving rise to the need to calculate the
Consolidated Debt Service Coverage Ratio (the “Transaction Date”) to (ii) the aggregate
Consolidated Interest Expense of such Person for such four fiscal quarter period; provided that in
making the calculation of Consolidated Interest Expense for purposes of this clause (ii), interest
on any Indebtedness (whether existing or being incurred) bearing a floating interest rate shall be
computed as if the rate in effect on the date of computation had been the applicable rate for the
entire period unless such Person is a party to an Interest Rate Agreement which will be in effect
for at least 12 more months and which has the effect of reducing the rate below the rate on the
date of computation, in which case such lower rate shall be used. For purposes of this definition,
“Consolidated Cash Flow Available for Interest Expense” and “Consolidated Interest
Expense” shall be calculated after giving effect on a pro forma basis for the period of such
calculation to (i) the incurrence of any Indebtedness of such Person or any Subsidiary of such
Person during the period commencing on the first day of the four full fiscal quarters immediately
preceding the Transaction Date for which financial information in respect thereof is available to
and including the Transaction Date (the “Reference Period”), (ii) the repayment of any
Indebtedness of such Person or a Subsidiary of such Person during the Reference Period with the
proceeds of any Indebtedness referred to in the immediately preceding clause (i) or the proceeds
from the sale or other disposition of assets referred to in clause (iv) below, (iii) the
acquisition by such Person or any Subsidiary of such Person during the Reference Period of any
other Person which, as a result of such acquisition, becomes a Subsidiary of such Person or the
acquisition of assets during the Reference Period from any Person which constitutes all or
substantially all of an operating unit or business of such Person and (iv) any sale or other
disposition of assets or properties outside the ordinary course of business by such Person
occurring during the Reference Period, as if such
7
incurrence, repayment, acquisition, sale or disposition occurred on the first day of the
Reference Period. For purposes of this definition, with respect to the Company, “Person”
shall mean the Company, and “Subsidiary” shall mean a Restricted Subsidiary.
“Consolidated Depreciation Expense” of any Person means, for any period, the
depreciation and depletion expense of such Person and its Subsidiaries, determined on a
consolidated basis for such period in accordance with IAS. For purposes of this definition, with
respect to the Company, “Person” shall mean the Company, and “Subsidiaries” shall
mean Restricted Subsidiaries.
“Consolidated Income Tax Expense” of any Person means, for any period, the aggregate
of the income tax expense of such Person and its Subsidiaries, determined on a consolidated basis
for such period in accordance with IAS. For purposes of this definition, with respect to the
Company, “Person” shall mean the Company, and “Subsidiaries” shall mean Restricted
Subsidiaries.
“Consolidated Interest Expense” of any Person means, for any period, the aggregate of
(a) the interest expense of such Person and its Subsidiaries (including, without limitation,
amortization of the issuance cost of any Indebtedness other than the Notes, original issue cost of
any Indebtedness other than the Notes, original issue discount on any Indebtedness, the interest
portion of any deferred payment obligation in accordance with the effective interest method of
accounting, all commissions, discounts and other fees and charges owed with respect to letters of
credit and bankers’ acceptance financings and the net cost associated with Interest Rate Agreements
to the extent attributed to such period), and (b) the interest expense of such Person and its
Subsidiaries with respect to guaranteed Indebtedness (to the extent not included in clause (a)
above), all as determined on a consolidated basis for such period in accordance with IAS. For
purposes of this definition, with respect to the Company, “Person” shall mean the Company,
and “Subsidiaries” shall mean Restricted Subsidiaries.
“Consolidated Net Income” of a Person means, for any period, the aggregate of the net
income or loss of such Person and its Subsidiaries for such period, determined on a consolidated
basis in accordance with IAS, provided that (i) the net income (or loss) of any person which is not
a Subsidiary of such Person (or is deemed not to be a Subsidiary of such Person) or which is
accounted for by the equity method of accounting, shall be included only to the extent of the
amount of cash dividends or distributions paid by such person or its consolidated subsidiaries to
such Person in such period, (ii) the net income (or loss) of any Subsidiary that is subject to any
restriction or limitation on the payment of dividends and other distributions (including loans or
advances) by operation of the terms of its charter or by agreement, instrument, judgment, decree,
order or governmental regulation applicable to the Subsidiary shall be excluded to the extent of
such restriction or limitation in such period, (iii) the net income (or loss) of any Person
acquired in a pooling of interests transaction for any period prior to the date of such acquisition
shall be excluded, (iv) any cash gains or losses attributable to dispositions of capital assets
shall be included, including provisions for any such dispositions, and any non-cash extraordinary
items shall be excluded, and (v) the net income (or loss) from discontinued operations shall be
excluded. For purposes of calculating “Consolidated Net Income” of the Company for any
period, each reference in the foregoing definition to a “Subsidiary” or
“Subsidiaries” shall be deemed a reference to a Restricted Subsidiary.
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“Consolidated Net Worth” means, with respect to any Person, as at any date of
determination, consolidated stockholders’ equity of such Person and its Subsidiaries determined on
a consolidated basis in accordance with IAS, but excluding (to the extent included in computing
such consolidated stockholders’ equity) any amounts attributable to Disqualified Stock of such
Person. For purposes of this definition, with respect to the Company, “Person” shall mean the
Company, and “Subsidiaries” shall mean Restricted Subsidiaries.
“Corporate Trust Office” means the principal office of the Trustee at which at any
particular time its corporate trust business shall be principally administered, which office as of
the date of execution of this Indenture is 000 Xxxxxxx Xxxxxx, Xxxxx 00X, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Global Finance Unit.
“CPOs”
means the Company’s outstanding certificados de
participación ordinarios, or
any securities of the Company issued in replacement thereof.
“CPO Trustee” means the trustee with respect to the Company’s outstanding CPOs issued
pursuant to the Trust Agreement, dated as of November 19, 1989, between Nacional Financiera, S.N.C.
and the Company.
“Currency Agreement” means any foreign exchange contract, currency swap agreement or
other similar agreement or arrangement.
“Custodian” means the Trustee, in its capacity as custodian with respect to the Notes
in global form, or any successor entity thereto.
“Default” means any event which is, or after notice or passage of time or both would
be, an Event of Default.
“Default Rate” shall have the meaning assigned to such term in Section 6.02.
“Defaulted Interest” shall have the meaning assigned to such term in Section 3.10.
“Definitive Note” means a certificated Note registered in the name of the Holder
thereof and issued in accordance with Section 3.08 hereof.
“Depositary” means, with respect to the Notes issuable or issued in whole or in part
in global form, the Person specified in Section 3.05 hereof as the Depositary with respect to the
Notes, and any and all successors thereto appointed as depositary hereunder and having become such
pursuant to the applicable provisions of this Indenture.
“Designated Investment Bank” means the United States-based branch of any of the
following investment banks selected by the Company: Bear Xxxxxxx & Co., Credit Suisse First Boston
Corporation, Xxxxxxxx Xxxxx Xxxxxx & Xxxxx Capital, X.X. Xxxxxx Securities, Xxxxxx Xxxxxxxx,
Xxxxxxx Xxxxx & Co. or Xxxxxx Xxxxxxx & Co., or their respective successors, provided, that such
investment bank has not been engaged to render investment banking services to the Company or KCS or
their respective subsidiaries in the six months preceding the date of delivery of such opinion and
agrees not to render investment banking services to the Company or KCS or their respective
subsidiaries in the six month period following the date of delivery of
9
such opinion; provided, however, that notwithstanding the limitation of the foregoing proviso,
X.X. Xxxxxx Securities may render services to the Company with respect to the transactions covered
by the engagement letter, dated as of October 1, 2001, between the Company and X.X. Xxxxxx
Securities.
“Disqualified Stock” of any Person means any Capital Stock of such Person that, by its
terms (or by the terms of any security into which it is convertible or for which it is exercisable,
redeemable or exchangeable), matures, or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or is redeemable at the option of the holder thereof, in whole or in part,
on or prior to August 1, 2008, except to the extent that such Capital Stock is solely redeemable
with or exchangeable for, either mandatorily or at the option of such Person, any Capital Stock of
such Person that is not Disqualified Stock.
“Distribution Compliance Period” means, with respect to any Notes, the period of 40
consecutive days beginning on and including the later of (i) the day on which such Notes are first
offered to Persons other than distributors (as defined in Regulation S) in reliance on Regulation S
and (ii) the issue date with respect to such Notes.
“Dollars” or “$” means the currency of the United States of America.
“
DTC” means The Depository Trust Company, a
New York corporation, and any successors
thereto.
“Euroclear” means Euroclear Bank S.A./N.V., as operator of the Euroclear System.
“Event of Default” shall have the meaning assigned to such term in Section 6.01.
“Excess Proceeds” shall have the meaning assigned to such term in Section 5.18(d).
“Excess Proceeds Offer” shall have the meaning assigned to such term in Section
5.18(d).
“Exchange Act” means the Securities Exchange Act of 1934, as amended from time to
time, or any successor act.
“Exchange Transaction” shall have the meaning assigned to such term in Section
5.18(e).
“Existing Servia Payable” means the obligations in the amount of $6,500,000 payable by
the Company to Promotora Servia pursuant to the terms of (i) the Tax Benefits Agreement dated
December 5, 2001, between the Company and Promotora Servia, and (ii) the Termination Agreement
dated August 23, 2001, between the Company and Promotora Servia, as amended and supplemented by
amendments, dated October 11, 2001 and August 27, 2002.
“Extension Election” shall have the meaning assigned to such term in Section 3.01(b).
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“Extension Fee” shall have the meaning assigned to such term in Section 3.01(b).
“Global Note” shall have the meaning assigned to such term in Section 2.01.
“Global Note Legend” means the legend set forth in Section 2.02, which is required to
be placed on all Global Notes issued under this Indenture.
“GM Put” means the obligation of the Company and its Subsidiaries to repurchase shares
of Capital Stock of TMM Multimodal pursuant to the Stockholder Agreement dated as of June 30, 2000,
between the Company, TMM Multimodal and EMD Holdings, Inc.
“Group” shall have the meaning assigned to such term in Section 5.16.
“Grupo TFM” means Grupo Transportación Ferroviaria Mexicana, S.A. de C.V., a
corporation organized and existing under the laws of the United Mexican States.
“GTFM Disposition” means any (i) sale, conveyance, transfer or other disposition (or
series of related sales, conveyances, transfers or other dispositions) of the Capital Stock or
assets of TMM Holdings, TMM Multimodal, Grupo TFM, or TFM (or any successor of any of them), (ii)
merger or consolidation (or approval of any merger or consolidation) with or of TMM Holdings, TMM
Multimodal, Grupo TFM or TFM (or any successor of any of them), or (iii) issuance of Capital Stock
of (x) TMM Holdings or TMM Multimodal (or any successor of either of them), or (y) Grupo TFM or TFM
(or any successor of either of them). In the case of any issuance of Capital Stock under clause
(iii)(y), the Net Cash Proceeds of such GTFM Disposition shall mean the amount of any dividends or
distributions received by the Company or any Restricted Subsidiary from Grupo TFM or TFM (or any
successor of either of them) on or after the date of such issuance of Capital Stock of Grupo TFM or
TFM (or any successor of either of them), less the amount of all foreign, Federal, state and local
taxes payable by the Company or any Restricted Subsidiary as a direct consequence of such GTFM
Disposition, including in connection with the payment of such dividends or distributions
(including, without limitation, taxes withheld in connection with repatriation of such proceeds),
net of any tax benefits derived in respect of such GTFM Disposition or such dividends or
distributions (referred to herein as “group-level taxes”); provided that the amount of such
Net Cash Proceeds shall be limited to (A) the product of (1) the Company’s and its Restricted
Subsidiaries’ percentage economic interest in Grupo TFM and TFM at the time of the issuance of such
Capital Stock or at the time such dividends or distributions are made, whichever is greater, and
(2) the net proceeds received by Grupo TFM or TFM from the issuance of such Capital Stock (net of
all foreign, Federal, state and local taxes paid by Grupo TFM or TFM as a direct consequence of the
receipt by Grupo TFM or TFM of proceeds from the issuance of Capital Stock, including in connection
with the payment of such dividends or distributions (including, without limitation, taxes withheld
in connection with repatriation of such proceeds), net of any tax benefits derived in respect of
such dividends or distributions), less (B) the amount of any group-level taxes deducted from Net
Cash Proceeds pursuant to this provision. There shall be no duplication of any taxes that are
otherwise deducted pursuant to the preceding sentence. Net Cash Proceeds as determined under
clause (iii)(y) shall be in addition to, and not in lieu of or in substitution for, any VAT
Proceeds that may be calculated based on dividends or distributions by Grupo TFM or TFM to the
Company or any Restricted Subsidiary.
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“Guarantee” means, as applied to any Indebtedness of any other Person (the
“Primary Obligor”), (i) a guarantee (other than by endorsement of negotiable instruments
for collection in the ordinary course of business), direct or indirect, in any manner, of any part
or all of such Indebtedness or (ii) an agreement, direct or indirect, contingent or otherwise,
(A) providing assurance of the payment or performance (or payment of damages in the event of
non-performance) of any part or all of such Indebtedness, including, without limiting the
foregoing, reimbursement obligations with respect to amounts drawn on letters of credit, (B) to
purchase property, securities or services for the purpose of assuring the holder of such
Indebtedness of the payment of such Indebtedness, or (C) to maintain working capital, equity
capital or other financial statement condition or liquidity of the Primary Obligor so as to enable
the Primary Obligor to pay such Indebtedness. Notwithstanding anything herein to the contrary, a
Guarantee shall not include any agreement providing for indemnification. The amount of a guarantee
shall be deemed to be the maximum amount of the Indebtedness guaranteed for which the guarantor
could be held liable under such guarantee. When used with respect to the Notes, a “Guarantee”
means the guarantee by the Guarantors of all or any part of the Notes, in accordance with Article
Fourteen.
“Guarantee Obligations” shall have the meaning assigned to such term in Section 14.01.
“Guarantors” means those Persons named as the “Guarantors” in the first paragraph of
this Indenture and their respective successors and assigns, and any other Person that pursuant to
Section 5.23 or Article Fourteen is required to provide a Guarantee of the Company’s obligations
under the Notes, this Indenture and the Collateral Documents.
“Holder” means a Person in whose name a Note is registered in the Note Register.
“IAI Global Note” means a Global Note bearing the Global Note Legend and the Private
Placement Legend and deposited with or on behalf of the Depositary and registered in the name of
the Depositary or its nominee, issued in a denomination equal to the outstanding principal amount
of the Notes issued in reliance on Rule 506(a).
“IAS” means accounting principles issued by the International Accounting Standards
Committee as in effect from time to time; provided, that with respect to the obligations of the
Company under Articles Five and Eleven, “IAS” means accounting principles issued by the
International Accounting Standards Committee as in effect on the date of this Indenture, in each
case, as consistently applied by the Company.
“Incurrence” shall have the meaning assigned to such term in Section 5.14(a).
“Indebtedness” with respect to any Person means (without duplication) any liability,
whether or not contingent, (i) in respect of borrowed money (whether or not the recourse of the
lender is to the whole of the assets of such Person or only to a portion thereof) or evidenced by
bonds, notes, debentures or similar instruments, or (ii) representing the balance deferred and
unpaid of the purchase price of any property, conditional sales obligations and obligations under
any title retention agreement (but excluding trade account payables and other accrued current
liabilities arising in the ordinary course of business), and shall also include
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(without duplication) (a) any Capitalized Lease Obligations, (b) the maximum fixed repurchase
price of any Disqualified Stock of such Person, (c) obligations of others secured by a Lien to
which any property or asset, including leasehold interests under Capitalized Lease Obligations and
any other tangible or intangible property rights, owned or held by such Person is subject, whether
or not the obligation secured thereby shall have been assumed (provided, that, if the obligations
have not been assumed, such obligations shall be deemed to be in an amount equal to the lesser of
(x) the amount of the obligation so secured and (y) the fair market value of the property or
properties to which the Lien relates, as determined in good faith by the Board of Directors of such
Person and as evidenced by a Board Resolution), (d) reimbursement obligations in respect of letters
of credit (other than letters of credit issued for the benefit of trade creditors in the ordinary
course of business of such Person in connection with obtaining goods, materials or services), (e)
net obligations under Interest Rate Agreements or similar agreements or Currency Agreements of such
Person, (f) Attributable Debt, and (g) guarantees with respect to the foregoing items (regardless
of whether the foregoing items would appear as a liability on a balance sheet of such Person
prepared on a consolidated basis in accordance with IAS); provided, that, for the purpose of
computing the amount of Indebtedness of such Person outstanding at any time, such items shall be
excluded to the extent that they would be eliminated as intercompany items for purposes of such
Person’s consolidated financial statements. For purposes of the preceding sentence, the “maximum
fixed repurchase price” of any Disqualified Stock which does not have a fixed repurchase price
shall be calculated in accordance with the terms of such Disqualified Stock as if such Disqualified
Stock were purchased on any date on which Indebtedness shall be required to be determined pursuant
to this Indenture, and if such price is based upon, or measured by, the fair market value of such
Disqualified Stock (or any equity security for which it may be exchanged or converted), such fair
market value shall be determined in good faith by the Board of Directors of such Person and
evidenced by a Board Resolution. The amount of Indebtedness of any Person at any date will be the
outstanding balance at such date of all unconditional obligations of such Person described above
and the maximum liability, assuming the occurrence of the contingencies giving rise to the
obligation, of any contingent obligations of such Person described above. Notwithstanding anything
in this definition to the contrary, “Indebtedness” shall not include (i) customer advance payments
and customer deposits received by the Company or any Restricted Subsidiary in the ordinary course
of business or (ii) revenue and costs of voyages in process.
“Indenture” means this instrument as originally executed or as it may from time to
time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant
to the applicable provisions hereof.
“Initial Issuance Date” means the date of this Indenture.
“
Initial Notes” means the Senior Secured Notes due 2007 issued on the Initial Issuance
Date (i) pursuant to the Exchange Offer, (ii) to Promotora Servia in payment of the Existing Servia
Payable, (iii) to the X.X. Xxxx Parties pursuant to the X.X. Xxxx
Letter Agreement in payment of
the obligations of the Company under the X.X. Xxxx Note, and (iv) to the Purchasers pursuant to the
Note Purchase Agreement.
“Initial Private Notes” means the Initial Notes issued (i) in reliance on Rule 144A,
Rule 506(a) and Regulation S pursuant to the Exchange Offer, (ii) to Promotora Servia in
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payment of the Existing Servia Payable, (iii) to the X.X. Xxxx Parties pursuant to the X.X.
Xxxx
Letter Agreement in payment of the obligations of the Company under the X.X. Xxxx Note, and
(iv) to the Purchasers pursuant to the Note Purchase Agreement.
“Institutional Accredited Investor” means an institution that is an “accredited
investor” as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act.
“Interest Payment Date” means the Stated Maturity of an installment of interest on the
Notes.
“Interest Rate Agreement” means any interest rate protection agreement, interest rate
future agreement, interest rate option agreement, interest rate swap agreement, interest rate cap
agreement, interest rate collar agreement, interest rate hedge agreement, option or future contract
or other similar agreement or arrangement.
“Investment” means any direct or indirect advance, loan or other extension of credit
or capital contribution to (by means of any transfer of cash or other property (other than Capital
Stock of the Company which is not Disqualified Stock) to any other Person or any payment for
property or services for the account or use of any other Person), or any purchase or acquisition of
Capital Stock, bonds, notes, debentures or other securities issued to any other Person. For the
purposes hereof, the amount of any Investment shall be the original cost of such Investment, plus
the cost of all additions thereto, but without any other adjustments for increases or decreases in
value, or write-ups, write-downs or write-offs with respect to such Investment; and shall be
reduced by the payment of dividends or distributions in connection with such Investment or any
other amounts received in respect of such Investment. In determining the amount of any Investment
involving a transfer of any property or asset other than cash, such property shall be valued at its
fair market value at the time of such transfer, as determined in good faith by the board of
directors (or comparable body) of the Person making such transfer. If the Company or any
Restricted Subsidiary of the Company sells or otherwise disposes of any Capital Stock of any direct
or indirect Restricted Subsidiary of the Company such that, after giving effect to any such sale or
disposition, such Person is no longer a Subsidiary of the Company, the Company shall be deemed to
have made an Investment on the date of any such sale or disposition equal to the fair market value
of the Capital Stock of such Restricted Subsidiary not sold or disposed of unless the transferee of
the Capital Stock of such Restricted Subsidiary is a direct or indirect Wholly-Owned Subsidiary.
“X.X. Xxxx Parties” means X.X. Xxxx Transport, Inc. and L.A., Inc. (“L.A.”).
“X.X. Xxxx Agreement” means the Memorandum of Agreement, dated as of February 28,
2002, as amended by the Amendment to the Memorandum of Agreement, dated as of December 20, 2002,
and the Second Amendment to the Memorandum of Agreement, dated as of October 14, 2003, entered into
by and among the X.X. Xxxx Parties, the Company, Comercializadora Internacional de Carga, S.A. de
C.V. (“CIC”) and TMM Logistics, S.A. de C.V. (“TMML”), as amended through the Initial Issuance
Date.
“X.X. Xxxx Letter Agreement” means that certain
letter agreement, dated as of June 30,
2004, entered into by and among the X.X. Xxxx Parties, the Company, CIC and TMML.
14
“X.X. Xxxx Note” means the Promissory Note issued as of February 28, 2004, of TMM
Logistics, S.A. de C.V. in favor of L.A., Inc., a subsidiary of X.X. Xxxx, in the original
principal amount of $18,112,830.00, pursuant to the X.X. Xxxx Agreement, as amended through the
Initial Issuance Date. As of the Issuance Date, there was $13,584,622.50 aggregate principal
amount outstanding under the X.X. Xxxx Note, plus accrued and unpaid interest.
“KCS” means Kansas City Southern, a Delaware corporation, and its subsidiaries.
“KCS Transaction” means the transactions contemplated by that certain Acquisition
Agreement dated as of April 21, 2003, by and among KCS, Kara Sub, Inc., the Company, TMM Holdings
and TMM Multimodal.
“Lien” means any lien, mortgage, deed of trust, fideicomiso de garantía, pledge,
assignment (including any assignment of rights to receive payments of money), security interest,
charge or encumbrance of any kind (including any conditional sale or other title retention
agreement or any lease in the nature thereof), including the creation of any interest in or option
on or based on the value of any asset, and any agreement to give a lien, mortgage, deed of trust,
fideicomiso de garantía, pledge, assignment (including any assignment of rights to receive payments
of money), security interest, charge or other encumbrance of any kind, or to create any interest in
or option on or based on the value of any asset. The term “Lien” shall also include any
restriction on the disposition or pledge of any securities, interests or assets imposed by
applicable law or by contract, including, without limitation, securities received in connection
with any Qualifying Disposition and interests arising in connection with any joint venture
agreement, shareholders agreement, partnership agreement or similar agreement.
“Maturity,” when used with respect to any Note, means the date on which the principal
(or a portion thereof) of such Note becomes due and payable as therein or herein provided, whether
at Stated Maturity or by declaration of acceleration, call for redemption or otherwise, including
any date to which the Maturity may be extended pursuant to Section 3.01.
“Mexican Government” means the Federal government of the United Mexican States,
including any agency, authority, instrumentality or political subdivision thereof.
“Minimum Cash Rate” shall have the meaning assigned to such term in Section
3.01(c)(i).
“Moody’s” means Xxxxx’x Investors Service, Inc. or any successor thereto.
“Net Cash Proceeds” means cash payments in U.S. dollars or a currency freely
convertible into U.S. dollars received by the Company or any of its Restricted Subsidiaries
(including (x) any cash payments received by way of deferred payment of principal pursuant to a
note or installment receivable or otherwise or amounts eliminated from any reserve referred to in
clause (v) below, but only as and when received or eliminated, (y) any cash dividends or other cash
distributions received by the Company or any of its Restricted Subsidiaries, and (z) any cash
payments received upon the disposition of any non-cash proceeds of any Asset Disposition or
Qualifying Disposition but only as and when received) from any Asset Disposition or
15
Qualifying Disposition after the Initial Issuance Date (after repayment of any Indebtedness
owed to any Person that becomes due by reason of such Asset Disposition or Qualifying Disposition
other than (A) Indebtedness owed to an Affiliate or Associate of the Company (other than (x)
obligations arising in the ordinary course of business consistent with past practice owed to a
Restricted Subsidiary that is not a Wholly Owned Subsidiary and (y) any payments required to be
made on the Notes), (B) Indebtedness under the Receivables Securitization Facility except to the
extent permitted by Section 5.18 and (C) Indebtedness of the Company or any Guarantor that ranks
junior to the Notes or the Guarantees, respectively), in each case net of the amount of (i)
brokers’ and advisors’ fees and commissions payable in connection with such Asset Disposition or
Qualifying Disposition, (ii) all foreign, Federal, state and local taxes payable as a direct
consequence of such Asset Disposition or Qualifying Disposition, including in connection with the
payment of a dividend, or the making of a distribution, by a consolidated Subsidiary of the Company
of such cash payments to the Company or any consolidated Subsidiary of the Company (including,
without limitation, taxes withheld in connection with repatriation of such proceeds), net of any
tax benefits derived in respect of such dividend or distribution, (iii) the fees and expenses
attributable to such Asset Disposition or Qualifying Disposition to the extent not included in
clause (i), except to the extent payable to any Affiliate or Associate of the Company, (iv) any
amount required to be paid to any Person (other than the Company or any of its Restricted
Subsidiaries) owning a beneficial interest in the property or assets sold, and (v) deduction of
appropriate amounts to be provided by the Company or its Restricted Subsidiaries as a reserve, in
accordance with IAS, against any liabilities retained or created by the Company or any Restricted
Subsidiary of the Company associated with such assets after such Asset Disposition or Qualifying
Disposition, including, without limitation, any indemnification obligation or purchase price
adjustment associated with such Asset Disposition or Qualifying Disposition. For purposes of the
foregoing, Net Cash Proceeds shall be deemed to include awards of compensation for any asset or
property or group thereof taken by condemnation or eminent domain and insurance proceeds for the
loss of or damage to any asset or property; provided that any such awards or proceeds that do not
exceed $10 million in the aggregate shall not be deemed to be Net Cash Proceeds unless within 180
days after the receipt thereof such asset or property has not been replaced or repair or
construction has not commenced, provided, however, that if, at any time such repair or construction
is abandoned or otherwise discontinued prior to completion or is not diligently pursued, such
remaining awards or proceeds, as the case may be, shall constitute Net Cash Proceeds at such time.
“Non-U.S. Person” means a Person who is not a U.S. Person.
“Note Linked Securities” means that certain Note Linked Security Representing The
Right To Purchase American Depositary Shares of the Company, dated as of May 29, 2002, issued to
certain holders in connection with that certain Securities Purchase Agreement, dated as of May 6,
2002, by and between the Company and certain investors, and that certain Senior Convertible Note of
the Company issued thereunder, dated as of May 29, 2002.
“Note Purchase Agreement” means that certain Purchase Agreement, dated as of July
29, 2004, entered into by and among the Company, the Guarantors and the Purchasers, as such
agreement may be amended, modified or supplemented from time to time.
16
“Note Register” and “Note Registrar” shall have the respective meanings
specified in Section 3.05.
“Notes” means, collectively, the Initial Notes and the Additional Notes treated as a
single class of securities, as amended or supplemented from time to time in accordance with the
terms of this Indenture.
“Notice of Sale” means each of, or all of, as the context shall require, the notice of
sale, foreclosure request or similar notice to be delivered pursuant to Section 6.03 by the Trustee
to the applicable Collateral Agent in accordance with the Collateral Documents in the form annexed
to the applicable Collateral Document.
“Offer” shall have the meaning assigned to such term in Section 5.16.
“Officers’ Certificate” means a certificate signed by the Chairman of the Board of
Directors, a Vice Chairman of the Board of Directors, the Director General, the President, or any
Vice President, and the Director of Administration, the Treasurer, the Secretary or any Assistant
Treasurer or Assistant Secretary, of the Company, and delivered to the Trustee. Each such
Officers’ Certificate shall comply with Section 1.02.
“Offset Amount” means, in respect of, or in satisfaction of the obligations of Grupo
TFM, the Company or any Restricted Subsidiary in respect of, the Put, any amounts that (i) are paid
or agreed to be paid by the Company, any Restricted Subsidiary, Grupo TFM, TFM or any Subsidiary of
TFM to the Mexican Government, or (ii) are offset by the Company, any Restricted Subsidiary, Grupo
TFM, TFM or any Subsidiary of TFM, in each case in a single transaction or a series of related
transactions, with respect to or against any receipt of proceeds from, or settlement of, the VAT
Claim; provided, that any such amounts paid, agreed to be paid or offset by the Company, any
Restricted Subsidiary, Grupo TFM, TFM or any Subsidiary of TFM prior to or within three (3) months
following receipt of proceeds from, or settlement of, the VAT Claim shall be deemed to be part of a
single transaction or series of related transactions.
“Opinion of Counsel” means a written opinion of counsel, who may be counsel for or an
employee of the Company, which is acceptable in form and substance to the Trustee. Each Opinion of
Counsel shall comply with Section 1.02.
“Outstanding” when used with reference to Notes means, as of the date of
determination, all Notes authenticated and delivered by the Trustee under this Indenture, except
(a) Notes theretofore canceled by the Trustee or delivered to the Trustee for
cancellation;
(b) Notes or portions thereof for the payment or redemption of which moneys shall have
been deposited in trust with the Trustee, provided, that if such Notes are to be redeemed,
notice of such redemption shall have been given pursuant to this Indenture, or provision
satisfactory to the Trustee shall have been made for the giving of such notice; and
17
(c) Notes in lieu of or in substitution for which other Notes shall have been
authenticated and delivered pursuant to Section 3.03;
provided, however, that in determining whether the Holders of the requisite principal amount of the
Outstanding Notes have given any request, demand, authorization, direction, notice, consent or
waiver hereunder, Notes owned by the Company, any Guarantor or any other obligor of the Notes or
any Person that, at such time, is an Affiliate of the Company, of any Guarantor or of such other
obligor, shall be disregarded and deemed not to be Outstanding, except that, in determining whether
the Trustee shall be protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Notes which a Responsible Officer of the Trustee knows to be so
owned shall be so disregarded. Notes so owned which have been pledged in good faith may be regarded
as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so
to act with respect to such Notes and that the pledgee is not the Company, any Guarantor or any
other obligor upon the Notes or any Affiliate of the Company, of any Guarantor or of such other
obligor.
“Partial Qualifying Disposition” means a GTFM Disposition (other than a disposition to
or merger or consolidation with the Company or another Restricted Subsidiary) involving the Capital
Stock of TMM Holdings or TMM Multimodal in which (i) after giving effect to such transaction, the
Company and its Restricted Subsidiaries control, directly or indirectly, more than 50% of the
Capital Stock of TMM Multimodal which under ordinary circumstances (not dependent upon the
happening of a contingency) has voting power to elect a majority of the board of directors of TMM
Multimodal, (ii) at least 80% of the consideration received from such transaction is in the form of
cash, (iii) the Company and the Guarantors receive the opinion described in clause (1) under the
definition of a Qualifying Disposition (for the purposes of this definition, notwithstanding the
amount of the consideration for such transaction and fair market value shall be determined on an
enterprise value basis), and (iv) such transaction is effected in accordance with any applicable
release provisions in this Indenture or in the Collateral Documents.
“Participant” means, with respect to the Depositary, Euroclear or Clearstream, a
Person who has an account with the Depositary, Euroclear or Clearstream, respectively (and, with
respect to DTC, shall include Euroclear and Clearstream).
“Paying Agent” means any Person authorized by the Company to pay the principal of,
premium, if any, and interest and Additional Amounts, if any, on the Notes on behalf of the
Company.
“Person” or “person” means any individual, corporation, partnership, joint
venture, trust, unincorporated organization or other entity or a government or any agency or
political subdivision thereof.
“Place of Payment” means the principal office of the Trustee and such other place or
places where the principal of, premium, if any, and interest and Additional Amounts, if any, on the
Notes are payable.
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“Predecessor Note” of any particular Note means every previous Note evidencing all or
a portion of the same debt as that evidenced by such particular Note; and, for the purposes of this
definition, any Note authenticated and delivered under Section 3.03 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Note shall be deemed to evidence the same debt as the
mutilated, destroyed, lost or stolen Note.
“
Principal Market” means the
New York Stock Exchange, Inc. or, if the ADSs are not
traded on the
New York Stock Exchange, Inc., then the principal securities exchange or trading
market for the ADSs.
“Private Placement Legend” means the legend set forth in Section 2.02, which is
required to be placed on all Restricted Global Notes and Transfer Restricted Securities issued
under this Indenture except as otherwise permitted by the provisions of this Indenture.
“Proceeds Offer Repurchase Date” shall have the meaning assigned to such term in
Section 5.18(d).
“Promotora Servia” means Promotora Servia, S.A. de C.V., a corporation organized and
existing under the laws of the United Mexican States, and its successors and assigns.
“Purchasers” shall have the meaning assigned to such term in the Note Purchase
Agreement.
“Put” means the existing joint and several obligation of the Company and KCS to
purchase the shares of TFM owned by the Mexican Government pursuant to the Agreements, dated
January 31, 1997 and June 9, 1997, among the Mexican Government, Grupo TFM, the Company and KCS.
“QIB” means a “qualified institutional buyer” as defined in Rule 144A.
“Qualifying Disposition” means any GTFM Disposition which (a) is an Exchange
Transaction, (b) is a Partial Qualifying Disposition, (c) is a Receivables Securitization Facility
Foreclosure or (d) meets each of the following requirements:
(1) if the transaction involves more than $10 million, individually, or if all transactions
entered into after the Initial Issuance Date involve more than $25 million in the aggregate, the
Company and the Guarantors receive an opinion from a Designated Investment Bank to the effect that
the consideration to be received in connection with such transaction is fair, from a financial
point of view, to the Company and its Restricted Subsidiaries;
(2) the cash consideration to be received in such transaction is equal to or greater than 35%
of the principal amount of the Outstanding Notes plus accrued and unpaid interest thereon at the
time of the consummation of such transaction, provided, that the amount of any notes or other
obligations received by the Company or any such Restricted Subsidiary from such transferee that are
immediately converted by the Company or such Restricted Subsidiary into cash (to the extent of the
cash received) shall be deemed to be cash for this purpose;
19
(3) any consideration other than cash to be received in such transaction shall be in the form
of securities (i) issued by a Person that is eligible to register securities on Form F-3 or Form
S-3 under the Securities Act and such securities so received are either (x) freely transferable
under the Securities Act or (y) entitled to the benefits of a registration rights agreement
pursuant to which the issuer of such securities is required to effect a registration under the
Securities Act of the securities received in such transaction not later than six months after the
closing of the transaction (subject to customary blackout, hold-back and other similar provisions)
and (ii) constituting no more than 40% of the outstanding fully-diluted Capital Stock of such
Person; and
(4) the party to which such shares of Capital Stock are sold, issued, conveyed, transferred or
otherwise disposed of or with or into which the Company or any Restricted Subsidiary (or any
successor of any of them) is merged is not, immediately prior to the transaction, an Affiliate or
Associate of the Company.
“Qualifying Exchange” means any exchange by the Company or any Restricted Subsidiary
of shares of Capital Stock (other than Disqualified Capital Stock) of the Company or of Qualifying
Subordinated Indebtedness of the Company for Outstanding Notes, at the option of the Holder of the
Outstanding Notes; provided, that, in the case of any exchange involving Qualifying Subordinated
Indebtedness, such exchange is not made with an Affiliate or an Associate unless it is made
pursuant to an exchange offer made to all of the holders of the Notes.
“Qualifying PEMEX Securitization Transaction” means a transaction in which:
(1) certain assets of the Company or a Restricted Subsidiary used or intended to be used in
connection with (x) services to be rendered to, or contracts with, Petroleos Mexicanos or
(y) services to be rendered indirectly to, or contracts indirectly with, Petroleos Mexicanos, to or
through any Person formed to render services to, or contract with, Petroleos Mexicanos, are
transferred at fair market value to a Person formed for the sole purpose of participating in the
Qualifying PEMEX Securitization Transaction;
(2) the Company receives an opinion as to the fairness of such transaction to the Company from
a financial point of view issued by a Designated Investment Bank;
(3) the assets of such Person shall not consist of assets transferred to such Person by the
Company or any Restricted Subsidiary except in connection with a Qualifying PEMEX Securitization
Transaction; and
(4) such Person incurs Indebtedness secured by such assets that is not guaranteed by, does not
have recourse to, and does not constitute Indebtedness of, the Company or any of its Restricted
Subsidiaries.
“Qualifying Subordinated Indebtedness” means Indebtedness of the Company that (i) is
subordinated in right of payment to the Notes, (ii) does not require any principal payments prior
to the Stated Maturity of the principal of the Notes (as such may be extended pursuant to Section
3.01(b)) and (iii) has aggregate annual cash interest payments not in excess of the lesser of (a)
the sum of (1) 2% of the principal amount of such Qualifying Subordinated Indebtedness plus (2) the
annual cash interest requirements on all Notes retired by the Company prior to the
20
issuance date of such Qualifying Subordinated Indebtedness through the application of VAT
Proceeds (less any cash interest requirements in excess of 2% per annum on Qualifying Subordinated
Indebtedness previously issued) and (b) 8% per annum of the principal amount of such Qualifying
Subordinated Indebtedness.
“
Receivables Securitization Facility” means the receivables securitization facility
established pursuant to the following documents (and all other documents related to such facility),
in each case as in effect from time to time, and any replacement, refinancing or extension thereof
permitted pursuant to the terms of Section 5.14 (b)(vii) hereof: Third Amended and Restated Master
Trust Agreement dated as of August 19, 2003, as amended by Amendment Number One to Third Amended
and Restated Master Trust Agreement dated as of December 29, 2003, Amendment Number Two to Third
Amended and Restated Master Trust Agreement dated as of May 25, 2004, and Amendment Number Three to
Third Amended and Restated Master Trust Agreement dated as of June 10, 2004 (as so amended, and as
amended from time to time, through the date hereof, the “
Master Trust Agreement”) pursuant
to which The Bank of
New York, as trustee, has issued to Maple Bank GmbH (“
Maple”),
Investor Certificates (the “
Investor Certificates”) in the original aggregate principal
amount of $95,300,000 under a Series 2003-A Supplement dated as of August 19, 2003, as amended by
Amendment Number One to Series 2003-A Supplement dated as of December 29, 2003, Amendment Number
Two to Series 2003-A Supplement dated as of May 25, 2004 and Amendment Number Three to Series
2003-A Supplement dated as of June 10, 2004 (as so amended, and as amended from time to time,
through the date hereof, the “
Series 2003-A Supplement”) among the Sellers, the Bank of
New
York, as trustee, and Maple, and as amended by the
Letter Agreement (the “
Receivables Letter
Agreement”) dated as of August 6, 2004 among the Company, TMM Logistics, S.A. de C.V., Naviera
Del Xxxxxxxx, X.X. de C.V., and The Bank of New York, as trustee, and Maple Bank GmbH, and the
Termination Agreement dated as of August 6, 2004 between the Company and the Bank of New York.
“Receivables Securitization Facility Foreclosure” means any disposition of the Capital
Stock of TMM Multimodal upon a foreclosure (or sale in lieu of foreclosure) of such Capital Stock
by the holders of the certificates under the Receivables Securitization Facility (or by any trustee
or collateral agent acting thereunder) pursuant to the Receivables Securitization Facility or any
Collateral Document relating to the Capital Stock of TMM Multimodal.
“Redemption Date,” when used with respect to any Note to be redeemed, in whole or in
part, means the date fixed for such redemption by or pursuant to this Indenture.
“Redemption Price,” when used with respect to any Note to be redeemed, means the price
(exclusive of accrued and unpaid interest and Additional Amounts, if any) payable in cash at which
it is to be redeemed pursuant to this Indenture.
“Refinance” shall have the meaning assigned to such term in Section 5.14(b)(vii).
“Refinancing Indebtedness” shall have the meaning assigned to such term in Section
5.14(b)(vii).
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“Registration Rights Agreement” means the Registration Rights Agreement, dated as of
the Initial Issuance Date, by and among the Company and the Guarantors in favor of the Holders of
Initial Private Notes as such agreement may be amended, modified or supplemented from time to time.
“Regular Record Date” for the interest payable on any Interest Payment Date on the
Notes means the January 15 or July 15 (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date; provided, that if the Company exercises the Extension
Election, the Regular Record Dates for the Interest Payment Dates occurring during the extended
term of the Notes shall be July 15, 2007, October 15, 2007, January 15, 2008 and April 15, 2008.
“Regulation S” means Regulation S promulgated under the Securities Act.
“Regulation S Global Note” means a Global Note bearing the Global Note Legend and the
Private Placement Legend and deposited with or on behalf of the Depositary and registered in the
name of the Depositary or its nominee, issued in a denomination equal to the outstanding principal
amount of the Notes issued in reliance on Rule 903 of Regulation S.
“Repurchase Date” shall have the meaning assigned to such term in Section 5.16.
“Repurchase Price,” when used with respect to any Note to be repurchased, means the
price payable in cash at which it is to be repurchased pursuant to Section 5.16 or 5.18.
“Responsible Officer,” when used with respect to the Trustee, means any officer within
the Corporate Trust Office (or any successor office) of the Trustee, including, without limitation,
any Vice President, any Assistant Vice President, any Senior Trust Officer, any Trust Officer or
any other officer of the Trustee customarily performing functions similar to those performed by any
of the above designated officers, who shall, in any case, be responsible for the administration of
this Indenture or have familiarity with it, and also means, with respect to particular corporate
trust matters, any other officer to whom such matter is referred because of his knowledge of and
familiarity with the particular subject.
“Restricted Global Notes” means the Rule 144A Global Note, the IAI Global Note and the
Regulation S Global Note, each of which shall bear the Private Placement Legend.
“Restricted Payments” shall have the meaning assigned to such term in Section 5.12(a).
“Restricted Subsidiary” means any consolidated Subsidiary of the Company other than
(i) Grupo TFM and its consolidated Subsidiaries and (ii) any Subsidiary of the Company formed
solely for the purpose of, and whose operations consist solely of, participating in a Qualifying
PEMEX Securitization Transaction.
“Rule 144” means Rule 144 promulgated under the Securities Act.
“Rule 144A” means Rule 144A promulgated under the Securities Act.
22
“Rule 144A Global Note” means a Global Note bearing the Global Note Legend and the
Private Placement Legend and deposited with or on behalf of the Depositary and registered in the
name of the Depositary or its nominee, issued in a denomination equal to the outstanding principal
amount of the Notes issued in reliance on Rule 144A.
“Rule 506(a)” means Rule 506(a) promulgated under the Securities Act.
“Rule 903” means Rule 903 promulgated under the Securities Act.
“Rule 904” means Rule 904 promulgated under the Securities Act.
“Securities Act” means the Securities Act of 1933, as amended from time to time, or
any successor act.
“Shelf Registration Statement” means any registration statement filed with the
Commission by the Company and the Guarantors covering resales by Holders of the Initial Private
Notes, as specified in the Registration Rights Agreement.
“Special Record Date” for the payment of any Defaulted Interest on the Notes means a
date fixed by the Company pursuant to Section 3.10.
“Standard & Poor’s” means Standard & Poor’s Ratings Group, a division of XxXxxx-Xxxx
Inc., or any successor thereto.
“Stated Maturity,” when used with respect to any Note or any installment of interest
thereon, means the date specified in such Note as the fixed date on which the principal of such
Note or such installment of interest is due and payable.
“Subsidiary” means any Person of which any other Person directly or indirectly owns or
controls stock (or other ownership interests) which under ordinary circumstances (not dependent
upon the happening of a contingency) has voting power to elect a majority of the board of directors
(or equivalent governing body) of such Person.
“Surviving Entity” shall have the meaning assigned to such term in Section 11.01(1).
“TFM” means TFM, S.A. de C.V., a corporation organized and existing under the laws of
the United Mexican States.
“TMM Holdings” means TMM Holdings, S.A. de C.V., a corporation organized and existing
under the laws of the United Mexican States.
“TMM Multimodal” means TMM Multimodal, S.A. de C.V., a corporation organized and
existing under the laws of the United Mexican States.
“Transfer” shall have the meaning assigned to such term in Section 11.01.
23
“Transfer Restricted Securities” means securities that bear or are required to bear
the Private Placement Legend set forth in Section 2.02 hereof.
“Trustee” means the Person named as the “Trustee” in the first paragraph of this
instrument until a successor Trustee shall have become such pursuant to the applicable provisions
of this Indenture, and thereafter “Trustee” shall mean such successor Trustee.
“Trust Indenture Act” means the Trust Indenture Act of 1939, as amended, and as in
force at the date on which this Indenture was executed, except as provided in Section 10.05.
“Unrestricted Global Note” means one or more Global Notes that bear the Global Note
Legend, that do not and are not required to bear the Private Placement Legend and are deposited
with or on behalf of the Depositary and registered in the name of the Depositary or its nominee.
“U.S. Government Obligations” shall have the meaning assigned to such term in Section
12.01.
“U.S. Person” means a U.S. person as defined in Rule 902(k) under the Securities Act.
“VAT Cash Proceeds” means VAT Proceeds in U.S. Dollars or a currency freely
convertible into U.S. Dollars (including any cash payments received upon the disposition or
conversion of non-cash VAT Proceeds but only as and when received).
“VAT Claim” means the claim of TFM against the Mexican Government for refund of a
value added tax payment and a related value added tax certificate in the original amount of
2,111,111,790 Mexico pesos, including amounts payable pursuant to the October 11, 2002 judgment, or
any similar subsequent judgment, by the Tribunal Colegiado en Materia Administrativa del Primer
Circuito in favor of TFM related to such claim.
“VAT Proceeds” means the amount (whether in cash or other property) of:
(a) any dividends or distributions received by the Company or any Restricted Subsidiary from
Grupo TFM or TFM (or any successor of either of them) on or after the date on which TFM (or its
successor) receives any proceeds from the Mexican Government in connection with the VAT Claim, less
the amount of all foreign, Federal, state and local taxes payable by the Company or any Restricted
Subsidiary as a direct consequence of the receipt of amounts in respect of the VAT Claim or the
payment of any such dividend or distribution) (referred to herein as “group-level taxes”);
provided, that the amount of VAT Proceeds shall be limited to (A) the product of (1) the Company’s
and its Restricted Subsidiaries’ percentage economic interest in Grupo TFM and TFM at the time such
proceeds are received by TFM or at the time such dividends or distributions are made, whichever is
greater, and (2) (x) such proceeds (net of the amount of legal, accounting, advisors’ and other
fees and expenses payable by the Company, Grupo TFM or TFM in connection with the VAT Claim
(provided that for such netting purposes the amount of legal, accounting, advisors’ and other fees
of the Company shall not exceed $1,250,000) and all foreign, Federal, state and local taxes payable
as a direct consequence of the receipt by TFM of amounts in respect of the VAT Claim, including in
24
connection with the payment of such dividends or distributions by Grupo TFM or TFM) less (B)
the sum of (x) the amount of any group-level taxes deducted from VAT Proceeds pursuant to this
clause, (y) the amount of any proceeds described in clause (b) below and (z) any Offset Amount
(such amount being referred to herein as the “Maximum VAT Amount”); and
(b) any proceeds otherwise received by the Company or any Restricted Subsidiary from the
Mexican Government in respect of the VAT Claim, less the amount of all foreign, Federal, state and
local taxes payable by the Company or any Restricted Subsidiary as a direct consequence of the
receipt of such proceeds.
There shall be no duplication of any taxes that are otherwise deducted pursuant to the preceding
sentence. VAT Proceeds shall be in addition to, and not in lieu of or in substitution for, any Net
Cash Proceeds under clause (iii)(y) of the definition of “GTFM Disposition” that may be calculated
based on dividends or distributions by Grupo TFM or TFM to the Company or any Restricted
Subsidiary. In the event that Grupo TFM or TFM has received proceeds with respect to the VAT Claim
and a GTFM Disposition covered by clause (iii)(y) of the definition of “GTFM Disposition” has also
occurred, then dividends or distributions received by the Company or any Restricted Subsidiary from
Grupo TFM or TFM shall be deemed to be VAT Proceeds until the Maximum VAT Amount has been reached.
“Volume Weighted Average Price” means, for any security as of any date, the dollar
volume-weighted average price in Dollars for such security on the Principal Market during the
period beginning at 9:30 a.m. New York time (or such other time as the Principal Market publicly
announces is the official open of trading), and ending at 4:00 p.m. New York time (or such other
time as the Principal Market publicly announces is the official close of trading) as reported by
Bloomberg Financial Markets (“Bloomberg”) through its “Volume at Price” functions, or, if
the foregoing does not apply, the dollar volume-weighted average price in Dollars of such security
in the over-the-counter market on the electronic bulletin board for such security during the period
beginning at 9:30 a.m. New York time (or such other time as the over-the-counter market publicly
announces is the official open of trading), and ending at 4:00 p.m. New York time (or such other
time as the over-the-counter market publicly announces is the official close of trading), as
reported by Bloomberg, or, if no dollar volume-weighted average price is reported for such security
by Bloomberg for such hours, the average of the highest closing bid price and the lowest closing
ask price, each in Dollars, of any of the market makers for such security as reported in the “pink
sheets” by the National Quotation Bureau, Inc.
“Voluntary Reduction” shall have the meaning assigned to such term in Section
3.01(c)(iv).
“Wholly Owned Subsidiary” of any Person shall mean any Subsidiary of such Person of
which all of the shares of Capital Stock (except directors’ qualifying shares) are at the time
directly or indirectly owned by such Person, by one or more Wholly Owned Subsidiaries of such
Person or by such Person and one or more of its Wholly Owned Subsidiaries.
SECTION 1.02 COMPLIANCE CERTIFICATES AND OPINIONS. Upon any application or request by the Company to the Trustee to take any action under any
provision of this Indenture, the Company shall furnish to the Trustee an Officers’ Certificate
stating that all
25
conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with and an Opinion of Counsel stating that, in the opinion of
such counsel, all such conditions precedent, if any, have been complied with, except that in the
case of any such application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such particular application or
request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture shall include:
(1) a statement that each individual signing such certificate or opinion has read such
covenant or condition and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has made such
examination or investigation as is necessary to enable him to express an informed opinion as
to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such individual, such condition
or covenant has been complied with.
SECTION 1.03 FORM OF DOCUMENTS DELIVERED TO TRUSTEE. In any case where several
matters are required to be certified by, or covered by an opinion of, any specified Person, it is
not necessary that all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one such Person may
certify or give an opinion with respect to some matters and one or more other such Persons as to
other matters, and any such Person may certify or give an opinion as to such matters in one or
several documents.
Any certificate, statement or opinion of an officer of the Company may be based, insofar as it
relates to legal matters, upon a certificate or opinion of or representations by counsel, unless
such officer knows, or in the exercise of reasonable care should know, that the certificate or
opinion or representations with respect to the matters upon which such officer’s certificate,
statement or opinion is based are erroneous. Any certificate, statement or Opinion of Counsel may
be based, insofar as it relates to factual matters, upon a certificate, statement or opinion of or
representations by an officer or officers of the Company stating that the information with respect
to such factual matters is in the possession of the Company, unless such counsel knows, or in the
exercise of reasonable care should know, that the certificate, statement or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more applications, requests,
consents, certificates, statements, opinions or other instruments under this Indenture, they may,
but need not, be consolidated and form one instrument.
26
SECTION 1.04 NOTICES, ETC. TO TRUSTEE AND COMPANY. Any request, demand,
authorization, direction, notice, consent, waiver or act of Holders or other document provided or
permitted by this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be made, given, furnished or filed in
writing and hand delivered, mailed, first class, postage prepaid, or sent by facsimile transmission
to or with the Trustee at the principal office of the Trustee located at 000 Xxxxxxx Xxxxxx, Xxxxx
00X, Xxx Xxxx, Xxx Xxxx 00000, Attention: Global Finance Unit, telephone number (000) 000-0000,
facsimile number (000) 000-0000/5803, or at any other address previously furnished in writing to
any Holder or to the Company by the Trustee, and unless otherwise herein expressly provided, any
such document shall be deemed to be sufficiently made, given, furnished or filed upon its receipt
by a Responsible Officer of the Trustee, provided, that if receipt of any facsimile transmission is
not confirmed in writing or by facsimile by the Trustee, a copy of such transmission shall be
delivered by hand or mailed, first class, postage prepaid, to the Trustee, or
(2) the Company by the Trustee or by any Holder shall be made, given furnished or filed in
writing and hand delivered, mailed, first class, postage prepaid, or sent by facsimile transmission
to or with the Company addressed to it at Xxxxxxx xx xx Xxxxxxx, Xx. 0000, Xxxxxxx Xxxxxxx xxx
Xxxxxxxx, 00000 Xxxxxx, D.F., Attention: Chief Financial Officer, telephone number (000)
00-00-0000-0000, facsimile number (000) 00-00-0000-0000, at the office maintained by the Company
pursuant to Section 5.02 hereof or at any other address previously furnished in writing to the
Trustee by the Company, provided, that if receipt of any facsimile transmission is not confirmed in
writing or by facsimile by the Company, a copy of such transmission shall be delivered by hand or
mailed, first class, postage prepaid, to the Company.
SECTION 1.05 NOTICE TO HOLDERS; WAIVER.
(a) Where this Indenture provides for notice to Holders of Notes of any event, such notice
shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed,
first class, postage prepaid, to each Holder of a Note affected by such event at the address of
such Holder as it appears in the Note Register, not later than the latest date and not earlier than
the earliest date prescribed for the giving of such notice, and in the event of suspension of
regular mail service or for any other reason it shall be impracticable to give such notice to
Holders of Notes by mail, then such notification to Holders of Notes shall be made in the manner
specified in Section 1.05(b) and such notification shall constitute sufficient notification for
every purpose hereunder. In any case where notice to Holders of Notes is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder of a Note shall affect the sufficiency of such notice with respect to other
Holders of Notes or the sufficiency of any notice by publication to Holders of Notes given as
provided in Section 1.05(b). In computing any time period for the mailing or giving of notice of
any event hereunder, the computation shall be made by counting back or forward, as appropriate,
from the date of the event in question, without counting the date of such event but counting as a
full day the ending date of such period no matter when notice was mailed or given on such ending
date.
27
(b) In case by reason of the suspension of regular mail service or by reason of any other
cause it shall be impracticable to give such notice by mail, then such notification as shall be
made with the approval of the Trustee shall constitute a sufficient notification for every purpose
hereunder.
(c) Where this Indenture provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after the event, and such
waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity of any action taken
in reliance upon such waiver.
SECTION 1.06 CONFLICT WITH TRUST INDENTURE ACT. If any provision hereof limits,
qualifies or conflicts with (i) another provision hereof which is required to be included in this
Indenture by any provision of the Trust Indenture Act, or (ii) any provision of the Trust Indenture
Act, such required provision or such provision of the Trust Indenture Act, as the case may be,
shall control. If any provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the former provision shall be deemed to apply or
be excluded, as the case may be, to or from this Indenture. Until such time as this Indenture
shall be qualified under the Trust Indenture Act, this Indenture, the Company, the Guarantors and
the Trustee shall be deemed for all purposes hereof to be subject to and governed by the Trust
Indenture Act to the same extent as would be the case if this Indenture were so qualified on the
date hereof.
SECTION 1.07 EFFECT OF HEADINGS AND TABLE OF CONTENTS. The Article and Section
headings herein and the Table of Contents are for convenience only and shall not affect the
construction hereof.
SECTION 1.08 SUCCESSORS AND ASSIGNS. All covenants and agreements in this
Indenture by the Company shall bind its successors and assigns, whether so expressed or not.
SECTION 1.09 SEPARABILITY CLAUSE. In case any provision in this Indenture or in
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.
SECTION 1.10 BENEFITS OF INDENTURE. Nothing in this Indenture or in the Notes,
express or implied, shall give to any Person, other than the parties hereto and their successors
hereunder and the Holders, any benefit or any legal or equitable right, remedy or claim under this
Indenture.
SECTION 1.11 GOVERNING LAW. This Indenture, the Guarantees and the Notes shall be
governed by, construed and enforced in accordance with the laws of the State of New York, without
regard to the conflict of laws principles thereof.
SECTION 1.12 SUBMISSION TO JURISDICTION. Each of the parties to this Indenture
hereby irrevocably submits to the jurisdiction of any New York State or Federal court sitting in
the Borough of Manhattan in The City of New York in any action or proceeding arising out of or
relating to the Notes, the Guarantees, this Indenture or the Collateral
28
Documents, and all such
parties hereby irrevocably agree that all claims in respect of such action or proceeding may be
heard and determined in such New York State or Federal court and hereby irrevocably waive, to the
fullest extent that they may legally do so, the defense of an inconvenient forum to the maintenance
of such action or proceeding. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES, THE GUARANTEES, THE COLLATERAL DOCUMENTS
OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 1.13 LEGAL HOLIDAYS. In any case where any Interest Payment Date,
Redemption Date or Stated Maturity of any Note shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the Notes) payment of the
principal of, premium, if any, interest, if any, or Additional Amounts, if any, on such Note need
not be made at such Place of Payment on such date, but may be made on the next succeeding Business
Day at such Place of Payment with the same force and effect as if made on the Interest Payment Date
or Redemption Date, or at the Stated Maturity, provided, that no additional interest shall accrue
with respect to the payment due on such date for the period from and after such Interest Payment
Date, Redemption Date or Stated Maturity, as the case may be.
SECTION 1.14 APPOINTMENT OF AGENT FOR SERVICE. By the execution and delivery of
this Indenture, the Company hereby appoints CT Corporation System as its authorized agent upon
which process may be served in any legal action or proceeding which may be instituted in any
Federal or State court in the Borough of Manhattan, The City of New York, arising out of or
relating to the Notes or this Indenture, but for that purpose only. Service of process upon such
agent at the office of such agent at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and written notice of
said service to the Company by the Person serving the same addressed as provided by Section 1.04,
shall be deemed in every
respect effective service of process upon the Company in any such legal action or proceeding.
Such appointment shall be irrevocable so long as the Holders of Notes shall have any rights
pursuant to the terms thereof or of this Indenture until the appointment of a successor by the
Company with the consent of the Trustee and such successor’s acceptance of such appointment. Each
of the Company and the Guarantors further agree to take any and all actions, including the
execution and filing of any and all such documents and instruments, as may be necessary to continue
such designation and appointment of such agent or successor.
SECTION 1.15 COUNTERPART ORIGINALS. The parties may sign any number of copies of
this Indenture. Each signed copy shall be an original, but all of them together represent the same
agreement.
ARTICLE TWO
NOTE FORMS
SECTION 2.01 FORMS GENERALLY. (a) General. The Notes and the Trustee’s
certificate of authentication shall be in substantially the forms set forth in this Article, with
such appropriate insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture and may have such letters, numbers or other marks of identification
29
and
such legends or endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the officers executing such
Notes as evidenced by their execution of the Notes. Any such legend or endorsement shall be
delivered in writing to the Trustee by the Company.
The Definitive Notes shall be printed, lithographed or engraved on steel engraved borders or
may be produced in any other manner permitted by the rules of any securities exchange on which the
Notes may be listed, all as determined by the officers executing such Notes, as evidenced by their
execution of such Notes.
The terms and provisions contained in the Notes shall constitute, and are hereby expressly
made, a part of this Indenture and the Company, the Guarantors and the Trustee, by their execution
and delivery of this Indenture, expressly agree to such terms and provisions and to be bound
thereby. However, to the extent any provision of any Note conflicts with the express provisions of
this Indenture, the provisions of this Indenture shall govern and be controlling.
(b) Initial Private Notes. During any such time as the Shelf Registration Statement
shall be effective, the Initial Private Notes may be sold or transferred pursuant to such Shelf
Registration Statement. During any such time as the Shelf Registration Statement shall not be
effective, the Initial Private Notes may be sold only to (i) QIBs in reliance on Rule 144A, (ii)
Institutional Accredited Investors in reliance on exemptions from the registration requirements of
the Securities Act, (iii) Non-U.S. Persons in reliance on Regulation S or (iv) pursuant to another
exemption from the registration requirements of the Securities Act (based upon an Opinion of
Counsel if requested by the Company), subject in each case to the restrictions on transfer set
forth herein.
The Initial Private Notes will be issued in the form of Restricted Global Notes, in each case
without interest coupons and with the Global Note Legend and Private Placement Legend set forth in
Section 2.02 hereto. Such Initial Private Notes will be deposited on behalf of the Holders thereof
with the Custodian, and registered in the name of DTC or a nominee of the DTC, duly executed by the
Company and authenticated by the Trustee as provided in this Indenture. Beneficial interests in
the Regulation S Global Note may be held only through Euroclear and Clearstream (as indirect
participants in DTC) and will not be exchangeable for interests in the IAI Global Note or a
Definitive Note without a legend containing restrictions on transfer of such Note prior to the
expiration of the Distribution Compliance Period and then only upon (x) certification in form
reasonably satisfactory to the Trustee that beneficial interests in such Regulation S Global Note
are owned either by Non-U.S. Persons or U.S. Persons who purchased such interests in a transaction
that did not require registration under the Securities Act and (y) in the case of an exchange for a
Definitive Note, in compliance with Section 3.08 hereof. The aggregate principal amount of the
Global Notes may from time to time be increased or decreased by adjustments made on the records of
the Trustee and the Depositary or its nominee as hereinafter provided.
(c) Book-Entry Provisions. Upon their original issuance, each Note shall be issued in
the form of one or more Notes in global form (“Global Notes”) registered in the name of DTC, as
Depositary, or its nominee and deposited with the Trustee, as custodian for DTC, for
30
credit by DTC
to the respective accounts of beneficial owners of the Notes represented thereby (or such other
accounts as they may direct).
(d) Definitive Notes. Except as provided in this Section 2.01, Section 3.04 or
Section 3.08 hereof, owners of beneficial interests in Global Notes shall not be entitled to
receive physical delivery of Definitive Notes.
SECTION 2.02 FORM OF FACE OF NOTE. [IF THE NOTE IS A RESTRICTED GLOBAL NOTE, THEN
INSERT: THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT
OF 1933 (THE “SECURITIES ACT”) AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT (A) (1) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER
WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A,
(2) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE
SECURITIES ACT, (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY
RULE 144 THEREUNDER (IF AVAILABLE), (4) TO AN INSTITUTIONAL ACCREDITED INVESTOR IN A TRANSACTION
EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, (5) IN ACCORDANCE WITH ANOTHER
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (BASED UPON AN OPINION OF
COUNSEL IF THE COMPANY SO REQUESTS) OR (6) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT AND (B) IN ACCORDANCE WITH ALL APPLICABLE BLUE SKY LAWS OF THE STATES
OF THE UNITED STATES.]
[IF THE NOTE IS A GLOBAL NOTE, THEN INSERT: THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF
THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE
THEREOF. THIS NOTE MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A NOTE REGISTERED, AND NO TRANSFER
OF THIS NOTE IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH
DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.]
[IF THE NOTE IS A GLOBAL NOTE AND THE DEPOSITORY TRUST COMPANY IS TO BE THE DEPOSITARY
THEREFOR, THEN INSERT: UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY
31
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.]
Grupo Tmm, S.A.
Senior Secured Note due 2007
NO.
Grupo Tmm, S.A., a corporation duly organized and existing under the laws of the
United Mexican States (herein called the “Company”, which term includes any successor Person under
the Indenture hereinafter referred to), for value received, hereby promises to pay to , or
its registered assigns, the principal sum of Dollars [IF THIS NOTE IS A GLOBAL NOTE, THEN
INSERT: , or such other principal amount as may be set forth in the records of the Trustee in
accordance with the Indenture,] on August 1, 2007 (subject to extension to August 1, 2008 as
provided in the Indenture), and to pay interest thereon in cash from the Initial Issuance Date, or
from the most recent Interest Payment Date for which interest has been paid or duly provided for,
or, if the date hereof is after a Regular Record Date and before the following Interest Payment
Date, then from such following Interest Payment Date, semiannually on February 1 and August 1 in
each year, commencing February 1, 2005, at the rate of 101/2% per annum (subject to reduction or
increase as provided in the Indenture), until the principal hereof is paid or made available for
payment.
On each Interest Payment Date occurring on or prior to August 1, 2007, the Company may elect
to pay interest due on such Interest Payment Date in cash and through the issuance of (i)
Additional Notes, in denominations of $1.00 and integral multiples thereof, or (ii) ADSs of the
Company, having a value equal to the interest due (in excess of the portion of such interest paid
in cash at the Cash Interest Rate), which ADSs shall be issued at a 5% discount to the 20 trading
day Volume Weighted Average Price per ADS, or any combination thereof, in each case as more fully
set forth in the Indenture; provided, that, in the event the Company elects to pay any portion of
the interest in Additional Notes or ADSs on any Interest Payment Date as provided herein, it shall
pay cash interest on such Interest Payment Date at the interest rate of 2% per annum or such
higher rate as the Company may elect with respect to such Interest Payment Date. In the event the
Company elects to pay any portion of the interest due on any Interest Payment Date other than in
cash, the annual interest rate applicable for such Interest Payment Date shall be as set forth
below:
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Interest Payment Date |
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Applicable Interest Rate |
February 1, 2005 |
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12.00% |
August 1, 2005 |
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12.00% |
February 1, 2006 |
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12.00% |
August 1, 2006 |
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12.00% |
February 1, 2007 |
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12.50% |
August 1, 2007 |
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13.00% |
32
This annual interest rate payable on the Notes will decrease in the event the Company redeems,
repays, repurchases or otherwise retires or offers to repurchase (provided the Company purchases
all Notes validly tendered in accordance with the terms of such offer to repurchase (or a prorated
amount thereof in accordance with the terms of such offer to repurchase)), the respective principal
amount of Notes set forth below, in each case pursuant to the provisions of Section 3.01(c)(iv) of
the Indenture:
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Voluntary Reduction Amount |
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Interest Rate Reduction |
Less than $100,000,000
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0.00 |
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$100,000,000 up to $150,000,000
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0.67 |
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more than $150,000,000
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1.00 |
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; provided that such interest rate reduction shall not be more than 1.00% per annum in the
aggregate.
The Company will provide notice to the Trustee of any event giving rise to an interest rate
reduction, the amount of any interest rate reduction and the effective date of any interest rate
reduction as specified in the Indenture. Following an Event of Default, the rate at which the
Notes accrue interest shall increase by 2.00% per annum. In addition, following an Event of
Default, any unpaid interest and Additional Amounts, if any, will accrue interest at the Default
Rate until such time as full payment is made thereon.
In the event the Company exercises its option to extend the maturity date of the Notes to
August 1, 2008 as provided in the Indenture, the interest rate shall be 12% per annum
during such extended term (subject to reduction as described above), and such interest shall
be payable quarterly, in advance, on August 1, 2007, November 1, 2008, February 1, 2008 and May 1,
2008, and only in cash, as provided in the Indenture.
The interest payable pursuant to this Note, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this
Note (or one or more Predecessor Notes) is registered at the close of business on the Regular
Record Date for such interest, which shall be the January 15 or July 15 (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date or July 15, 2007, October 15,
2007, January 15, 2008 and April 15, 2008 if the Company makes the Extension Election. Any such
interest not so punctually paid or duly provided for will forthwith cease to be payable to the
Holder on such Regular Record Date and may either be paid to the Person in whose name this Note (or
one or more Predecessor Notes) is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Company, notice whereof shall be given to
Holders of Notes not less than 10 days prior to such Special Record Date, or be paid at any time in
any other lawful manner not inconsistent with the requirements of any securities exchange on which
the Notes may be listed and upon such notice as may be required by such exchange, all as more fully
provided in such Indenture.
Payment of the principal of (and premium, if any), cash interest and Additional Amounts, if
any, on this Note will be made at the office or agency of the Company maintained for that purpose
in New York, New York, in such coin or currency of the United States of
33
America as at the time of
payment is legal tender for payment of public and private debts; or at the option of the Company
payment of cash interest and Additional Amounts, if any, may be made by check mailed to the address
of the Person entitled thereto as such address shall appear in the Note Register; provided that any
Holder of more than $2 million in aggregate principal amount of Notes that has so elected and given
wire transfer instructions to the Company shall be entitled to receive all payments of principal
and interest and Additional Amounts with a Regular Record Date after the date the Company receives
such notice with respect to Notes held by such Holders by wire transfer of immediately available
funds within the United States to the accounts specified by the Holders thereof. Until otherwise
designated by the Company, the Company’s office or agency in New York will be the office of the
Trustee maintained for such purpose. The Notes will be issued in denominations of $1.00 and
integral multiples thereof. Such payment shall be 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.
Initially, The Bank of New York, the Trustee under the Indenture, will act as Paying Agent and
Note Registrar. The Company may change any Paying Agent or Note Registrar without notice to any
Holder. The Company or any of its Subsidiaries may act in any such capacity.
[IF THIS NOTE IS A GLOBAL NOTE, INSERT: Partial payment of interest in Additional Notes or
ADRs shall be made by deposit of such Additional Notes or ADRs with the Custodian for DTC.] [IF
THIS NOTE IS A DEFINITIVE NOTE, INSERT: Partial payment of interest in Additional Notes or ADRs
shall be made by delivering certificates representing such Additional Notes or ADRs to the address
of the Holder entitled to receive the same as shown on the Note Register.]
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.
Unless the certificate of authentication hereon has been executed by the Trustee referred to
on the reverse hereof by manual signature, this Note shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.
In Witness Whereof, the Company has caused this instrument to be duly executed.
DATED:
ATTEST:
34
SECTION 2.03 FORM OF REVERSE OF NOTE. This Note is one of a duly authorized issue of
Notes of the Company designated as its Senior Secured Notes due 2007 (herein called the
“Notes”), limited in aggregate principal amount to $508,703,356, except for Additional
Notes and Notes issued pursuant to Sections 3.04, 3.08, 3.09, 4.08, 5.16, 5.18 and 10.06 of the
Indenture, issued under an Indenture, dated as of August 11, 2004 (herein called the
“Indenture”), by and among the Company, the Guarantors and The Bank of New York, as trustee
(herein called the “Trustee,” which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for
a statement of the respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Guarantors, the Trustee and the Holders of the Notes and of the terms upon which
the Notes are, and are to be, authenticated and delivered.
The Company hereby further agrees, subject to the limitations and exceptions set forth below,
that if any deduction or withholding for any present or future taxes, duties, levies, imposts,
assessments or other governmental charges of the United Mexican States (or any political
subdivision or taxing authority thereof or therein) shall at any time be required by such
jurisdiction or any such political subdivision or taxing authority (or by the jurisdiction of
incorporation, seat of management or residence for tax purposes of any successor to the Company (a
“Successor Jurisdiction”)) in respect of any amounts to be paid by the Company under the
Notes (“Taxes”), then, unless the Company pays the amount of such deduction or withholding
directly to the Mexican Government, or is entitled to a credit against such payment, the Company
will pay in cash to the Holder of a Note such additional amounts (“Additional Amounts”) as
may be necessary in order that the net amounts paid to the Holder of such Note who, with respect to
any such Tax after such deduction or withholding (including any withholding or deduction imposed on
Additional Amounts), shall be not less than the amounts specified in such Note to which such Holder
would have received if such Taxes had not been withheld or deducted; provided, however, that the
Company shall not be required to make any payment of Additional Amounts for or on account of:
(a) any Tax, which would not have been imposed but for (i) the existence of any present or
former connection between such Holder (or between a fiduciary, settlor, beneficiary, member or
shareholder of, or possessor of a power over, such Holder, if such Holder is an estate, trust,
partnership or corporation) and the taxing jurisdiction or any political subdivision or territory
or possession thereof or area subject to its jurisdiction, including, without limitation, such
Holder (or such fiduciary, settlor, beneficiary, member, shareholder or possessor) being or having
been a citizen or resident thereof or being or having been present or engaged in trade or business
therein or having or having had a permanent establishment therein or (ii) the presentation of a
Note (where presentation is required) for payment on a date more than 30 days after the date on
which such payment became due and payable or the date on which payment thereof is duly provided
for, whichever occurs later;
(b) any estate, inheritance, gift, sale, transfer, personal property or similar tax,
assessment or other governmental charge;
(c) any Tax, which is payable otherwise than by withholding from payments of (or in respect
of) principal of or interest on the Notes;
35
(d) any Tax, that is imposed or withheld by reason of the failure to comply by the Holder or
the beneficial owner of a Note with a written request of the Company addressed to the Holder
furnished at least 60 days prior to the first payment date with respect to which the Company
applies this clause (d) (or in the event of any subsequent change in any such requirement at least
60 days prior to the first payment date for which such change is effective)
(i) to provide information, documents and other evidence concerning the nationality, residence
or identity of the Holder or such beneficial owner or (ii) to make and deliver any declaration or
other similar claim (other than a claim for refund of a Tax, withheld by the Company) or satisfy
any information or reporting requirement, which, in the case of (i) or (ii), is required or imposed
by a statute, treaty, regulation or administrative practice of the taxing jurisdiction as a
precondition to exemption from all or part of such tax, assessment or other governmental charge; or
(e) any combination of items (a), (b), (c) and (d);
nor shall Additional Amounts be paid with respect to any payment of the principal of or interest on
any Note to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of
such payment to the extent such payment would be required by the laws of the jurisdiction (or any
political subdivision or taxing authority thereof or therein) to be included in the income for tax
purposes of a beneficiary or settlor with respect to such fiduciary or a member of such partnership
or a beneficial owner who would not have been entitled to such Additional Amounts had it been the
Holder of the Note.
Notwithstanding the foregoing, the limitations on the Company’s obligation to pay Additional
Amounts set forth in clause (d) above will not apply if:
(i) the provision of information, documentation or other evidence described in such
clause (d) would be materially more onerous, in form, in procedure or in the substance of
information disclosed, to a Holder or beneficial owner of a Note than comparable information
or other reporting requirements imposed under United States tax law (including the United
States — Mexico Income Tax Treaty), regulation and administrative practice (such as Internal
Revenue Service Forms W-8 and W-9); or
(ii) Rule 3.28.8 issued by the Secretaría de Hacienda y Crédito Público (Ministry of
Finance and Public Credit) on April 30, 2004 or a substantially similar successor of such
rule is in effect, unless (a) the provision of the information, documentation or other
evidence described in clause (d) is expressly required by statute, regulation, ruling or
administrative practice in order to apply Rule 3.28.8 (or successor rule), the Company
cannot obtain such information, documentation or other evidence on its own through
reasonable diligence and the Company otherwise would meet the requirements for application
of Rule Rule 3.28.8 (or successor rule) or (b) in the case of a Holder or beneficial owner
of a Note that is a pension fund or other tax-exempt organization, payments to such Holder
or beneficial owner would be subject to Taxes at a rate less than that provided by Rule Rule
3.28.8 (or successor rule) if the information, documentation or other evidence required
under clause (d) above were provided.
36
In addition, clause (d) above shall be construed to require that a non-Mexican pension or
retirement fund or other Holder or beneficial owner of a Note register with the Ministry of Finance
and Public Credit of Mexico for the purpose of establishing eligibility for an exemption from or
reduction of Taxes.
The Company shall make any required withholding or deduction and remit the full amount
deducted or withheld to the appropriate taxing authority, as and when required by applicable law.
The Company shall furnish to the Trustee, within 30 days after the date the payment of any Taxes is
due, evidence of such payment by the Company. The Company shall deliver copies of such evidence to
Holders of the Notes or the Paying Agent upon request.
The Company shall pay any present or future stamp, court, documentary or other similar Taxes,
charges or levies that arise in the United Mexican States or any of its political subdivisions (or
any Successor Jurisdiction) from the execution, delivery, registration of, or enforcement of rights
under, the Notes, the Guarantees, this Indenture or the Collateral Documents.
The Notes may be redeemed at the option of the Company in whole but not in part at any time,
upon not less than 30 days’ nor more than 60 days’ notice by mail, at a Redemption Price equal to
the principal amount thereof plus accrued and unpaid interest and Additional Amounts, if any, to
the date fixed for redemption if, as a result of any change in or amendment to the laws or any
regulations or rulings promulgated thereunder of the Mexican Government (or of any political
subdivision or taxing authority thereof or therein) or any change in the official application or
interpretation of such laws, regulations or rulings, or any change in the official application or
interpretation of, or any execution of or amendment to, any treaty or treaties affecting taxation
to which the Mexican Government (or such political subdivision or taxing authority) is a party,
which becomes effective on or after the Initial Issuance Date, the Company is or would be required
on the next succeeding Interest Payment Date to pay additional amounts with respect to the Notes at
a rate in excess of that in effect at the Initial Issuance Date, and the payment of such Additional
Amounts cannot be avoided by the use of any reasonable measures available to the Company. The
Company will also pay to the Holders on the Redemption Date any Additional Amounts which would
otherwise be payable.
The Notes are subject to redemption upon not less than 30 days’ nor more than 60 days’ notice
by mail at any time, in whole or from time to time in part, at the election of the Company, at a
Redemption Price equal to (i) 100% of the principal amount thereof, plus accrued and unpaid
interest and Additional Amounts, if any, to the Redemption Date, until such time as the Company
shall have previously repaid, redeemed or otherwise retired $150,000,000 in aggregate principal
amount of the Notes, and thereafter (ii) 101% of the principal amount of the Notes, plus accrued
and unpaid interest and Additional Amounts, if any, to the Redemption Date. In the case of any
redemption pursuant to this paragraph, interest installments whose Stated Maturity is on or prior
to the applicable Redemption Date will be payable to the Holders of such Notes, or one or more
Predecessor Notes, of record at the close of business on the relevant Record Dates referred to on
the face hereof, all as provided in the Indenture.
37
In the event of redemption of this Note in part only, a new Note or Notes for the unredeemed
portion hereof will be issued in the name of the Holder, or the Person designated by such Holder,
hereof upon the cancellation hereof.
The Indenture provides that, in the event of a Change of Control (as defined in the
Indenture), the Company will be obligated to offer to purchase all of the Notes then outstanding at
a Repurchase Price equal to (i) 100% of the principal amount thereof plus accrued and unpaid
interest and Additional Amounts, if any, thereon to the Repurchase Date, until such time as the
Company shall have previously repaid, redeemed or otherwise retired an aggregate principal amount
of $150,000,000 of the Notes, and thereafter (ii) 101% of the principal amount of the Notes plus
accrued and unpaid interest and Additional Amounts, if any, to the Repurchase Date.
The Indenture provides that, subject to certain conditions, in the event of certain Asset
Dispositions and Qualifying Dispositions and receipt by the Company of VAT Cash Proceeds, the
Company will be obligated to offer to purchase on a pro rata basis Notes at a Repurchase Price
equal to 100% of the principal amount thereof plus accrued interest and Additional Amounts, if any,
thereon to the Repurchase Date, with the Net Cash Proceeds of such Asset Disposition or Qualifying
Disposition or VAT Cash Proceeds.
If an Event of Default shall occur and be continuing, the principal of all the Notes may be
declared due and payable in the manner and with the effect provided in the Indenture.
As provided in the Indenture and subject to the conditions set forth therein, the Company may
terminate all of its obligations under the Notes, except certain specified obligations, 91 days
following the deposit with the Trustee, in trust, of money and/or U.S. Government Obligations
which, through the payment of interest and principal in respect thereof in compliance with their
terms, will provide money in an amount sufficient to pay the principal of, and premium, if any, and
each installment of interest and Additional Amounts, if any, on the Outstanding Notes at maturity
or upon redemption.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and
the modification of the rights and obligations of the Company and the rights of the Holders of the
Notes under the Indenture at any time by the Company and the Trustee with the consent of the
Holders of a majority in aggregate principal amount of the Notes at the time Outstanding. The
Indenture also contains provisions permitting the Holders of specified percentages in aggregate
principal amount of the Notes at the time Outstanding, on behalf of the Holders of all the Notes,
to waive compliance by the Company with certain provisions of the Indenture and certain past
defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of
this Note shall be conclusive and binding upon such Holder and upon all future Holders of this Note
and of any Note issued upon the registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall
alter or impair the obligations of the Company, which are absolute and unconditional, to pay the
principal of (and premium, if any) and interest and Additional
38
Amounts, if any, on this Note at the times, place, and rate, and in the coin or currency,
herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the
transfer of this Note is registrable in the Note Register, upon surrender of this Note for
registration of transfer at the office or agency of the Company in New York, New York, duly
endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company
and the Note Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Notes, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or transferees.
The Notes are issuable only in registered form without coupons in denominations of $1.00 and
any integral multiple thereof. As provided in the Indenture and subject to certain limitations
therein set forth, Notes are exchangeable for a like aggregate principal amount of Notes of a
different authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or exchange, but the
Company may require payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
The Company, the Guarantors, the Trustee and any agent of the Company, the Guarantors, or the
Trustee may treat the Person in whose name this Note is registered as the owner hereof for all
purposes (subject to the provisions on the face hereof), whether or not this Note be overdue, and
neither the Company, the Guarantors, the Trustee nor any such agent shall be affected by notice to
the contrary.
No past, present or future director, officer, employee, agent, attorney-in-fact, incorporator
or stockholder (direct or indirect) of the Company (or any such successor entity), as such, shall
have any liability for any obligations of the Company under the Notes or the Indenture or for any
claim based on, in respect of, or by reason of, such obligations or their creation.
All terms used in this Note which are defined in the Indenture shall have the meanings
assigned to them in the Indenture.
Customary abbreviations may be used in the name of a Holder of a Security or an assignee, such
as: TEN COM (= tenants in common), TEN ENT (tenants by the entireties), JT TEN (=joint tenants with
right of survivorship and not as tenants in common), CUST (=Custodian), and U/G/M/A (=Uniform Gifts
to Minors Act).
Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification
Procedures, the Company has caused CUSIP numbers to be printed on the Notes as a convenience to the
Holders of the Notes. No representation is made as to the accuracy of such numbers as printed on
the Notes and reliance may be placed only on the other identification numbers printed hereon.
39
[ASSIGNMENT FORM]
If you the holder want to assign this Note, fill in the form below:
I or we assign and transfer this Note to
(Print or type assignee’s name, address and zip code and social security number or tax ID number)
and irrevocably appoint
agent to transfer this Note on the books of the Company. The agent may substitute another to act
for him.
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Date:
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Your signature: |
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(Sign exactly as your name appears on the other side of this Note) |
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Signature Guarantee: |
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[If the Note is a Transfer Restricted Security, then insert:
In connection with any transfer of any of the Notes evidenced by this certificate occurring
prior to the expiration of the period referred to in Rule 144(k) under the Securities Act of 1933,
as amended (the “Securities Act”), after the later of the date of original issuance of such Notes
and the last date, if any, on which such Notes were owned by the Company or any Affiliate of the
Company, the undersigned confirms that such Notes are being transferred in accordance with their
terms:
CHECK ONE BOX BELOW
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o to the Company; or |
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o pursuant to an effective registration statement under the Securities Act (including,
but not limited to, a Shelf Registration Statement); or |
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o inside the United States to a “qualified institutional buyer” (as defined in Rule
144A under the Securities Act) that purchases for its own account or for the account of a
qualified institutional buyer to whom notice is given that such
transfer is being made in reliance on Rule 144A, in each case pursuant to and in compliance with Rule
144A under the Securities Act; or
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o to an Institutional Accredited Investor (as defined in Rule 501(a) under the
Securities Act) in a transaction exempt from the registration requirements of the
Securities Act; or |
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o outside the United States in an offshore transaction within the meaning of Regulation
S under the Securities Act in compliance with Rule 903 or Rule 904 under the Securities
Act; or |
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o pursuant to the exemption from registration provided by Rule 144 under the Securities
Act; or |
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o in accordance with another exemption from the registration requirements of the
Securities Act. |
If such transfer is being made pursuant to an offshore transaction in accordance with Rule 904
under the Securities Act, the undersigned further certifies that:
(i) the transfer is not being made to a person in the United States;
(ii) either (a) at the time the buy offer was originated, the transferee was outside the
United States or we and any person acting on our behalf reasonably believed that the transferee was
outside the United States, or (b) the transaction was executed in, on or through the facilities of
a designated off-shore securities market and neither we nor any person acting on our behalf knows
that the transaction has been pre-arranged with a buyer in the United States;
(iii) no directed selling efforts have been made in the United States in contravention of the
requirements of Rule 903(b) or Rule 904(b) of Regulation S, as applicable;
(iv) the transaction is not part of a plan or scheme to evade the registration requirements of
the Securities Act;
(v) if the proposed transfer is being made prior to the expiration of the Distribution
Compliance Period, the transfer is not being made to a U.S. Person (other than a Qualified
Institutional Buyer) or for the account or benefit of a U.S. Person (other than a Qualified
Institutional Buyer);
(vi) we have advised the transferee of the transfer restrictions applicable to the Notes; and
(vii) if the circumstances set forth in Rule 904(b) under the Securities Act are applicable,
we have complied with the additional conditions therein, including (if applicable) sending a
confirmation or other notice stating that the Notes may be offered and sold during the distribution
compliance period specified in Rule 903 of Regulation S, pursuant to registration of the Notes
under the Securities Act or pursuant to an available exemption from the registration requirements
under the Securities Act.
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Unless one of the boxes is checked, the Trustee will refuse to register any of the Notes
evidenced by this certificate in the name of any person other than the registered holder thereof;
provided, however, that if box (3), (4), (5), (6) or (7) is checked, the Trustee will be entitled
to require, prior to registering any such transfer of the Notes, such legal opinions,
certifications and other information as the Company has reasonably requested to confirm that such
transfer is being made pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act, such as the exemption provided by Rule 144 under
the Securities Act.
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Signature Guarantee: |
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Signature must be guaranteed
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Signature
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Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements
of the Note Registrar, which requirements include membership or participation in the Security
Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be
determined by the Note Registrar in addition to, or in substitution for, STAMP, all in accordance
with the Securities Exchange Act of 1934, as amended.
TO BE COMPLETED BY PURCHASER IF (3) OR (4) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this Note for its own account or
an account with respect to which it exercises sole investment discretion and that it and any such
account is (i) a “qualified institutional buyer” within the meaning of Rule 144A under the
Securities Act and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as the undersigned has
requested pursuant to Rule 144A or has determined not to request such information and that it is
aware that the transferor is relying upon the undersigned’s foregoing representations in order to
claim the exemption from registration provided by Rule 144A or (ii) an Institutional Accredited
Investor within the meaning of Rule 501(a) under the Securities Act and is aware that the sale to
it is being made in reliance on exemptions from the registration requirements of the Securities Act
and acknowledges that it has received such information regarding the Company as the undersigned has
requested or has determined not to request such information and that it is aware that the
transferor is relying upon the undersigned’s foregoing representations in order to claim the
exemption from registration provided by exemptions from the registration requirements of the
Securities Act.
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Dated: |
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NOTICE:
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To be executed by an executive officer |
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[FORM OF OPTION OF HOLDER TO ELECT PURCHASE]
If you wish to elect to have this Note purchased by the Company pursuant to Section 5.16
(Repurchase Offer upon a Change of Control) or 5.18 (Excess Cash Proceeds Offer) of the Indenture,
check the box:
/ / Section 5.16 / / Section 5.18
If you wish to elect to have only part of this Note purchased by the Company pursuant to
Section 5.16 or 5.18 of the Indenture, state the amount: $ .
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Date:
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Your signature: |
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(Sign exactly as your name appears on the other side of this Note) |
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Signature Guarantee: |
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SECTION 2.04 FORM OF GUARANTEE
SENIOR SECURED GUARANTEE
For value received, the undersigned Guarantors (as defined in the Indenture referred to in the
Note upon which this notation is endorsed) hereby unconditionally guarantee on a senior secured
basis (such Guarantee by the Guarantor being referred to herein as the “Guarantee”) the due
and punctual payment of the principal of, premium, if any and interest and Additional Amounts, if
any, on the Notes, whether at maturity, by acceleration, call for redemption, upon any Offer or
Excess Cash Proceeds Offer or otherwise, the due and punctual payment of interest on the overdue
principal, premium and interest (including, to the extent lawful and as specified in the Notes,
interest on any overdue interest) and Additional Amounts, if any, on the Notes and the due and
punctual performance of all other obligations of the Company to the Holders or the Trustee, all in
accordance with the terms set forth in Article Fourteen of the Indenture (as defined below). This
Guarantee will become effective in accordance with Article Fourteen of the Indenture and its terms
shall be evidenced therein. The validity and enforceability of any Guarantee shall not be affected
by the fact that it is not affixed to any particular Note.
Capitalized terms used but not defined herein shall have the meanings ascribed to them in the
Indenture dated as of August 11, 2004 among Grupo TMM, S.A., the Guarantors and The Bank of New
York, as Trustee, as amended or supplemented (the “Indenture”).
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The Guarantee shall be governed by and construed in accordance with the laws of the State of
New York without regard to principles of conflicts of laws to the extent that the application of
the laws of another jurisdiction would be required thereby.
The obligations of the Guarantors to the Holders and to the Trustee pursuant to this Guarantee
and the Indenture are expressly set forth in Article Fourteen of the Indenture and reference is
hereby made to such Indenture for the precise terms of this Guarantee.
No past, present or future director, officer, employee, agent, attorney-in-fact, incorporator
or stockholder (direct or indirect) of the Guarantors (or any such successor entity), as such,
shall have any liability for any obligations of the Guarantors under this Guarantee or the
Indenture or for any claim based on, in respect of, or by reason of, such obligations or their
creation.
This is a continuing Guarantee and shall remain in full force and effect and shall be binding
upon the Guarantors and their successors and assigns until full and final payment of all of the
Company’s obligations under the Notes and Indenture or until released or until the Notes are
legally defeased in accordance with the Indenture, and shall inure to the benefit of the successors
and assigns of the Trustee and the Holders, and, in the event of any transfer or assignment of
rights by any Holder or the Trustee, the rights and privileges herein conferred upon that party
shall automatically extend to and be vested in such transferee or assignee, all subject to the
terms and conditions hereof. This is a guarantee of payment and not of collectibility.
This Guarantee shall not be valid or obligatory for any purpose until the certificate of
authentication on the Note upon which this Guarantee is noted shall have been executed by the
Trustee under the Indenture by the manual signature of one of its authorized officers.
The obligations of the Guarantors under this Guarantee shall be limited to the extent
necessary to ensure that it does not constitute a fraudulent conveyance under applicable law.
THE TERMS OF ARTICLE FOURTEEN OF THE INDENTURE ARE INCORPORATED HEREIN BY REFERENCE.
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In Witness Whereof, the Guarantors have caused this instrument to be duly executed.
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ATTEST:
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SECTION 2.05 FORM OF TRUSTEE’S CERTIFICATE OF AUTHENTICATION. The
Trustee’s certificate of authentication on all Notes shall be in substantially the following form:
This is one of the Notes referred to in the within-mentioned Indenture.
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The Bank Of New York, |
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as Trustee |
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By: |
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Authorized Signatory
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SECTION 2.06 REMOVAL OF PRIVATE PLACEMENT LEGEND.
Each Restricted Global Note (and all Notes representing a beneficial interest therein) will
bear the Private Placement Legend set forth in Section 2.02 hereof unless removal is permitted by
the following paragraphs:
(a) Upon any sale or transfer of a Transfer Restricted Security pursuant to Rule 144, the
Trustee, as Custodian, shall make an appropriate endorsement on the Global Notes, whereupon the
Trustee, in accordance with the Applicable Procedures, shall instruct the Depositary or its
authorized representative to make a corresponding adjustment to its records reflecting the transfer
to such transferee of a beneficial interest in the Unrestricted Global Note
of like series, tenor and amount for such transferee’s own account, if the transferor thereof
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certifies in writing to the Depositary that such sale or transfer was made in reliance on Rule 144
(such certification to be in the form set forth on the reverse of the Note).
(b) Upon any sale or transfer of a Transfer Restricted Security pursuant to a Shelf
Registration Statement, the Trustee, as Custodian, shall make an appropriate endorsement on the
Global Notes, whereupon the Trustee, in accordance with the Applicable Procedures, shall instruct
the Depositary or its authorized representative to make a corresponding adjustment to its records
reflecting the transfer to such transferee of a beneficial interest in the Unrestricted Global Note
of like series, tenor and amount for such transferee’s own account.
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ARTICLE
THREE
THE NOTES
SECTION
3.01 TITLE AND TERMS.
(a) The Notes shall be known and designated as the “Senior Secured Notes Due 2007” of the
Company. The aggregate principal amount of Notes which may be authenticated and delivered from
time to time under this Indenture is limited to $508,703,356, except for (i) Additional Notes
issued in payment of interest on the Notes as provided in Section 3.01(c), and (ii) Notes
authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of,
other Notes pursuant to Sections 3.04, 3.08, 3.09, 4.08, 5.16, 5.18 and 10.06.
(b) The Stated Maturity of the principal of the Notes shall be August 1, 2007, unless extended
at the option of the Company as set forth below. At any time on or prior to the 90th
day prior to the then scheduled Stated Maturity, the Company may elect (the “Extension
Election”) to extend the Stated Maturity of the principal of all of the Notes Outstanding from
the then scheduled Stated Maturity to August 1, 2008. In order to validly make the Extension
Election, (i) the Company must provide written notice to the Trustee and the Holders of the
Extension Election not later than 90 days prior to the then scheduled Stated Maturity of the
principal of the Notes, (ii) the Company must pay to the Holders of the Notes a cash fee (the
“Extension Fee”) equal to 4.00% of the principal amount of the Notes Outstanding on August
1, 2007; (iii) the Company must deposit with the Trustee not later than August 1, 2007 an amount in
cash sufficient to pay the interest and Additional Amounts, if any, that would accrue on the Notes
during the first quarterly interest period following such extension (based on the amount of Notes
Outstanding on August 1, 2007); and (iv) no Default or Event of Default shall have occurred and be
continuing on August 1, 2007 or shall occur as a result of the Company making the Extension
Election. The Company shall deliver to the Trustee at the time of such Extension Election an
Officers’ Certificate stating that no Default or Event of Default shall have occurred and be
continuing. The Extension Fee shall be paid together with the installment of interest and
Additional Amounts, if any, due on the Interest Payment Date that occurs on August 1, 2007 to the
Holder of record on the Regular Record Date with respect to such Interest Payment Date.
(c) The Notes shall bear interest at the rate of 10-1/2% per annum, from the Initial Issuance
Date, or from the most recent Interest Payment Date to which interest has been paid or duly
provided for, as the case may be, payable semiannually in arrears on February 1 and August 1 of
each year, commencing February 1, 2005, until the principal thereof is paid or made available for
payment; provided, however, that if the Company makes the Extension Election, (i) the interest rate
payable during the additional one year period of the extended term of the Notes shall be 12.00% per
annum; (ii) the interest that would accrue for the period ending on November 1, 2007 shall be paid,
quarterly in advance, commencing on August 1, 2007, as set forth in Section 3.01(b); and (iii) the
interest due for the remaining term of the Notes shall be paid quarterly in advance on November 1,
2007, February 1, 2008 and May 1, 2008. The interest due on any Interest Payment Date occurring on
or prior to August 1, 2007 other than pursuant to the exercise of the Extension Election shall be
paid as follows:
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(i) The Company may pay any portion of the interest due on such Interest
Payment Date in cash at the rate of 10-1/2% per annum; provided, that the Company
shall be required to pay interest at the rate of at least 2.00% per annum (the
“Minimum Cash Rate”) in cash on each Interest Payment Date (the amount of
interest that the Company pays in cash on any such Interest Payment Date, expressed
as an annual percentage rate, is referred to herein as the “Cash Interest
Rate”).
(ii) On each Interest Payment Date occurring on or prior to August 1, 2007
other than pursuant to the exercise of the Extension Election, the Company may elect
to pay any interest due on such Interest Payment Date in excess of the portion of
such interest paid in cash at the Minimum Cash Rate through the issuance to the
Holders of (x) Additional Notes in a principal amount equal to the amount of
interest due on such Interest Payment Date in excess of the portion of such interest
paid at the Cash Interest Rate, (y) a number of ADSs equal to the quotient of (A)
the interest due on such Interest Payment Date in excess of the portion of such
interest paid at the Cash Interest Rate and (B) the product of (1) 0.95 and (2) the
Volume Weighted Average Price per ADS for the 20 trading days immediately preceding
the Record Date for such Interest Payment Date, or (z) a combination of (x) and (y),
in any such case in an amount equal to the aggregate amount of interest due on such
Interest Payment Date in excess of the portion of such interest paid at the Cash
Interest Rate. In the event that the Company elects to pay any portion of the
interest due on any Interest Payment Date other than in cash as permitted above, the
annual interest rate applicable to the interest due on such Interest Payment Date
shall be the Applicable Rate set forth below minus the Cash Interest Rate for such
Interest Payment Date:
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Applicable Interest Rate |
February 1, 2005
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12.00% |
August 1, 2005
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12.00% |
February 1, 2006
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12.00% |
August 1, 2006
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February 1, 2007
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12.50% |
August 1, 2007
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The Company shall be responsible for the computation of the principal amount of Additional
Notes or the number of ADSs to be issued on any Interest Payment Date and shall certify such amount
or number to the Trustee. To the extent that the computation of the principal amount of Additional
Notes or the number of ADSs to be issued on any Interest Payment Date would result in the issuance
to any Holder of a fractional Additional Note or a fractional ADS, the Company shall, at its
option, either (i) pay cash in respect of such fraction in an amount equal to the principal amount
of such fractional Additional Note or the Volume Weighted Average Price of such fractional ADS, as
applicable, or (ii) round such fractional Additional Note or ADS up to the nearest whole Additional
Note or ADS. In computing the fractional Additional Note or ADS applicable to any Holder, the
interest due on all Notes owned beneficially or of record by such Holder shall be aggregated.
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The Company shall deliver a notice to the Trustee and the Holders of any election to pay any
portion of the interest as provided above in Additional Notes or ADSs on an Interest Payment Date
as provided above at least five Business Days prior to the related Regular Record Date. Such
notice shall specify the types and percentage amounts of the non-cash interest to be paid on such
Interest Payment Date. Any Additional Notes issued in payment of interest shall be delivered to
the Trustee not later than the close of business on the Business Day immediately preceding the
applicable Interest Payment Date and shall be registered in the name of the Holder entitled to
receive such payment of interest. Each such Note shall be dated as of the applicable Interest
Payment Date in respect of which it is issued, shall accrue interest from the applicable Interest
Payment Date in respect of which it is issued, shall be an additional obligation of the Company and
the Guarantors and shall be governed by, and entitled to the benefits of, this Indenture, the
Guarantees and the Collateral Documents on the same terms as the Notes in respect of which such
Additional Notes were issued (except, as the case may be, with respect to the date of issuance and
the principal amount thereof). Any ADSs issued in payment of interest shall be delivered to the
Trustee not later than the close of business on the Business Day immediately preceding the
applicable Interest Payment Date and shall be registered in the name of the Holder entitled to
receive such payment of interest. As a condition to the ability of the Company to elect to issue
ADSs in payment of any portion of the interest due on any Interest Payment Date, the Company shall
have in effect as of such Interest Payment Date a registration statement under the Securities Act
covering the ADSs to be issued or shall provide to the Trustee an Opinion of Counsel to the effect
that no such registration is necessary and that the ADSs to be issued on such Interest Payment Date
will be freely transferable under the Securities Act by any Holder other than an “affiliate” of the
Company.
(iii) Notwithstanding the foregoing, in the event that the Company makes the
Extension Election, (x) the applicable interest rate for each Interest Payment Date
occurring during such extended term shall be 12.00% per annum (subject to reduction
as set forth in clause (iv), below) and (y) all payments of interest due on each
Interest Payment Date occurring during such extended term (including August 1, 2007)
shall be paid quarterly in advance on August 1, 2007, November 1, 2007, February 1,
2008 and May 1, 2008, and only in cash.
(iv) In the event that the Company (A) redeems Notes pursuant to Section 4.01,
(B) offers to repurchase Notes pursuant to Section 5.16 or pursuant to an Excess
Proceeds Offer pursuant to Section 5.18 (and the Company purchases all Notes validly
tendered in accordance with the terms of such offer to purchase (or a prorated
amount thereof in accordance with the terms of such offer to purchase)), or (C)
exchanges Notes pursuant to a Qualifying Exchange (each, a “Voluntary
Reduction”) and the cumulative principal amount of all Voluntary Reductions
after the Initial Issuance Date equals the respective amount set forth below, the
annual interest rate payable on the Notes pursuant to this Section 3.01(c)
(including after the exercise of the Extension Election) shall be reduced by the
applicable amount set forth below:
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Interest Rate Reduction |
less than $100,000,000
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0.00% |
$100,000,000 up to $150,000,000
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0.67% |
more than $150,000,000
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1.00% |
; provided that such interest rate reduction shall not be more than 1.00% per annum in the
aggregate.
Any such interest rate reduction shall become effective at the time the Company redeems,
repays, repurchases or otherwise retires the applicable Voluntary Reduction amount or, in the case
of any offer to purchase pursuant to Section 5.16 or 5.18 or otherwise, at the applicable
Repurchase Date or expiration date (so long as all Notes validly tendered for purchase on such
Repurchase Date or expiration date are purchased pursuant to such offer to purchase); provided,
that if such date occurs on or after the Regular Record Date for any payment of interest, such
interest rate reduction shall become effective on the next Interest Payment Date following the
Interest Payment Date related to such Regular Record Date. In the event of any Voluntary
Reduction, the Company shall give the Trustee an Officers’ Certificate certifying that such
Voluntary Reduction has occurred, that it has complied with the provisions of this Section
3.01(c)(iv), and the amount of the interest rate reduction and the effective date of the interest
rate reduction. The Trustee shall have no duty or responsibility to determine the accuracy or
correctness of this computation and shall be fully protected in relying on such Officers’
Certificate. In the event that any Voluntary Reduction results in an interest rate reduction, the
Trustee shall give notice to all holders of such Voluntary Reduction, the amount of the interest
rate reduction and the effective date of the interest rate reduction.
(d) The principal of (and premium, if any), interest and Additional Amounts, if any, on the
Notes shall be payable at the office or agency of the Company in New York, New York maintained for
such purpose and at any other office or agency maintained by the Company for such purpose; or, at
the option of the Company, payment of interest and Additional Amounts, if any, may be made by check
mailed to the address of the Person entitled thereto as such address shall appear in the Note
Register; provided that any Holder of more than $2 million in aggregate principal amount of Notes
that has so elected and given wire transfer instructions to the Company shall be entitled receive
all payments of principal and interest and Additional Amounts with a Regular Record Date after the
date the Company receives such notice with respect to Notes held by such Holders by wire transfer
of immediately available funds within the United States to the accounts specified by the Holders
thereof. Payment of any non-cash interest through the issuance of Additional Notes or the delivery
of ADRs shall be effected by delivery of the certificates representing such Additional Notes or
ADRs, in the case of any Global Notes, to the Custodian, and, in the case of the Definitive Notes,
to the Holder entitled thereto by mailing such certificates to the address shown on the Note
Register. Until otherwise designated by the Company, the Company’s office or agency in New York
will be the office of the Trustee maintained for such purpose. The Notes will be issued in
denominations of $1.00 and integral multiples thereof. Such payment shall be 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.
Initially, The Bank of New York, the Trustee under the Indenture, will act as Paying Agent and
Note Registrar. The Company may change any Paying Agent or Note Registrar without notice to any
Holder. The Company or any of its Subsidiaries may act in any such capacity. Non-cash interest,
if any, shall be paid by depositing the applicable Additional
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Notes and/or ADRs with the Custodian in the case of Global Notes and by mailing the applicable
Additional Notes and/or ADRs to the address of the Person entitled thereto as such address shall
appear in the Note Register.
(e) The Notes shall be redeemable as provided in Article Four.
(f) The Initial Notes and the Additional Notes shall be treated as a single class for all
purposes under this Indenture.
SECTION 3.02 DENOMINATIONS; PAYMENT CURRENCY. The Notes shall be issuable
only in fully registered form without coupons and only in denominations of $1.00 and any integral
multiple thereof. All cash payments in respect of principal of and premium, if any, and interest
and Additional Amounts on the Notes shall be in United States Dollars.
SECTION 3.03 EXECUTION, AUTHENTICATION, DELIVERY AND DATING. The Notes
shall be signed on behalf of the Company by its Chief Executive Officer, its Director General, its
Chief Operating Officer, or its Chief Financial Officer, and by its Director of Administration, its
Treasurer or any other duly authorized officer. Such signatures may be manual or facsimile
signatures of the present or any future such authorized officers and may be imprinted or otherwise
reproduced on the Notes.
Only such Notes as shall bear a certificate of authentication substantially in the form
hereinbefore recited, manually executed by the Trustee, shall be entitled to the benefits of this
Indenture or be valid or obligatory for any purpose. Such certificate by the Trustee upon any Note
executed by the Company shall be conclusive evidence that the Note so authenticated has been duly
authenticated and delivered hereunder.
Notes bearing the manual or facsimile signatures of individuals who were at any time the
proper officers of the Company and the Guarantors shall bind the Company and the Guarantors,
notwithstanding that such individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Notes or did not hold such offices at the date of such Notes.
At any time and from time to time after the execution and delivery of this Indenture, the
Company may deliver Notes executed by the Company and the Guarantors to the Trustee for
authentication. The Trustee shall thereupon authenticate and deliver such Notes to the Company or
as directed by a Company Order, without any further action by the Company or the Guarantors.
Each Note shall be dated the date of its authentication.
SECTION 3.04 TEMPORARY NOTES. Pending the preparation of definitive Notes, the Company may execute, and, upon compliance
with Section 3.03, the Trustee shall authenticate and deliver, temporary Notes substantially of the
tenor of the Definitive Notes in lieu of which they are issued, which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination, and with such
appropriate insertions,
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omissions, substitutions and other variations as the officers executing
such Notes may determine, as evidenced by their execution of such Notes.
If temporary Notes are issued, the Company will cause Definitive Notes to be prepared without
unreasonable delay. After the preparation of definitive Notes, the temporary Notes shall be
exchangeable for definitive Notes upon surrender of the temporary Notes at the office or agency of
the Company in a Place of Payment. Upon surrender for cancellation of any one or more temporary
Notes, the Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of Definitive Notes of authorized denominations and of like tenor.
Until so exchanged, the temporary Notes shall in all respects be entitled to the same benefits
under this Indenture as definitive Notes.
SECTION 3.05 NOTE REGISTRAR AND PAYING AGENT. The Company shall maintain
an office or agency where Notes may be presented for registration of transfer or for exchange
(“Note Registrar”) and an office or agency where Notes may be presented for payment
(“Paying Agent”). The Note Registrar shall keep a register of the Notes and of their
transfer and exchange (the “Note Register”). The Company may appoint one or more
co-registrars and one or more additional paying agents. The term “Note Registrar” includes
any co-registrar and the term “Paying Agent” includes any additional paying agent. The
Company may change any Paying Agent or Note Registrar without notice to any Holder. The Company
shall notify the Trustee in writing of the name and address of any agent not a party to this
Indenture. If the Company fails to appoint or maintain another entity as Note Registrar or Paying
Agent, the Trustee shall act as such. The Company or any of its Subsidiaries may act as Paying
Agent or Note Registrar.
The Company initially appoints DTC to act as Depositary with respect to the Global Notes.
The Company initially appoints the Trustee to act as the Note Registrar and Paying Agent and
to act as Custodian with respect to the Global Notes.
The Company shall, prior to each Regular Record Date, notify the Paying Agent of any wire
transfer instructions for payments that it receives from Holders.
SECTION 3.06 PAYING AGENT TO HOLD MONEY IN TRUST. The Company shall
require each Paying Agent other than the Trustee to agree in writing that the Paying Agent will
hold in trust for the benefit of Holders or the Trustee all money held by the Paying Agent for the
payment of principal of or interest or Additional Amounts on the Notes, and will notify the Trustee
of any default by the Company in making any such payment. While any such default continues, the
Trustee may require a Paying Agent to pay all money held by it to the Trustee. The Company at any
time may require a Paying Agent to
pay all money held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent
(if other than the Company or a Subsidiary) shall have no further liability for the money. If the
Company or a Subsidiary acts as Paying Agent, it shall segregate and hold in a separate trust fund
for the benefit of the Holders all money held by it as Paying Agent. Upon any bankruptcy or
reorganization proceedings relating to the Company, the Trustee shall serve as Paying Agent for the
Notes.
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SECTION 3.07 HOLDER LISTS. The Trustee shall preserve in as current a
form as is reasonably practicable the most recent list available to it of the names and addresses
of all Holders and shall otherwise comply with Section 312(a) of the Trust Indenture Act. If the
Trustee is not the Note Registrar, the Company shall furnish to the Trustee at least seven Business
Days before each Interest Payment Date and at such other times as the Trustee may request in
writing, a list in such form and as of such date as the Trustee may reasonably require of the names
and addresses of the Holders of Notes and the Company shall otherwise comply with Section 312(a) of
the Trust Indenture Act.
SECTION 3.08 TRANSFER AND EXCHANGE.
(a) Transfer and Exchange of Global Notes. (i) Except as provided in this Section
3.08 and the sections of the Indenture referenced herein, notwithstanding any other provision in
this Indenture, no Global Note may be exchanged in whole or in part for Definitive Notes, and no
transfer of a Global Note in whole or in part may be registered, in the name of any Person other
than the Depositary for such Global Notes or a nominee thereof unless (i) such Depositary or the
Trustee has notified the Company that the Depositary (A) is unwilling or unable to continue as
Depositary for such Global Notes or (B) has ceased to be a clearing agency registered as such under
the Exchange Act, and in either case the Company fails to appoint a successor Depositary within 120
days of such notice, (ii) the Company executes and delivers to the Trustee a Company Order stating
that it elects to cause the issuance of the Notes in definitive form and that all Global Notes
shall be exchanged in whole for Definitive Notes (in which case such exchange shall be effected by
the Trustee) or (iii) there shall have occurred and be continuing an Event of Default with respect
to the Notes. Notwithstanding the foregoing provisions of this Section 3.08(a), Global Notes also
may be exchanged or replaced, in whole or in part, as provided in Sections 3.04 and 3.09 hereof. A
Global Note may not be exchanged for another Note other than as provided in this Section 3.08(a);
however, beneficial interests in a Global Note may be transferred and exchanged as provided in
Section 3.08(b) or (c) hereof.
(b) Transfer and Exchange of Beneficial Interests in the Global Notes. The transfer
and exchange of beneficial interests in the Global Notes shall be effected through the Depositary,
in accordance with the provisions of this Indenture and the Applicable Procedures.
(i) If any Global Note is to be exchanged for other Notes or cancelled in
whole, it shall be surrendered by or on behalf of the Depositary or its nominee to
the Trustee, as Note Registrar, for exchange or cancellation as provided in this
Article Three. If any Global Note is to be exchanged for other Notes or cancelled
in part, or if another Note is to be exchanged in whole or in part for a beneficial
interest in any Global Note, then either (i) such Global Note shall be so
surrendered for exchange or cancellation as provided in this Article Three or (ii)
the principal amount thereof shall be reduced or increased by an amount equal to the
portion thereof to be so exchanged or cancelled, or equal to the principal amount of
such other Note to be so exchanged for a beneficial interest therein, as the case
may be, by means of an appropriate endorsement made on the Global Notes by the
Trustee, as Custodian, whereupon the Trustee, in accordance with the Applicable
Procedures, shall instruct the Depositary or its authorized representative to make a
corresponding adjustment to its records. Upon any such
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surrender or adjustment of a
Global Note, the Trustee shall, as provided in this Article Three, authenticate and
deliver any Notes issuable in exchange for such Global Note (or any portion thereof)
to or upon the order of, and registered in such names as may be directed by, the
Depositary or its authorized representative. Upon the request of the Trustee in
connection with the occurrence of any of the events specified in Section 3.08(a),
the Company shall promptly make available to the Trustee a reasonable supply of
Definitive Notes that are not in the form of Global Notes. The Trustee shall be
entitled to rely upon any order, direction or request of the Depositary or its
authorized representative which is given or made pursuant to this Article Three if
such order, direction or request is given or made in accordance with the Applicable
Procedures and in accordance with all applicable laws. Every Note authenticated and
delivered upon registration of transfer of, or in exchange for or in lieu of, a
Global Note or any portion thereof, whether pursuant to this Article Three or
otherwise, shall be authenticated and delivered in the form of, and shall be, a
Global Note, unless such Note is registered in the name of a Person other than the
Depositary for such Global Note or a nominee thereof.
(ii) The Depositary or its nominee, as registered owner of a Global Note, shall
be the Holder of such Global Note for all purposes under this Indenture and the
Notes and owners of beneficial interests in a Global Note shall hold such interests
pursuant to the Applicable Procedures. Accordingly, any such owner’s beneficial
interest in a Global Note will be shown only on, and the transfer of such interest
shall be effected only through, records maintained by the Depositary or its nominee
or its Participants.
(c) Cancellation and/or Adjustment of Global Notes. At such time as all beneficial
interests in a particular Global Note have been exchanged for Definitive Notes or a particular
Global Note has been redeemed, repurchased or cancelled in whole and not in part, each such Global
Note shall be returned to or retained and cancelled by the Trustee in accordance with Section 3.12
hereof. At any time prior to such cancellation, if any beneficial interest in a Global Note is
exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial
interest in another Global Note or for Definitive Notes, the principal amount of Notes represented
by such Global Note shall be reduced accordingly and an endorsement shall be made on such Global
Note by the Trustee or by the Depositary at the direction of the Trustee to reflect such reduction;
and if the beneficial interest is being exchanged for or transferred to a Person who will take
delivery thereof in the form of a beneficial interest in another Global Note, such other Global
Note shall be increased accordingly and an endorsement
shall be made on such Global Note by the Trustee or by the Depositary at the direction to
reflect such increase.
(d)
General Provisions Relating to Transfers and Exchanges. Subject to the other
provisions of this Indenture regarding restrictions on transfer, and authentication, upon surrender
for registration of transfer of any Note at any office or agency of the Company designated pursuant
to Section 5.02 for such purpose, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one
54
or more new Notes of any
authorized denominations, of a like aggregate principal amount and bearing such restrictive legends
as may be required by this Indenture.
At the option of the Holder, Notes may be exchanged for other Notes of any authorized
denomination and of a like aggregate principal amount and Stated Maturity, upon surrender of the
Notes to be exchanged at such office or agency. Whenever any Notes are so surrendered for
exchange, the Company and the Guarantors shall execute and the Trustee shall authenticate and
deliver, the Notes which the Holder making the exchange is entitled to receive.
All Notes (including the accompanying Guarantees) issued upon any registration of transfer or
exchange of Notes shall be the valid obligations of the Company and the Guarantors, evidencing the
same debt, and entitled to the same benefits under this Indenture, as the Notes (including the
accompanying Guarantees) surrendered upon such registration of transfer or exchange.
Every Note presented or surrendered for registration of transfer or for exchange shall (if so
required by the Company or the Trustee) be duly endorsed, or be accompanied by a written instrument
of transfer in form satisfactory to the Company and the Note Registrar duly executed, by the Holder
thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or exchange of Notes, but the
Company may require payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any registration of transfer or exchange of Notes (other than any
such transfer taxes or similar governmental charge payable upon exchange or transfer pursuant to
Sections 3.04, 4.08, 5.16, 5.18 and 10.06 hereof).
Neither the Company nor the Trustee nor any agent of either shall be required (i) to issue,
authenticate, register the transfer of or exchange any Note during a period beginning at the
opening of business 15 days before the day of the mailing of a notice of redemption hereunder and
ending at the close of business on the day of the mailing of a notice of redemption of Notes
selected for redemption, or (ii) to register the transfer of or exchange any Note so selected for
redemption in whole or in part, except the unredeemed portion of any Note being redeemed in part.
(e) Transfer and Exchange of Definitive Notes. When Definitive Notes are presented to
the Trustee with a request:
(x) to register the transfer of such Definitive Notes or
(y) to exchange such Definitive Notes for an equal principal amount of Definitive
Notes of other authorized denominations,
the Trustee will register the transfer or make the exchange as requested if its reasonable
requirements for such transaction are met; provided, however, that any Definitive Notes surrendered
for transfer or exchange:
55
(i) are duly endorsed or accompanied by a written instrument of transfer in
form reasonably satisfactory to the Company and the Trustee, duly executed by the
Holder thereof or its attorney duly authorized in writing; and
(ii) if such Definitive Notes are required to bear a restricted securities
legend, they are being transferred or exchanged pursuant to an effective
registration statement under the Securities Act, pursuant to Section 3.08(f) hereof
or pursuant to clause (A), (B) or (C) below, and are accompanied by the following
additional information and documents, as applicable:
(A) if such Definitive Notes are being delivered to the Note Registrar by a Holder
for registration in the name of such Holder, without transfer, a certification from
such Holder to that effect; or
(B) if such Definitive Notes are being transferred to the Company, a certification
to that effect; or
(C) if such Definitive Notes are being transferred (x) pursuant to an exemption from
registration in accordance with Rule 144A, Regulation S or Rule 144 or another
exemption from the registration requirements of the Securities Act or (y) in
reliance upon another exemption from the requirements of the Securities Act: (1) a
certification to that effect (in the form set forth on the reverse of the Note) and
(2) if the Company so requests, an Opinion of Counsel or other evidence reasonably
satisfactory to it as to compliance with the restrictions set forth in the legend
set forth in Section 2.02 hereof.
(f) Restrictions on Transfer of a Definitive Note for a Beneficial Interest in a
Restricted Global Note. A Definitive Note may not be exchanged for a beneficial interest in a
Rule 144A Global Note, an IAI Global Note or a Regulation S Global Note except upon satisfaction of
the requirements set forth below. Upon receipt by the Trustee of a Definitive Note, duly endorsed
or accompanied by a written instrument of transfer, in form reasonably satisfactory to the Trustee,
together with:
(i) certification, in the form set forth on the reverse of the Note, that such
Definitive Note is (A) being transferred to a QIB in accordance with Rule 144A, (B) being
transferred after expiration of the Distribution Compliance Period by a Person who initially
purchased such Note in reliance on Regulation S to a buyer who elects to hold its interest
in such Note in the form of a beneficial interest in the Regulation S Global Security or (C)
being transferred to an Institutional Accredited Investor pursuant to exemptions from the
registration requirements of the Securities Act; and
(ii) written instructions directing the Trustee to make, or to direct the Custodian to
make, an adjustment on its books and records with respect to such Rule 144A Global Note (in
the case of a transfer pursuant to clause (f)(i)(A)), Regulation S Global Note (in the case
of a transfer pursuant to clause (f)(i)(B)) or IAI Global Note (in the case of a transfer
pursuant to clause (f)(i)(C)) to reflect an increase in the aggregate principal amount of
the Notes represented by the Rule 144A Global Note, Regulation S
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Global Note or IAI Global
Note, as applicable, such instructions to contain information regarding the Depositary
account to be credited with such increase,
then the Trustee will cancel such Definitive Note and cause, or direct the Custodian to cause, in
accordance with the standing instructions and procedures existing between the Depositary and the
Custodian, the aggregate principal amount of Notes represented by the Rule 144A Global Note, IAI
Global Note or Regulation S Global Note, as applicable, to be increased by the aggregate principal
amount of the Definitive Note to be exchanged and will credit or cause to be credited to the
account of the Person specified in such instructions a beneficial interest in the Rule 144A Global
Note, IAI Global Note or Regulation S Global Note, as applicable, equal to the principal amount of
the Definitive Note so canceled. If no Rule 144A Global Notes, IAI Global Notes or Regulation S
Global Notes, as applicable, are then outstanding, the Company will issue and the Trustee will
authenticate, upon written order of the Company in the form of an Officers’ Certificate, a new Rule
144A Global Note, IAI Global Note or Regulation S Global Note, as applicable, in the appropriate
principal amount.
(g) Exchanges Among Rule 144A Global Notes, IAI Global Notes and Regulation S Global
Notes. Prior to and after the expiration of the Distribution Compliance Period, beneficial
interests in a Regulation S Global Note may be exchanged for beneficial interests in a Rule 144A
Global Note or an IAI Global Note only if (i) such exchange occurs in connection with a transfer of
the Notes pursuant to Rule 144A or other registration exemptions under the Securities Act and (ii)
the transferor first delivers to the Trustee a written certificate (such certificate to be in the
form set forth on the reverse of the Note) to the effect that the Notes are being transferred to a
Person (A) who the transferor reasonably believes to be a QIB purchasing for its own account or a
Person purchasing for the account of a QIB in a transaction meeting the requirements of Rule 144A
or (B) who the transferor reasonably believes to be an Institutional Accredited Investor purchasing
for its own account or a Person purchasing for the account of an Institutional Accredited Investor
in a transaction meeting the requirements of other registration exemptions under the Securities
Act, in each case in accordance with all applicable securities laws of the states of the United
States and other jurisdictions.
Beneficial interests in a Rule 144A Global Note or an IAI Global Note may be transferred to a
Person who takes delivery in the form of an interest in a Regulation S Global Note, whether before
or after the expiration of the Distribution Compliance Period, only if the transferor first
delivers to the Trustee a written certificate (such certificate to be in the form set forth on the
reverse of the Note) to the effect that such transfer is being made in accordance with Rule 903 or
904 of Regulation S or Rule 144 (if available) and that, if such transfer occurs prior to the
expiration of the Distribution Compliance Period, the interest transferred will be held immediately
thereafter through Euroclear or Clearstream.
Beneficial interests in an IAI Global Note may be transferred to a Person who takes delivery
in the form of an interest in a Rule 144A Global Note only if the transferor first delivers to the
Trustee a written certificate (such certificate to be in the form set forth on the reverse of the
Note) to the effect that the Notes are being transferred to a Person who the transferor reasonably
believes to be a QIB purchasing for its own account or a Person purchasing for the account of a QIB
in a transaction meeting the requirements of Rule 144A, in accordance with all applicable
securities laws of the states of the United States and other applicable
57
jurisdictions. Beneficial
interests in a Rule 144A Global Note may be transferred to a Person who takes delivery in the form
of an interest in an IAI Global Note only if the transferor first delivers to the Trustee a written
certificate (such certificate to be in the form set forth on the reverse of the Note) to the effect
that the Notes are being transferred to a Person who the transferor reasonably believes to be an
Institutional Accredited Investor purchasing for its own account or a Person purchasing for the
account of an Institutional Accredited Investor in a transaction meeting the requirements of other
registration exemptions under the Securities Act, in accordance with all applicable securities laws
of the states of the United States and other applicable jurisdictions.
Transfers involving exchanges among beneficial interests in a Rule 144A Global Note, an IAI
Global Note and a Regulation S Global Note will be effected through the Depositary by means of an
instruction originated by the Trustee through the DTC Deposit/Withdraw at Custodian system.
Accordingly, in connection with any such transfer, appropriate adjustments will be made to reflect
a decrease in the principal amount of one such Restricted Global Note and a corresponding increase
in the principal amount of the other such Restricted Global Note. Any beneficial interest in one
of the Restricted Global Notes that is transferred to a Person who takes delivery in the form of an
interest in another Restricted Global Note will, upon transfer, cease to be an interest in such
Restricted Global Note and will become an interest in such other Restricted Global Note and,
accordingly, will thereafter be subject to all transfer restrictions and other procedures
applicable to the beneficial interest in such other Restricted Global Note for so long as it
remains such an interest. The policies and practices of the Depositary may prohibit transfers of
beneficial interests in the Regulation S Global Note prior to the expiration of the Distribution
Compliance Period.
(h) Transfer and Exchange of Beneficial Interests in a Restricted Global Note for
Beneficial Interests in an Unrestricted Global Note. A beneficial interest in any Restricted
Global Note may be transferred to a Person who takes delivery thereof in the form of a beneficial
interest in an Unrestricted Global Note if:
(A) such transfer is effected pursuant to a Shelf Registration Statement in accordance with
the Registration Rights Agreement or otherwise effected pursuant to an effective registration
statement under the Securities Act; or
(B) the Trustee receives a certificate from the transferor in the form set forth on the
reverse of the Note, including the certifications in box (6) thereof;
and, in each such case set forth in this subparagraph (B), if the Trustee or the Company so
requests, an Opinion of Counsel in form reasonably acceptable to the Trustee and the Company to the
effect that such exchange or transfer is in compliance with the Securities Act
and that the restrictions on transfer contained herein and in the Private Placement Legend are no
longer required in order to maintain compliance with the Securities Act.
Beneficial interests in an Unrestricted Global Note cannot be exchanged for, or transferred to
Persons who take delivery thereof in the form of, a beneficial interest in a Restricted Global
Note.
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SECTION 3.09 MUTILATED, DESTROYED, LOST AND STOLEN NOTES. If any
mutilated Note is surrendered to the Trustee, the Company and the Guarantors shall execute, and the
Trustee shall authenticate and deliver in exchange therefor a new Note (including the accompanying
Guarantees) of like tenor, principal amount and Stated Maturity and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence to their satisfaction
of the destruction, loss or theft of any Note and (ii) such security or indemnity as may be
required by them to hold each of them and any agent of either of them harmless, then, in the
absence of notice to the Company or the Trustee that such Note has been acquired by a bona fide
purchaser, the Company and the Guarantors shall execute and upon its request the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen Note, a new Note of like
tenor, principal amount and Stated Maturity and bearing a number not contemporaneously outstanding.
If after the delivery of such new Note, a bona fide purchaser of the original Note in lieu of which
such new Note was issued presents for payment such original Note, the Company and the Trustee shall
be entitled to recover such new Note from the person to whom it was delivered or any transferee
thereof, except a bona fide purchaser of such new Note, and shall be entitled to recover upon the
security or indemnity provided therefor to the extent of any loss, damage, cost or expense incurred
by the Company or the Trustee in connection therewith.
In case any such mutilated, destroyed, lost or stolen Note has become or is about to become
due and payable, the Company in its discretion may, instead of issuing a new Note, pay such Note.
Upon the issuance of any new Note under this Section, the Company may require the payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trustee) connected
therewith.
Except as provided above, every new Note issued pursuant to this Section in lieu of any
destroyed, lost or stolen Note shall constitute an original additional contractual obligation of
the Company and the Guarantors, whether or not the destroyed, lost or stolen Note shall be at any
time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Notes duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the extent lawful) all
other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost
or stolen Notes.
SECTION 3.10 PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED. Interest on
any Note which is payable, and is punctually paid or duly provided for, on any Interest Payment
Date shall be paid to the Person in whose name that Note (or one or more Predecessor Notes) is
registered at the close of business on the Regular Record Date for such interest.
Any interest on any Note which is payable, but is not punctually paid or duly provided for, on
any Interest Payment Date (which, together with interest on overdue
59
installments of interest, to
the extent legally enforceable under applicable law, at the Default Rate is herein called
“Defaulted Interest”) shall forthwith cease to be payable to the Holder on the relevant
Regular Record Date by virtue of having been such Holder, and such Defaulted Interest may be paid
by the Company, at its election in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to the Persons in whose
names the Notes (or their respective Predecessor Notes) are registered at the close of business on
a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the
following manner: The Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Note and the date of the proposed payment, and at the same
time the Company shall deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory
to the Trustee for such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as
provided in this clause (1). Thereupon the Company shall fix a Special Record Date for the payment
of such Defaulted Interest which shall be not more than 15 days and not less than 10 days prior to
the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the
notice of the proposed payment. The Company shall promptly notify the Trustee in writing of such
Special Record Date and the Trustee, in the name and at the expense of the Company, shall cause
notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to
be mailed, first class postage prepaid, to each Holder at his address as it appears in the Note
Register, not less than 10 days prior to such Special Record Date. Notice of the proposed payment
of such Defaulted Interest and the Special Record Date therefor having been so mailed, such
Defaulted Interest shall be paid to the Persons in whose names the Notes (or their respective
Predecessor Notes) are registered at the close of business on such Special Record Date and shall no
longer be payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest on the Notes in any other lawful
manner not inconsistent with the requirements of any securities exchange on which such Notes may be
listed, and upon such notice as may be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this clause, such manner of payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Note delivered under this Indenture
upon registration of transfer of or in exchange for or in lieu of any other Note shall
carry the rights to interest accrued and unpaid, and to accrue, which were carried by such
other Note.
SECTION 3.11 PERSONS DEEMED OWNERS. Prior to due presentation of a Note
for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name any Note is registered as the owner of such Note for the purpose
of receiving payment of principal of, premium, if any, and (subject to Section 3.10) interest and
Additional Amounts, if any, on such Note and for all other purposes whatsoever, whether or not such
Note be overdue, and neither the Company, the Trustee nor any agent of the Company, or the Trustee
shall be affected by notice to the contrary.
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SECTION 3.12 CANCELLATION. All Notes surrendered for payment, redemption,
registration of transfer or exchange shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee and shall be promptly canceled by it. The Company may at any time deliver
to the Trustee for cancellation any Notes previously authenticated and delivered hereunder which
the Company may have acquired in any manner whatsoever, and all Notes so delivered shall be
promptly canceled by the Trustee. No Notes shall be authenticated in lieu of or in exchange for
any Notes canceled as provided in this Section, except as expressly permitted by this Indenture.
All canceled Notes held by the Trustee shall be destroyed by the Trustee (subject to the record
retention requirements of the Exchange Act) and, upon written request of the Company, the Trustee
shall deliver to the Company a certificate of destruction in respect thereof.
SECTION 3.13 COMPUTATION OF INTEREST. Interest on the Notes shall be
computed on the basis of a 360-day year of twelve 30-day months.
SECTION 3.14 RANKING; SUBORDINATION. (a) The Notes rank pari passu in
right of payment to all existing or future senior Indebtedness of the Company and rank senior to
all of the Company’s existing and future subordinated Indebtedness. All Indebtedness, notes,
claims and payments owed by the Company or any Guarantor to any Restricted Subsidiary of the
Company shall be subordinated in right of payment to the Notes.
SECTION 3.15 CUSIP NUMBERS. The Company in issuing the Notes may use
“CUSIP” numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP” numbers in
notices as a convenience to Holders; provided that any such notice may state that no representation
is made as to the correctness of such numbers either as printed on the Notes or as contained in any
notice and that reliance may be placed only on the other identification numbers printed on the
Notes and any such redemption shall not be affected by any defect in or omission of such numbers.
The Company will promptly notify the Trustee of any change in the “CUSIP” numbers.
ARTICLE FOUR
REDEMPTION OF NOTES
SECTION 4.01 APPLICABILITY OF ARTICLE. Redemption of Notes at the
election of the Company as permitted by any provision of this Indenture, shall be made in
accordance with such provision and this Article.
SECTION 4.02 RIGHT OF REDEMPTION.
(a) The Notes may be redeemed at the election of the Company, in whole or from time to time in
part, at any time at a Redemption Price equal to (i) 100% of the principal amount of the Notes to
be redeemed, plus accrued and unpaid interest and Additional Amounts, if any, to the Redemption
Date, until such time as the Company has repaid, redeemed or otherwise retired $150,000,000 in
aggregate principal amount of the Notes, and thereafter (ii) 101% of the principal amount of the
Notes to be redeemed, plus accrued and unpaid interest and Additional Amounts, if any, to the
Redemption Date.
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(b) In the event of any redemption of the Notes, or repurchase or other retirement of the
Notes pursuant to Sections 5.16 or 5.18, before the Company shall have previously repaid, redeemed
or otherwise retired $150,000,000 in aggregate principal amount of the Notes and, following such
redemption, repurchase or other retirement, the Company will have previously repaid, redeemed or
otherwise retired more than $150,000,000 in aggregate principal amount of the Notes, then the
additional 1.00% portion of the Redemption Price, Repurchase Price or other price applicable to the
principal amount of the Notes to be repaid, redeemed or otherwise retired in excess of such
$150,000,000 shall be pro-rated among and paid upon redemption, repurchase or other retirement of
all of the Notes to be repaid, redeemed or otherwise retired in connection with such redemption,
repurchase or retirement.
SECTION 4.03 ELECTION TO REDEEM; NOTICE TO TRUSTEE. The election of the
Company to redeem any Notes pursuant to Section 4.02 shall be evidenced by a Board Resolution. In
case of any partial redemption at the election of the Company, the Company shall, at least 60 days
prior to the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to
the Trustee), notify the Trustee by Company Order of such Redemption Date and of the principal
amount of Notes to be redeemed.
SECTION 4.04 SELECTION BY TRUSTEE OF NOTES TO BE REDEEMED. If less than
all the Notes are to be redeemed, the particular Notes to be redeemed shall be selected not more
than 60 nor less than 30 days prior to the Redemption Date by the Trustee, from the Outstanding
Notes not previously called for redemption, by such method as the Trustee shall deem fair and
appropriate and which may provide for the selection
for redemption of portions (equal to $1.00 or any integral multiple thereof) of the principal
amount of Notes of a denomination larger than $1.00.
The Trustee shall promptly notify the Company and each Note Registrar in writing of the Notes
selected for redemption and, in the case of any Notes selected for partial redemption, the
principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires, all provisions
relating to the redemption of Notes shall relate, in the case of any Notes redeemed or to be
redeemed only in part, to the portion of the principal amount of such Notes which has been or is to
be redeemed.
SECTION 4.05 NOTICE OF REDEMPTION. Notice of redemption shall be given by
the Company by first class mail, postage prepaid, mailed not less than 30 nor more than 60 days
prior to the Redemption Date, to the Trustee and each Holder of Notes to be redeemed, at his
address appearing in the Note Register.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price and the amount of accrued and unpaid interest and Additional Amounts,
if any, to the Redemption Date;
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(3) if less than all of the Outstanding Notes are to be redeemed, the identification (and, in
the case of partial redemption, the principal amounts to be redeemed) of the particular Notes to be
redeemed;
(4) that on the Redemption Date the Redemption Price and accrued and unpaid interest and
Additional Amounts, if any, will become due and payable upon each such Note to be redeemed and that
interest thereon will cease to accrue on and after said date;
(5) the place or places where such Notes are to be surrendered for payment of the Redemption
Price and accrued and unpaid interest and Additional Amounts, if any;
(6) the CUSIP number or numbers, if any, of the Notes called for redemption; and
(7) that no representation is made as to the correctness or accuracy of the CUSIP number, if
any, listed in such notice or printed on the Notes.
Notice of redemption of Notes to be redeemed at the election of the Company shall be given by
the Company or, at the Company’s request, by the Trustee in the name and at the expense of the
Company.
SECTION 4.06 DEPOSIT OF REDEMPTION PRICE. The Company shall deposit with the Trustee or with a Paying Agent (or, if the Company is
acting as its own Paying Agent, segregate and hold in trust as provided in Section 5.03) an amount
of money in immediately available funds by 10:00 a.m., New York City time, on such Redemption Date
sufficient to pay the Redemption Price of, and (except if the Redemption Date shall be an Interest
Payment Date) accrued and unpaid interest and Additional Amounts on, all the Notes which are to be
redeemed on that date.
SECTION 4.07 NOTES PAYABLE ON REDEMPTION DATE. Notice of redemption
having been given as aforesaid, the Notes so to be redeemed shall on the Redemption Date become due
and payable at the Redemption Price plus accrued and unpaid interest and Additional Amounts, if
any, therein specified, and from and after such date (unless the Company shall default in the
payment of the Redemption Price and accrued interest and Additional Amounts) such Notes shall cease
to bear interest. Upon surrender of any such Note for redemption in accordance with said notice,
such Note shall be paid by the Company at the Redemption Price, together with accrued and unpaid
interest, if any, and Additional Amounts, if any, to the Redemption Date; provided, however, that
installments of interest whose Stated Maturity is on or prior to the Redemption Date shall be
payable to the Holders of such Notes, or one or more Predecessor Notes, registered as such at the
close of business on the relevant Record Dates according to the terms and the provisions of Section
3.05.
Notwithstanding the foregoing, the Trustee shall not redeem any Notes or mail any notice of
optional redemption during the continuance of a default in payment of interest on the Notes or of
any Event of Default.
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If any Note called for redemption shall not be so paid upon surrender thereof for redemption,
the principal (and premium, if any) shall, until paid, bear interest from the Redemption Date at
the Default Rate.
SECTION 4.08 NOTES REDEEMED IN PART. Any Note which is to be redeemed
only in part shall be surrendered at an office or agency of the Company designated for that purpose
pursuant to Section 5.02 (with, if the Company or the Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the Company and the Trustee duly executed
by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute,
and the Trustee shall authenticate and deliver to the Holder of such Note without service charge, a
new Note or Notes, of any authorized denomination as requested by such Holder, in aggregate
principal amount equal to and in exchange for the unredeemed portion of the principal of the Note
so surrendered.
SECTION 4.09 OPTIONAL REDEMPTION DUE TO CHANGES IN TAX TREATMENT. The Notes
may be redeemed at the option of the Company in whole but not in part at any time at a Redemption
Price equal to 100% of the principal amount thereof, plus accrued and unpaid interest and
Additional Amounts, if any, to the date fixed for redemption if, as a result of any change in or
amendment to the laws or any regulations or rulings promulgated thereunder of the United Mexican
States (or of any political subdivision or taxing authority thereof or therein) or
any change in the official application or interpretation of such laws, regulations or rulings, or
any change in the official application or interpretation of, or any execution of or amendment to,
any treaty or treaties affecting taxation to which the United Mexican States (or such political
subdivision or taxing authority) is a party, which change, execution or amendment becomes effective
after the Initial Issuance Date, the Company is or would be required to pay additional amounts with
respect to the Notes in excess of the Additional Amounts payable on the Initial Issuance Date as
described in Section 2.03, and the payment of such additional amounts cannot be avoided by the use
of any reasonable measures available to the Company. Prior to the giving of notice of redemption of
such Notes pursuant to this Indenture, the Company will deliver to the Trustee an Officers’
Certificate, stating that the Company is entitled to effect such redemption based on an Opinion of
Counsel that the Company has or will become obligated to pay such additional amounts as a result of
such change or amendment. Such notice, once delivered by the Company to the Trustee, will be
irrevocable.
ARTICLE FIVE
COVENANTS
So long as any of the Notes shall remain Outstanding, each of the Company and, as applicable,
the Guarantors, covenants as follows:
SECTION 5.01 PAYMENTS OF PRINCIPAL, PREMIUM, IF ANY, AND INTEREST. The
Company will duly and punctually pay or cause to be paid the principal of, premium, if any,
interest and Additional Amounts on the Notes in accordance with the terms of the Notes and this
Indenture.
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SECTION 5.02 MAINTENANCE OF OFFICE OR AGENCY. The Company and the
Guarantors shall maintain in New York, New York an office or agency where Notes may be presented or
surrendered for payment, where Notes may be surrendered for registration of transfer or exchange
and where notices and demands to or upon the Company and the Guarantors in respect of the Notes and
this Indenture may be served. The Company and the Guarantors shall give prompt written notice to
the Trustee of the location, and any change in the location, of any such office or agency.
The Company and the Guarantors may also from time to time designate one or more other offices
or agencies where the Notes may be presented or surrendered for any or all such purposes, and may
from time to time rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company and the Guarantors of their obligation to
maintain an office or agency in accordance with the requirements set forth above. The Company and
the Guarantors shall give prompt written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other office or agency.
SECTION 5.03 MONEY FOR NOTE PAYMENTS TO BE HELD IN TRUST. If the Company shall at any time act as its own Paying Agent, it will, on or before each
due date of the principal of (and premium, if any) or interest and Additional Amounts on any of the
Notes, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient
to pay the principal (and premium, if any) or interest and Additional Amounts so becoming due until
such sums shall be paid to such Persons or otherwise disposed of as herein provided and will
promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents, it will, prior to each due date of
the principal of (and premium, if any) or interest and Additional Amounts, if any, on any Notes,
deposit with a Paying Agent a sum (or in the case of interest payable in Additional Notes or ADSs,
an aggregate amount of such securities) sufficient to pay the principal (and premium, if any), or
interest, and Additional Amounts, if any, so becoming due, such sum (or Additional Notes or ADSs)
to be held in trust for the benefit of the Persons entitled to such principal, premium, interest
and Additional Amounts and (unless such Paying Agent is the Trustee) the Company will promptly
notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent other than the Trustee to execute and deliver to the
Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the
provisions of this Section, that such Paying Agent will:
(1) hold all sums and securities held by it for the payment of the principal of (and premium,
if any) or interest and Additional Amounts on Notes in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to, and such securities distributed to, such Persons
or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any other obligor upon the
Notes) in the making of any payment of principal (and premium, if any) or interest and Additional
Amounts; and
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(3) at any time during the continuance of any such default, upon the written request of the
Trustee, forthwith pay to the Trustee all sums and deliver all such securities so held in trust by
such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction and discharge of
this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay,
to the Trustee all sums and securities held in trust by the Company or such Paying Agent, such sums
to be held by the Trustee upon the same trusts as those upon which such sums were held by the
Company or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of (and premium, if any) or interest and Additional Amounts,
if any, on any Note and remaining unclaimed for two years after such principal (and premium, if
any) or interest and Additional Amounts, if any, has become due and payable shall be paid to the
Company on Company Request, or (if then held by the Company) shall be discharged from such trust;
and (except to the extent such money is subject to the
Collateral Documents) the Holder of such Note shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all liability of the Trustee or such
Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof,
shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to be published once,
in a newspaper published in the English language, customarily published on each Business Day and of
general circulation in New York, New York, notice that such money remains unclaimed and that, after
a date specified therein, which shall not be less than 30 days from the date of such publication,
any unclaimed balance of such money then remaining will be repaid to the Company. The Company
hereby appoints the Trustee as the initial Note Registrar and Paying Agent for the Notes.
SECTION 5.04 EXISTENCE. Subject to Article Eleven, the Company will do or
cause to be done all things necessary to preserve and keep in full force and effect its existence,
and the rights (charter and statutory) and franchises of the Company and each of its Restricted
Subsidiaries; provided, however, that the Company shall not be required to preserve the existence
of any of its Restricted Subsidiaries (subject to Article Eleven) or any such right or franchise if
the Company shall determine that the preservation thereof is no longer desirable in the conduct of
the business of the Company and that the loss thereof is not disadvantageous in any material
respect to the Holders.
SECTION 5.05 MAINTENANCE OF PROPERTIES; INSURANCE. The Company will cause
all vessels and properties used or useful in the conduct of its business or the business of any of
its Restricted Subsidiaries to be maintained and kept in good condition, repair and working order
and supplied with all necessary equipment and will cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the reasonable judgment of
the Company may be necessary so that the business carried on in connection therewith may be
conducted in the ordinary course consistent with the Company’s custom and practice at all times;
provided, however, that nothing in this Section 5.05 shall
66
prevent the Company from discontinuing
the operation or maintenance of any of such vessels or properties if such discontinuance is, in the
reasonable judgment of the Company, desirable in the conduct of its business or the business of any
Restricted Subsidiary; provided, further, that such discontinuance shall not be materially
disadvantageous to the Holders.
For so long as any vessel or property is deemed to be useful to the conduct of the business of
the Company or any of its Restricted Subsidiaries, the Company will, or will cause its Restricted
Subsidiaries to, maintain appropriate insurance, in accordance with industry practice, on such
vessels and properties.
SECTION 5.06 PAYMENT OF TAXES. The Company will pay or discharge or cause
to be paid or discharged, before the same shall become delinquent, all taxes, assessments and
governmental charges levied or imposed upon the Company or any Subsidiary or upon the income,
profits or property of the Company or any Subsidiary; provided, however, that the Company shall not
be required to pay
or discharge or cause to be paid or discharged any such tax, assessment or charge whose
amount, applicability or validity is being contested in good faith by appropriate proceedings
(including the making of any deposit or guaranty required by law to pursue such proceedings).
SECTION 5.07 ANNUAL OFFICERS’ CERTIFICATE TO TRUSTEE. The Company will
deliver to the Trustee on or prior to April 30 in each year an Officers’ Certificate, complying
with Section 314(a)(4) of the Trust Indenture Act, from the principal executive officer, principal
financial officer or principal accounting officer as to his or her knowledge of the Company’s
compliance with all conditions and covenants under this Indenture. For the purposes of such
certificate, such compliance shall be determined without regard to any period of grace or
requirement of notice provided under this Indenture.
SECTION 5.08 REPORTS TO BE FURNISHED TO TRUSTEE AND HOLDERS. For so long
as any of the Notes are outstanding, the Company will deliver to the Trustee and the Holders:
(1) within 45 Business Days of the close of its fiscal year, or such later time as is then
permitted under Mexican law, an English translation of the unaudited consolidated financial
statements of the Company, together with information sufficient to ascertain the financial
condition and results of operations of the Company and its Restricted Subsidiaries on a
consolidated basis, accounting for Grupo TFM and its consolidated subsidiaries under the equity
method of accounting;
(2) within 120 days of the close of its fiscal year, or such later time as is then permitted
under Mexican law, an English translation of the audited consolidated financial statements of the
Company, together with information sufficient to ascertain the financial condition and results of
operations of the Company and its Restricted Subsidiaries on a consolidated basis, accounting for
Grupo TFM and its consolidated subsidiaries under the equity method of accounting;
(3) within 180 days of the close of its fiscal year, an English translation of the audited
consolidated financial statements of the Company, together with a reconciliation (in the
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form
required by the Commission) to U.S. generally accepted accounting principles, together with
information sufficient to ascertain the financial condition and results of operations of the
Company and its Restricted Subsidiaries, accounting for Grupo TFM and its consolidated subsidiaries
under the equity method of accounting;
(4) within 30 Business Days of the close of the relevant quarter, an English translation of
the unaudited quarterly consolidated financial statements of the Company, for each of the first
three fiscal quarters, together with information sufficient to ascertain the financial condition
and results of operations of the Company and its Restricted Subsidiaries, accounting for Grupo TFM
and its consolidated subsidiaries under the equity method of accounting;
(5) simultaneously with the delivery of each set of consolidated financial statements referred
to in clauses (2), (3) and (4) above, an Officers’ Certificate stating whether
any Event of Default exists on the date of such certificate and, if any Event of Default then
exists, setting forth the details thereof and the action which the Company is taking or proposes to
take with respect thereto;
(6) without duplication, copies of such other reports or notices as may be filed or required
to be filed by the Company with the CNBV or the Commission; and
(7) promptly upon any officer of the Company becoming aware of the existence of an Event of
Default, an Officers’ Certificate setting forth the details thereof and the action which the
Company is taking or proposes to take with respect thereto.
The Company will transmit or cause to be transmitted to the Holders, as soon as practicable
after the mailing of such material to its stockholders, English translations of copies of all
quarterly and annual financial reports distributed to its stockholders generally. Reports pursuant
to this Section shall be transmitted by mail to all Holders of Notes, as the names and addresses of
such Holders appear upon the Note Register, or shall otherwise be made available to the Holders in
electronic form. Delivery of such reports, information and documents to the Trustee is for
informational purposes only and the Trustee’s receipt of such shall not constitute constructive
notice of any information contained therein or determinable from information contained therein,
including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is
entitled to conclusively rely exclusively on Officers’ Certificates).
SECTION 5.09 FURTHER ASSURANCES. From time to time whenever reasonably
demanded by the Trustee, the Company and the Guarantors will make, execute and deliver or cause to
be made, executed and delivered any and all such further and other instruments and assurances as
may be reasonably necessary or proper to carry out the intention or facilitate the performance of
the terms of this Indenture and the Collateral Documents.
SECTION 5.10 COMPANY TO FURNISH TRUSTEE INFORMATION AS TO NAMES AND ADDRESSES
OF HOLDERS. The Company shall furnish or cause to be furnished to the Trustee (a) not more
than 15 days before each Regular Record Date, but in any event not less frequently than
semiannually or quarterly if the Company has exercised the Extension Election, a list in such form
as the Trustee may reasonably require, containing all the information in the possession or control
of the Company or any of its Paying Agents other than
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the Trustee, as to the names and addresses of
the Holders of Notes to which such Regular Record Date applies as of such Regular Record Date, and
(b) at such other times as the Trustee may request in writing, within five days after receipt by
the Company of any such request, a list of similar form and content as of a date not more than 15
days prior to the time such list is furnished, excluding from any such list names and addresses
received by the Trustee in its capacity as Note Registrar.
SECTION 5.11 WAIVER OF STAY, EXTENSION OR USURY LAWS. The Company and the
Guarantors covenant (to the extent that they may lawfully do so) that they will not at any time
insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law or any usury law or other law,
which would prohibit or forgive the Company or any Guarantors from paying all or any portion of the
principal of, premium, if any, or interest and Additional Amounts, if any, on the Notes or the
Guarantees as contemplated herein, wherever enacted now or at any time hereafter in force, or which
may affect the covenants or the performance of this Indenture or the Guarantees; and (to the extent
that it may lawfully do so) the Company and each Guarantor hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not hinder, delay or impede the execution of
any power herein granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
SECTION
5.12 LIMITATION ON RESTRICTED PAYMENTS. (a) The Company shall not,
and shall cause its Restricted Subsidiaries not to, directly or indirectly, (i) declare or pay any
dividend on, or make any distribution to the holders of, any Capital Stock of the Company, other
than (x) dividends or distributions payable in Capital Stock of the Company (other than
Disqualified Stock) or (y) pro rata dividends or distributions on Capital Stock (other than
Disqualified Stock) of its Restricted Subsidiaries; (ii) repay, redeem or otherwise acquire or
retire for value (other than through the issuance of Capital Stock of the Company (excluding
Disqualified Stock)) any Capital Stock of the Company or any of its Restricted Subsidiaries, other
than any such repayment, redemption, acquisition or retirement of such Capital Stock held by (x)
the Company or its Restricted Subsidiaries or (y) in the case of Capital Stock of a Restricted
Subsidiary of the Company, any Person that is not an Affiliate (other than another Restricted
Subsidiary) of the Company; (iii) prepay, repay, redeem, defease or otherwise acquire or retire for
value (other than through the issuance of Capital Stock of the Company (excluding Disqualified
Stock)), prior to any scheduled maturity, scheduled repayment or scheduled sinking fund payment,
any Indebtedness of the Company or any of its Restricted Subsidiaries that ranks junior in right of
payment to the Notes or the Guarantees, as applicable, except as permitted pursuant to Section
5.14(b)(vii); or (iv) make any Investment in any Affiliate of the Company other than (A) an
Investment by the Company or any of its Restricted Subsidiaries in the Company or any such
Restricted Subsidiaries or in TFM, or in any Subsidiary in connection with a Qualifying PEMEX
Securitization Transaction, or (B) an Investment by the Company or any Restricted Subsidiary
consisting of non-cash consideration received in connection with a Qualifying Disposition (the
foregoing actions set forth in clauses (i) through (iv), being referred to hereinafter as
“
Restricted Payments”) if at the time of any such Restricted Payment, and after giving
effect thereto on a pro forma basis, (1) a Default or an Event of Default shall have occurred and
be continuing, (2) on a pro forma basis, the Consolidated Debt Service Coverage Ratio for the
Company for the four fiscal quarters immediately preceding such incurrence for which quarterly
financial statements are available in accordance with Section 5.08, taken as one
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period, is greater
than 2.0 to 1.0, or (3) the aggregate amount of all Restricted Payments declared or made after the
Initial Issuance Date including such Restricted Payment (the value of any such payment, if other
than cash, shall be the value determined in good faith by the Board of Directors and evidenced by a
Board Resolution) shall exceed the sum of:
(A) 50% of Consolidated Net Income for the period (treated as one accounting period)
commencing with the first full fiscal quarter after the Initial Issuance Date and ending on the
last day of the last full fiscal quarter immediately preceding such Restricted Payment for
which quarterly or annual financial statements of the Company are available (or if such
Consolidated Net Income is a deficit, less 100% of such deficit); provided, that
Consolidated Net Income shall be adjusted to exclude any amounts included in clause (C) that would
increase Consolidated Net Income; plus
(B) 100% of the aggregate net cash proceeds received after the Initial Issuance Date as a
contribution to the common equity capital of the Company or from the issue or sale of Capital Stock
of the Company (other than Disqualified Stock) or from the issue or sale of Disqualified Stock or
debt securities of the Company that have been converted into such Capital Stock (other than Capital
Stock or Disqualified Stock or convertible debt securities sold to a Restricted Subsidiary of the
Company) after the Initial Issuance Date; plus
(C) an amount equal to the net reduction in Investments made pursuant to Section 5.20(ii)
resulting from dividends, repayments of loans or advances, or other transfers of assets, in each
case to the Company or any Restricted Subsidiary, not to exceed the amount of such Investments
previously made after the Initial Issuance Date by the Company and its Restricted Subsidiaries in
such Person.
(b) The provisions of this Section 5.12 will not prevent (i) the payment of any dividend
within 60 days after the date of its declaration if the dividend would have been permitted on the
date of declaration, (ii) the purchase, redemption, acquisition or retirement of any shares of
Capital Stock of the Company solely out of the proceeds of the substantially concurrent sale (other
than to a Restricted Subsidiary of the Company) of shares of Capital Stock (other than Disqualified
Stock), (iii) purchases by the Company of shares of its Capital Stock pursuant to the terms of the
Company’s share repurchase program as in effect on the Initial Issuance Date or (iv) purchases,
reductions or other retirements of the Company’s Note Linked Securities outstanding on the Initial
Issuance Date. For purposes of calculating the aggregate amount of Restricted Payments made
pursuant to clause (3) of the first paragraph of Section 5.12(a), payments made under clauses (i),
(ii) and (iv) of this Section 5.12(b) shall be included in such amount and payments made under
clause (iii) of this Section 5.12(b) shall be excluded, provided, that dividends paid within 60
days of the date of declaration shall be deemed to be paid at the date of declaration.
(c) Prior to making any Restricted Payment under this Section 5.12 (other than a permitted
Restricted Payment described in Section 5.12(b)(iii)), the Company shall deliver to the Trustee an
Officers’ Certificate setting forth the computation by which the amount available for Restricted
Payments was determined. The Trustee shall have no duty or responsibility to determine the
accuracy or correctness of this computation and shall be fully protected in relying on such
Officers’ Certificate.
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(d) Any payment made by the Company in lieu of or on account of any fractional ADS that would
otherwise be issuable if the Company elects to pay a portion of interest on the Notes in ADSs shall
not constitute a Restricted Payment.
SECTION 5.13 LIMITATION ON TRANSACTIONS WITH AFFILIATES.
(a) The Company shall not, and shall not permit any Restricted Subsidiary of the Company to,
directly or indirectly, sell, lease, transfer or otherwise dispose of any of its properties or
assets to, or purchase or lease any property or assets from, or enter into any contract, agreement,
understanding, loan, advance or guarantee with, or make any loan, advance or capital contribution
to, or for the benefit of, an Affiliate of the Company, or any direct or indirect holder of 10% or
more of the shares of Capital Stock of the Company outstanding or any Associate, or with an
Affiliate of any such holder or Associate, including Promotora Servia (an “Affiliate
Transaction”). Notwithstanding the foregoing, Affiliate Transactions shall not include (i) the
payment of reasonable and customary fees to directors or executive officers of the Company or any
Restricted Subsidiary of the Company for current and future periods; (ii) any transaction between
or among the Company and any of its Restricted Subsidiaries in the ordinary course of business and
consistent with past practices of the Company and its Restricted Subsidiaries; or (iii)
transactions made as part of, or directly relating to, a Qualifying PEMEX Securitization
Transaction.
(b) Except for the Existing Servia Payable, which will be settled on the Initial Issuance Date
through the issuance to Promotora Servia of Notes with a principal amount equal to the outstanding
amount of the Existing Servia Payable, all Indebtedness, notes, claims and payments owed to
Promotora Servia or its Affiliates or Associates, and any and all consulting fees and other
payments and compensation (other than reasonable and customary compensation as employees or
directors for current and future periods) payable to Promotora Servia or its Affiliates or
Associates, shall be subordinated in right of payment to the Notes and no payment shall be made to
Promotora Servia or its Affiliates or Associates by the Company or any of its Restricted
Subsidiaries in respect of any such amounts until the Outstanding Notes have been paid in full or
such payment has been provided for in full.
SECTION 5.14 LIMITATION ON INDEBTEDNESS.
(a) The Company shall not, and shall not permit any Restricted Subsidiary of the Company to,
directly or indirectly, create, incur, issue, suffer to exist, assume, guarantee or otherwise
become directly or indirectly liable with respect to, any Indebtedness (collectively, an
“Incurrence”), other than Indebtedness permitted to be incurred pursuant to Section
5.14(b).
(b) Indebtedness may be incurred as follows:
(i) Indebtedness of the Company and its Restricted Subsidiaries existing on the
Initial Issuance Date as set forth on
Schedule 5.14(b)(i) hereto;
(ii) Indebtedness of the Company evidenced by the Notes and this Indenture and
Indebtedness of the Guarantors evidenced by the Guarantees;
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(iii) Indebtedness of the Company or a Restricted Subsidiary owing to a
Restricted Subsidiary or the Company, provided, that either (x) any such
Indebtedness owing by the Company to a Restricted Subsidiary shall be expressly
subordinated to the prior payment in full in cash of all obligations with respect to
the Notes or (y) any such Indebtedness owing by a Restricted Subsidiary to the
Company or another Restricted Subsidiary shall be repayable solely out of
dividends or distributions made or declared by such Restricted Subsidiary to
the Company or another Restricted Subsidiary and in either such case (A) any
subsequent issuance or transfer of Capital Stock that results in any such
Indebtedness being held by a Person other than the Company or a Restricted
Subsidiary and (B) any sale or other transfer of any such Indebtedness to a Person
that is not either the Company or a Restricted Subsidiary thereof shall be deemed,
in each case, to constitute an Incurrence of such Indebtedness by the Company or
such Restricted Subsidiary, as the case may be, that was not permitted by this
clause (iii);
(iv) Acquired Indebtedness of any Person acquired by the Company or any
Restricted Subsidiary, provided, that such Indebtedness is non-recourse to any
assets of the Company or any other Restricted Subsidiary (other than the assets so
acquired), and is not guaranteed by the Company or any other Restricted Subsidiary;
(v) Guarantees by the Company or a Restricted Subsidiary of the Company of
Indebtedness otherwise permitted to be Incurred pursuant to any other clause of this
Section 5.14;
(vi) Indebtedness of the Company or a Restricted Subsidiary of the Company in
respect of letters of credit for the benefit of trade vendors issued in the ordinary
course of business in an aggregate amount not exceeding $20 million at any one time
outstanding;
(vii) Indebtedness issued in exchange for, or the proceeds of which are used to
repay or refund or refinance or discharge or otherwise retire for value
(“Refinance”), Indebtedness of the Company or any of its Restricted
Subsidiaries permitted under clauses (i), (ii), (iv), (vii) and (ix) of this
paragraph (b) (“Refinancing Indebtedness”) in a principal amount (or if such
Refinancing Indebtedness provides for an amount less than the principal amount
thereof to be due and payable upon a declaration of acceleration thereof, with an
original issue amount), not to exceed the principal amount of the Indebtedness so
Refinanced (or, if the Indebtedness being Refinanced was issued with original issue
discount, the original issue amount) plus customary fees, expenses and costs related
to the Incurrence of such Refinancing Indebtedness; provided, that (A) Refinancing
Indebtedness of any Restricted Subsidiary of the Company shall not be used to
Refinance outstanding Indebtedness of the Company or any other Restricted
Subsidiaries; (B) if such Refinancing Indebtedness is being used to Refinance or
discharge or otherwise retire the Notes, such Refinancing Indebtedness shall either
(I) be Qualifying Subordinated Indebtedness or (II) have aggregate annual
72
cash
interest payments not in excess of the lesser of (a) the sum of (1) 2% of the
principal amount of such Refinancing Indebtedness plus (2) the annual cash interest
requirements on all Notes retired by the Company prior to the issuance date of such
Refinancing Indebtedness through the application of VAT Cash Proceeds pursuant to
Section 5.18 (less any cash interest requirements in excess of 2% per annum on
Refinancing Indebtedness previously issued pursuant to this
provision) and (b) 8% per annum of the principal amount of such Refinancing
Indebtedness; (C) if such Refinancing Indebtedness is being used to Refinance
Indebtedness other than the Notes, the scheduled mandatory cash interest and
principal payments during the remaining term of the Notes on such Refinancing
Indebtedness has a present value (per $1,000 principal amount of such Refinancing
Indebtedness and based on the Agreed Discount Rate) at the date of issuance that is
equal to or less than the present value (per $1,000 principal amount of such
Indebtedness being Refinanced and based on the Agreed Discount Rate) at such date of
the scheduled mandatory cash interest and principal payments during the remaining
term of the Notes on the Indebtedness being Refinanced, provided, further, that any
Refinancing Indebtedness that is Incurred to Refinance Indebtedness Incurred under
Section 5.14(b)(ix) shall be subject to the limitations set forth in such Section;
and (D) with respect to any Refinancing Indebtedness which Refinances Indebtedness
which ranks junior in right of payment to the Notes, (x) such Refinancing
Indebtedness is subordinated in right of payment at least to the same extent as the
Indebtedness to be Refinanced if such Indebtedness had remained outstanding and (y)
the Refinancing Indebtedness has an Average Life and a Stated Maturity which is
equal to or greater than the Indebtedness to be Refinanced at the time of such
Incurrence, provided, further that, for the purpose of determining the amount of
Indebtedness that has been Incurred pursuant to any of foregoing enumerated clauses,
there shall be included in each such clause the principal amount then outstanding of
any Indebtedness originally Incurred pursuant to such clause and thereafter
Refinanced pursuant to this clause (vii) and any subsequent Refinancings thereof;
(viii) Indebtedness of the Company or any of its Restricted Subsidiaries under
Currency Agreements and Interest Rate Agreements; provided that the obligations
under such agreements are related to payment obligations incurred in compliance with
this Indenture and that such agreements (a) are designed solely to protect the
Company or its Restricted Subsidiaries against fluctuations in foreign currency
exchange rates or interest rates and (b) do not increase the Indebtedness of the
obligor outstanding at any time other than as a result of fluctuations in foreign
currency exchange rates or interest rates or by reason of fees, indemnities and
compensation payable thereunder;
(ix) Indebtedness of the Company or any of its Restricted Subsidiaries in an
aggregate principal amount at any time outstanding up to the sum of (1) $76,300,000
less (2) the principal amount of all certificates outstanding under the
Receivables Securitization Facility which Indebtedness Incurred pursuant to this
clause (ix) is (a) Incurred under the Receivables Securitization Facility; or (b)
Incurred other than under the Receivables Securitization Facility and is
73
unsecured;
or (c) Incurred other than under the Receivables Securitization Facility and (A) has
a Stated Maturity which is not earlier than the Stated Maturity of the Receivables
Securitization Facility, (B) has scheduled mandatory cash payments of principal and
interest during the remaining term of the Notes (as such may be extended pursuant to
Section 3.01(b)) that, at the date of issuance, has a present value (per $1,000
principal amount and computed based on the Agreed Discount
Rate) which is less than or equal to the present value (per $1,000 face amount
and computed based on the Agreed Discount Rate) at such date of the scheduled
mandatory cash payments of principal and interest during the remaining term of the
Notes (as such may be extended pursuant to Section 3.01(b)) on the certificates
issued under the Receivables Securitization Facility and (C) is secured on terms no
more favorable to the holders of such Indebtedness than to the holders of the
certificates under the Receivables Securitization Facility; provided, that any
amounts Incurred pursuant to this clause (ix) shall (I) not be used to redeem,
repay, repurchase or otherwise retire any Indebtedness which is subordinated in
right of payment to the Notes and (II) be applied in compliance with the provisions
of this Indenture; and
(x) Indebtedness, to the extent the net proceeds thereof are promptly applied
to defease any of the Notes as described below under Section 12.01 and to pay fees,
expenses, premiums and other payment obligations under this Indenture related to
such defeasance.
Accrual of interest, accretion or amortization of original issue discount, payment of interest
on any Indebtedness in the form of additional Indebtedness with the same terms, and payment of
dividends on Disqualified Stock in the form of additional shares of the same class of Disqualified
Stock will not be deemed to be an Incurrence of Indebtedness or an issuance of Disqualified Stock
for purposes of this Section 5.14.
(c) The Company shall not, directly or indirectly, Incur any Indebtedness of the Company
(other than Indebtedness of the Company which is convertible into Capital Stock (other than
Disqualified Stock) of the Company) which (i) is subordinate or junior in right of payment of
principal, premium, if any, or interest and Additional Amounts, if any, on the Notes and (ii)
requires any principal payment, redemption payment or sinking fund payment thereon, or purchase
thereof, in whole or in part, to be made prior to the final Stated Maturity of the Notes; provided
that (i) this Section 5.14(c) shall not prohibit the Incurrence of Indebtedness owing by the
Company to any Restricted Subsidiary and (ii) nothing contained in this Section 5.14(c) shall
permit any Incurrence of Indebtedness that is not otherwise permitted by Section 5.14(b).
SECTION 5.15 LIMITATION ON DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING
RESTRICTED SUBSIDIARIES. The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become
effective any consensual encumbrance or restriction on the ability of such Restricted Subsidiary to
(a) pay dividends or make any other distributions on its Capital Stock or any other interest or
participation in, or measured by, its profits, owned by, or pay any Indebtedness owed to, the
Company or its Restricted Subsidiaries, (b) make loans or advances to the Company or its Restricted
Subsidiaries, (c) transfer any of its properties or
74
assets to the Company or its Restricted Subsidiaries or (d) guarantee any Indebtedness of
the Company or its Restricted Subsidiaries, except for such encumbrances or restrictions existing
under or by reason of: (i) applicable law; (ii) any instrument governing Acquired Indebtedness
permitted to be incurred under Section 5.14(b)(iv), which encumbrances or restrictions are not
applicable to any Person or the properties or assets of any Person, other than the Person so
acquired, or the property or assets of the Person so acquired or its consolidated Subsidiaries;
(iii) any restrictions existing under agreements in effect on the date of this Indenture as set
forth on Schedule 5.15 hereto; (iv) any restrictions with respect to a Restricted
Subsidiary imposed pursuant to an agreement which has been entered into for the sale or disposition
of all or substantially all the Capital Stock or assets of such Restricted Subsidiary (which sale
or disposition is otherwise permitted by the terms of this Indenture); (v) any agreement governing
Indebtedness restricting the sale or other disposition of property securing such Indebtedness if
such agreement does not expressly restrict the ability of a Restricted Subsidiary to pay dividends
or to make distributions, loans or advances; (vi) customary restrictions in leases relating to
property covered thereby; or (vii) this Indenture.
SECTION 5.16 CHANGE OF CONTROL. If (i) any person or group within the meaning of
Section 13(d)(3) of the Exchange Act (a “Group”) together with any Affiliates and
Associates of any thereof, other than (A) the Xxxxxxx Xxxxxxx family, its Affiliates and
Associates, and (B) the CPO Trustee and any successor to the CPO Trustee, shall beneficially own
(within the meaning of Rule 13d-3 under the Exchange Act) at least 35% of the total voting power of
all classes of capital stock of the Company entitled to vote generally in the election of directors
of the Company; provided, that, in the event 100% of the total voting power of all classes of the
Company’s Capital Stock entitled to vote generally in the election of directors of the Company is
held by any other Person, a Change of Control shall be determined with respect to the Company as if
the Company was such other Person; or (ii) the Company is liquidated or dissolved or the
stockholders of the Company adopt a plan for the liquidation or dissolution of the Company (each, a
“Change of Control”), then the Company shall make an offer (an “Offer”) to purchase
all of the Notes then outstanding on a date not less than 30 nor more than 60 days after a Change
of Control (the “Repurchase Date”) at a Repurchase Price equal to (i) 100% of their
principal amount plus accrued and unpaid interest and Additional Amounts, if any, to the Repurchase
Date, until such time as the Company shall have previously repaid, redeemed or otherwise retired
$150,000,000 in aggregate principal amount of the Notes, and thereafter (ii) 101% of the principal
amount of the Notes plus accrued and unpaid interest and Additional Amounts, if any, to the
Repurchase Date (subject to the provisions of Section 4.02(b)).
(a) The Company shall provide the Trustee with notice of an Offer and with all information
required to accompany such notice, not more than ten days after the Change of Control.
(b) Notice of an Offer shall be mailed by the Trustee (at the Company’s expense) not more than
ten Business Days after receipt by the Trustee of the notice in accordance with 5.16(a) to all
Holders of the Notes at their last registered addresses appearing in the Note Register. The Offer
shall remain open from the time of the mailing until the Repurchase Date. The notice shall be
accompanied by the most recently filed annual report (including audited
consolidated financial statements) of the Company and the most recent subsequently filed
quarterly report of the Company (or in the event the Company is not required to prepare any of
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the foregoing reports, the comparable information required pursuant to Section 5.08). The Company
shall provide the Trustee with copies of all materials to be delivered with such notice. The
notice shall contain all instructions and materials necessary to enable such Holders to tender
Notes pursuant to the Offer. The notice shall state:
(1) that the Offer is being made pursuant to this Section 5.16, the reason for the Offer and
that all Notes properly tendered pursuant to the Offer will be accepted for payment;
(2) the material circumstances and relevant material facts regarding such Change of Control;
(3) the Repurchase Price and the Repurchase Date;
(4) the name and address of the Paying Agent and the Trustee and that Notes must be
surrendered to the Paying Agent to collect the Repurchase Price;
(5) that any Note not tendered or accepted for payment will continue to accrue interest;
(6) that any Note accepted for payment pursuant to the Offer shall cease to accrue interest
after the Repurchase Date;
(7) that each Holder electing to have a Note purchased pursuant to an Offer will be required
to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse
of the Note completed, to the Paying Agent at the address specified in the notice prior to the
close of business on the Repurchase Date;
(8) that Holders will be entitled to withdraw their election if the Paying Agent receives, not
later than the close of business on the Business Day immediately preceding the Repurchase Date,
facsimile transmission or letter setting forth the name of the Holder, the principal amount of
Notes the Holder delivered for purchase, the certificate number of Notes the Holder delivered and a
statement that such Holder is withdrawing its election to have such Notes purchased;
(9) that Holders will be issued new Notes equal in principal amount to the unpurchased portion
of the Notes surrendered if such Holders only desire part of such Notes to be purchased; and
(10) any other information required by applicable law, rules and regulations.
To the extent that any of the procedures relating to the making and accepting of an Offer
conflict with the provisions of the Exchange Act, other applicable federal or state law, or the
regulations which may be promulgated thereunder, such provisions of the Exchange Act, other
applicable federal or state law, or the regulations which may be promulgated thereunder shall
govern such Offer in lieu of, and only to the extent of, such conflicting procedures.
(c) On the Repurchase Date, the Company shall (i) accept for payment Notes or portions thereof
properly tendered pursuant to the Offer, (ii) deposit with the Paying Agent
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money sufficient to pay the Repurchase Price of all Notes or portions thereof so accepted, and to pay the expenses of the
Paying Agent to promptly mail or deliver such payments in accordance with the following sentence,
and (iii) deliver to the Trustee Notes so accepted together with an Officers’ Certificate stating
the Notes or portions thereof accepted for payment by the Company. The Paying Agent shall promptly
mail or deliver to Holders of Notes so accepted payment in an amount equal to the Repurchase Price,
and the Company shall execute and the Trustee shall promptly authenticate and mail or deliver to
such Holders a new Note equal in principal amount to any unpurchased portion of the Note properly
tendered if such Holders only desire portions of their Notes to be purchased. The Company will
publicly announce the results of the Offer on or as soon as practicable after the Repurchase Date.
For purposes of this Section 5.16, the Trustee shall act as the Paying Agent.
SECTION 5.17 LIMITATION ON LIENS. The Company shall not, and shall not permit any
Restricted Subsidiary to, create, incur, assume or suffer to exist any Lien upon any of its
property or assets (including assets acquired after the Initial Issuance Date and Capital Stock of
any Restricted Subsidiary of the Company), except for (i) Liens under the Collateral Documents
securing the Notes; (ii) Liens outstanding on the Initial Issuance Date as set forth on
Schedule 5.17 hereto; (iii) Liens for taxes not yet delinquent or which are being contested
in good faith by appropriate proceedings; provided, that adequate reserves with respect thereto are
maintained on the books of the Company or its Restricted Subsidiaries, as the case may be, in
conformity with IAS; (iv) statutory Liens of landlords and Liens of carriers, warehousemen,
mechanics, materialmen, repairmen or other like Liens arising in the ordinary course of business
and not discharged for a period of not more than 90 days after notice thereof or which are being
contested in good faith by appropriate proceedings; (v) pledges or deposits in connection with
workers’ compensation, unemployment insurance and other social security legislation; (vi)
easements, rights-of-way, restrictions, minor defects or irregularities in title and other similar
encumbrances incurred in the ordinary course of business which, in the aggregate, are not
substantial in amount and which do not in any case materially detract from the value of the
property subject thereto or materially interfere with the ordinary conduct of the business of the
Company or such Restricted Subsidiary; (vii) any attachment or judgment Lien not constituting any
Event of Default under clause (9) of Section 6.01; (viii) Liens securing any Indebtedness permitted
to be incurred pursuant to Section 5.14(b)(vii)(C), 5.14(b)(iv) (provided such Lien shall encumber
only the property so acquired), 5.14(b)(ix) or 5.14(b)(x); (ix) any interest or title of a lessor
pursuant to a lease constituting a Capitalized Lease Obligation; (x) Liens on any assets acquired
by the Company or any of its Restricted Subsidiaries after the Initial Issuance Date, which Liens
were in existence on or prior to the acquisition of such assets (to the extent that such Liens were
not created in contemplation of such acquisition), provided, that such Liens are limited to the
asset so acquired and the proceeds thereof; (xi) Liens securing Indebtedness owed to the Company by
any of its Restricted Subsidiaries; (xii) restrictions on the disposition or pledge of securities
imposed by applicable law or by contract with respect to securities received in connection with any
Qualifying Disposition or interests arising in connection with any joint venture agreement;
provided, that (1) any restrictions with respect to securities received in connection with
any Qualifying Disposition (A) shall comply with the provisions of clause (2) under the definition
of Qualifying Disposition and (B) shall not restrict the pledge of such securities as required
pursuant to Section 5.18 other than to require any pledgee or subsequent transferee to be bound by
such restrictions and (2) any restrictions with respect to any joint venture agreement entered into
after the Initial Issuance Date shall not restrict the pledge of such
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interests as required pursuant to the Collateral Documents; and (xiii) any renewal of or substitution for any Lien
permitted by any of the preceding clauses, provided that the Indebtedness secured is not increased
nor the Lien extended to any additional assets. This Section 5.17 does not authorize the incurrence
of any Indebtedness not otherwise permitted by Section 5.14.
SECTION 5.18 RESTRICTION ON ASSET DISPOSITIONS AND QUALIFYING DISPOSITIONS; APPLICATION
OF VAT PROCEEDS.
(a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, make
(1) any Asset Disposition unless (i) the consideration received from such Asset Disposition is
equal to or greater than the fair market value of the assets or stock sold (as determined in good
faith by the Board of Directors and evidenced by a Board Resolution) and (ii) at least 80% of the
consideration received from such Asset Disposition is in the form of cash; provided, that the
amount of (x) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most
recent balance sheet or in the notes thereto) of the Company or such Restricted Subsidiary which
are assumed by the transferee of such assets, including any Indebtedness of a Restricted Subsidiary
whose stock is purchased by the transferee, and (y) any notes or other obligations received by the
Company or any such Restricted Subsidiary from such transferee that are immediately converted by
the Company or such Restricted Subsidiary into cash (to the extent of the cash received) shall be
deemed to be cash for purposes of this Section 5.18(a), or (2) any GTFM Disposition unless such
transaction is a Qualifying Disposition.
(b) The Company shall apply, or cause its Restricted Subsidiaries to apply, any Net Cash
Proceeds from any Asset Disposition or Qualifying Disposition and any VAT Cash Proceeds to (x)
redeem Notes pursuant to Section 4.01 on a date not less than 30 nor more than 60 days after the
receipt by the Company or any of its Restricted Subsidiaries of such Net Cash Proceeds or VAT Cash
Proceeds or (y) repurchase Notes pursuant to Section 5.18(d); provided, that, such
Net Cash Proceeds and VAT Cash Proceeds may be applied, if required by the terms of the Receivables
Securitization Facility, to retire or reduce outstanding obligations under the Receivables
Securitization Facility. To the extent that the Company reborrows any amounts under the
Receivables Securitization Facility which had been previously repaid with any Net Cash Proceeds
from any Asset Disposition or Qualifying Disposition or any VAT Cash Proceeds, such action shall be
deemed an Asset Disposition for purposes of this Indenture and any proceeds received therefrom
shall be deemed Net Cash Proceeds of an Asset Disposition for purposes of this Section 5.18. Until
such time as the Net Cash Proceeds from any Asset Disposition or Qualifying Disposition or VAT Cash
Proceeds are applied in accordance with this Section 5.18(b) or Section 5.18(d), such proceeds
shall be deposited in a collateral account subject to a first priority security interest to secure
the Notes pursuant to the Collateral Documents and shall be invested in Cash Equivalents.
(c) The Company shall pledge, or cause its Restricted Subsidiaries to pledge, any non-cash
proceeds of any Asset Disposition or Qualifying Disposition and any non-cash
VAT Proceeds received by the Company or any of its Restricted Subsidiaries to secure the Notes
pursuant to the terms of the Collateral Documents.
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(d) In the event that the Company or any Restricted Subsidiary has Net Cash Proceeds from an
Asset Disposition or a Qualifying Disposition or has VAT Cash Proceeds that have not been applied
as set forth in Section 5.18(b) (in any such case, “Excess Proceeds”), then the Company
shall make an offer (an “Excess Proceeds Offer”) to purchase on a date not less than 30 nor
more than 60 days after the receipt by the Company or any of its Restricted Subsidiaries of such
Excess Proceeds (the “Proceeds Offer Repurchase Date”) an amount of Notes (together with
accrued and unpaid interest and Additional Amounts, if any, on such Notes, to the Proceeds Offer
Repurchase Date) equal to the amount of such Excess Proceeds, at a Repurchase Price equal to 100%
of the principal amount of the Notes, plus accrued and unpaid interest and Additional Amounts, if
any, to the Proceeds Offer Repurchase Date. To the extent that the Excess Proceeds are
insufficient to repurchase all of the outstanding Notes properly tendered on the Proceeds Offer
Repurchase Date, the Company shall purchase Notes tendered pursuant to the Excess Proceeds Offer on
a pro rata basis.
(i) The Company shall provide the Trustee with notice of an Excess Proceeds Offer and
with all information required to accompany such notice, not more than ten days after the
determination that the Company or any Restricted Subsidiary has Excess Proceeds.
(ii) Notice of an Excess Proceeds Offer shall be mailed by the Trustee (at the
Company’s expense) not more than ten Business Days after receipt by the Trustee of the
notice in accordance with Section 5.18(d)(i) to all Holders of the Notes at their last
registered addresses appearing in the Notes Register. The Excess Proceeds Offer shall
remain open from the time of the mailing until the Proceeds Offer Repurchase Date. The
notice shall be accompanied by the most recently filed annual report (including audited
consolidated financial statements) of the Company and the most recent subsequently filed
quarterly report of the Company (or in the event the Company is not required to prepare any
of the foregoing reports, the comparable information required pursuant to Section 5.08).
The Company shall provide the Trustee with copies of all materials to be delivered with such
notice. The notice shall contain all instructions and materials necessary to enable such
Holders to tender Notes pursuant to the Excess Proceeds Offer. The notice shall state:
(1) that the Excess Proceeds Offer is being made pursuant to this Section 5.18,
the reason for the Excess Proceeds Offer, and that all Notes properly tendered
pursuant to the Excess Proceeds Offer will be accepted for payment, subject to
proration, if applicable;
(2) the amount of the Excess Proceeds, the Repurchase Price and the Proceeds
Offer Repurchase Date;
(3) the name and address of the Paying Agent and the Trustee and that Notes
must be surrendered to the Paying Agent to collect the Repurchase Price;
(4) that any Note not tendered or accepted for payment will continue to accrue
interest;
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(5) that any Note accepted for payment pursuant to the Excess Proceeds Offer
shall cease to accrue interest after the Proceeds Offer Repurchase Date;
(6) that each Holder electing to have a Note purchased pursuant to an Excess
Proceeds Offer will be required to surrender the Note, with the form entitled
“Option of Holder to Elect Purchase” on the reverse of the Note completed, to the
Paying Agent at the address specified in the notice prior to the close of business
on the Proceeds Offer Repurchase Date;
(7) that Holders will be entitled to withdraw their election if the Paying
Agent receives, not later than the close of business on the Business Day immediately
preceding the Proceeds Offer Repurchase Date, facsimile transmission or letter
setting forth the name of the Holder, the principal amount of Notes the Holder
delivered for purchase, the certificate number of Notes the Holder delivered and a
statement that such Holder is withdrawing its election to have such Notes purchased;
(8) that if Notes in a principal amount in excess of the amount of Excess
Proceeds are surrendered pursuant to the Excess Proceeds Offer, the Company shall
purchase Notes on a pro rata basis;
(9) that Holders whose Notes are purchased only in part will be issued new
Notes equal in principal amount to the unpurchased portion of the Notes surrendered;
and
(10) any other information required by applicable law, rules and regulations.
To the extent that any of the procedures relating to the making and accepting of an Excess
Proceeds Offer conflict with the provisions of the Exchange Act, other applicable federal or state
law, or the regulations which may be promulgated thereunder, such provisions of the Exchange Act,
other applicable federal or state law, or the regulations which may be promulgated thereunder shall
govern such Excess Proceeds Offer in lieu of, and only to the extent of, such conflicting
procedures.
On the Proceeds Offer Repurchase Date, the Company shall (i) accept for payment Notes or
portions thereof properly tendered pursuant to the Excess Proceeds Offer, (ii) deposit with the
Paying Agent money sufficient to pay the Repurchase Price of all Notes or portions thereof so
accepted, and to pay the expense of the Paying Agent to promptly mail or deliver such payments in
accordance with the following sentence, and (iii) deliver to the Trustee Notes so accepted together
with an Officers’ Certificate stating the Notes or portions thereof accepted for payment by the
Company. The Paying Agent shall promptly mail or deliver to Holders of Notes so accepted payment in
an amount equal to the Repurchase Price, and the Company shall execute and the Trustee shall
promptly authenticate and mail or deliver to such
Holders a new Note equal in principal amount to any unpurchased portion of the Note
surrendered if such Holders only desire portions of their Notes to be purchased. The Company
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will publicly announce the results of the Excess Proceeds Offer on or as soon as practicable after the
Proceeds Offer Repurchase Date. For purposes of this Section 5.18, the Trustee shall act as the
Paying Agent.
(e) Subject to the provisions of this Section 5.18(e) and Sections 5.18(b) and (c), the
Company and its Restricted Subsidiaries shall be permitted to exchange shares of Capital Stock
(whether outstanding shares or newly issued shares of Capital Stock (other than Disqualified
Stock)) of TMM Multimodal for outstanding Notes (an “Exchange Transaction”); provided, that
(A) after giving effect to such Exchange Transaction, the Company and its Restricted Subsidiaries
control, directly or indirectly, more than 50% of the Capital Stock of TMM Multimodal which under
ordinary circumstances (not dependent upon the happening of a contingency) has voting power to
elect a majority of the board of directors of TMM Multimodal; (B) (i) such Exchange Transaction is
effected pursuant to an exchange offer made to all Holders of the Notes and the Company receives,
at the time of the commencement of the exchange offer to effect such Exchange Transaction, an
opinion from a Designated Investment Bank to the effect that the consideration to be received in
connection with such Exchange Transaction is fair, from a financial point of view, to the Company
and its Restricted Subsidiaries; or (ii) the Company receives, at the time of the commencement of
the exchange offer to effect such Exchange Transaction, an opinion from any of Xxxxxx & Co.,
Xxxxxxxx Xxxxx Xxxxxx & Xxxxx Capital or The Blackstone Group, or their respective successors, to
the effect that the Exchange Transaction is fair, from a financial point of view, to the
non-exchanging Holders of Notes; or (iii) (1) the consideration to be paid to the Company or its
Restricted Subsidiaries in connection with the Exchange Transaction consists of both cash and
Notes, (2) the cash consideration comprises at least two-thirds (2/3) of the total consideration
(based on the principal amount of the Notes exchanged in such Exchange Transaction), (3) the
aggregate principal amount of Notes exchanged in all such Exchange Transactions does not exceed
$50,000,000, (4) unless such Exchange Transaction is effected pursuant to an exchange offer made to
all Holders of the Notes, no Holder participating in such Exchange Transaction shall be an
Affiliate or Associate of the Company and (5) the Company receives an opinion from a Designated
Investment Bank to the effect that the consideration to be received in connection with such
Exchange Transaction is fair, from a financial point of view, to the Company and its Restricted
Subsidiaries; and (C) for purposes of clause (B)(i) and (B)(iii)(5) above, the opinion shall be
required notwithstanding the amount of the consideration for such transaction and fair market value
shall be determined on an enterprise value basis.
SECTION 5.19 LIMITATION ON SALE AND LEASEBACK TRANSACTIONS. The Company shall not,
and shall not permit any Restricted Subsidiary to, enter into any sale and leaseback transaction
unless (i) the Company or such Restricted Subsidiary could have incurred Indebtedness and secured a
Lien on Indebtedness in an amount equal to the Attributable Debt relating to such sale and
leaseback transaction pursuant to the provisions of Sections 5.14 and 5.17 or (ii) the proceeds of
such sale and leaseback transaction are at least equal to the fair value (as determined in good
faith by the Board of Directors and evidenced by a Board Resolution) of the property and the
Company or such Restricted Subsidiary applies or
causes to be applied an amount in cash equal to the net proceeds from such sale are applied
(A) in the same manner as Net Cash Proceeds pursuant to Section 5.18(b) or (d) or (B) to purchase
assets or business in the shipping, transportation and distribution services industry, in each case
within 180 days of the effective date of any such sale.
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SECTION 5.20 LIMITATION ON INVESTMENTS. The Company shall not, and shall not
permit any of its Restricted Subsidiaries to, make any Investment in any Person except: (i) any
Investment in any Cash Equivalent; (ii) any Investment that constitutes a Restricted Payment
pursuant to Section 5.12 (a)(iv) to the extent permitted by Section 5.12(a)(iv); (iii) Investments
in any Person engaged in the same or a similar line of business as the Company and its consolidated
Subsidiaries or made for the purpose of maintaining, enhancing the productivity of or expanding the
capabilities of the Company and its consolidated Subsidiaries in the worldwide transportation,
shipping and distribution services industry, (provided (x) the assets or securities acquired
pursuant to such Investments are pledged as additional Collateral pursuant to Article Fifteen or
(y) such Investments are made as part of, or directly related to, a Qualifying PEMEX Securitization
Transaction); (iv) Investments, not to exceed $15 million at any one time outstanding, in the
publicly traded equity securities of any other companies (provided such Investments are pledged as
additional Collateral pursuant to Article Fifteen); (v) securities received as consideration in
connection with an Asset Disposition or a Qualifying Disposition; (vi) Investments in Wholly Owned
Subsidiaries; or (vii) Investments existing on the Initial Issuance Date in any Restricted
Subsidiary or as set forth on Schedule 5.20.
SECTION 5.21 LIMITATION ON BUSINESS ACTIVITIES. The Company shall not, and shall
not permit any of the Restricted Subsidiaries to, engage in any type of business other than the
businesses the Company and its consolidated Subsidiaries are engaged in on the date of this
Indenture, other business activities within the worldwide transportation, shipping and distribution
services industry, and other business activities complementary, incidental or reasonably related
thereto.
SECTION 5.22 PAYMENTS FOR CONSENT. None of the Company, any of its consolidated
Subsidiaries or any of their respective Affiliates or Associates shall, directly or indirectly, pay
or cause to be paid any consideration, whether by way of interest, fee or otherwise, to any Holder
of any Notes for or as an inducement to any consent, waiver or amendment of any of the terms or
provisions of this Indenture, the Notes, the Guarantees or the Collateral Documents, unless such
consideration is offered to be paid or agreed to be paid to all Holders of the Notes which so
consent, waive or agree to amend in the time frame set forth in the solicitation documents relating
to such consent, waiver or agreement.
SECTION 5.23 ADDITIONAL GUARANTEES; LIMITATION ON ISSUANCES OF GUARANTEES BY RESTRICTED
SUBSIDIARIES.
(a) The Company shall cause each of (i) TMM Multimodal, upon the exercise in full of the GM
Put (or the exercise in full by the Company or any Restricted Subsidiary of the
related call option) and the purchase by the Company or a Restricted Subsidiary of the Capital
Stock of TMM Multimodal pursuant to such exercise, (ii) any Restricted Subsidiary that becomes a
Wholly Owned Subsidiary after the Initial Issuance Date (whether such Restricted Subsidiary became
a Subsidiary or a Restricted Subsidiary of the Company before or after the Initial Issuance Date),
and (iii) any Restricted Subsidiary that receives any assets upon a disposition of assets by a
Guarantor other than in connection with a Qualifying PEMEX Securitization Transaction, within five
Business Days thereafter, to execute and deliver a supplemental indenture to this Indenture
providing for a Guarantee of the Company’s obligations
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under the Notes, this Indenture and the
Collateral Documents. The Company shall cause any such new Guarantor to pledge or cause to be
pledged for the benefit of the Holders of the Notes and to grant or cause to be granted to the
Holders of the Notes a first priority security interest in all of the assets and properties of such
Guarantor, and in furtherance thereof to enter into one or more Collateral Documents (or
supplements or amendments thereto) in the same manner specified in Article Fifteen as if such
Guarantor were a Guarantor on the Initial Issuance Date; provided that such Guarantor is not
restricted from granting such pledge and security interest pursuant to any contractual arrangements
with third parties existing as of the Initial Issuance Date.
(b) The Company will not permit any Restricted Subsidiary, directly or indirectly, to
Guarantee any Indebtedness of the Company (“Guaranteed Indebtedness”) which is pari passu
with or subordinate in right of payment to the Notes, unless (i) such Restricted Subsidiary
simultaneously executes and delivers a supplemental indenture to this Indenture providing for a
Guarantee of the Company’s obligations under the Notes, this Indenture and the Collateral Documents
by such Restricted Subsidiary in the form provided herein in an amount at least equal to the amount
of Guaranteed Indebtedness that is Guaranteed by such Restricted Subsidiary and (ii) such
Restricted Subsidiary waives and will not in any manner whatsoever claim or take the benefit or
advantage of any rights or reimbursements, indemnity or subrogation or any other rights against the
Company or any other Restricted Subsidiary as a result of any payment by such Restricted Subsidiary
under its Guarantee; provided that this paragraph shall not be applicable to (x) any Guarantee of
any Restricted Subsidiary that existed at the time such Person became a Restricted Subsidiary and
was not incurred in connection with, or in contemplation of, such Person becoming a Restricted
Subsidiary, or (y) any Guarantee by one Restricted Subsidiary of the Indebtedness of another
Restricted Subsidiary if at the time such Guarantee is provided the other Restricted Subsidiary
could have incurred the Guaranteed Indebtedness pursuant to Section 5.14(b). If the Guaranteed
Indebtedness is (A) pari passu with the Notes, then the Guarantee of such Guaranteed Indebtedness
shall be pari passu with, or subordinated to, the Guarantee or (B) subordinated to the Notes, then
the Guarantee of such Guaranteed Indebtedness shall be subordinated to the Guarantee at least to
the extent that the Guaranteed Indebtedness is subordinated to the Notes.
Notwithstanding the foregoing, any Guarantee by a Restricted Subsidiary may provide that it
shall be automatically and unconditionally released and discharged upon (i) any sale, exchange or
transfer, to any Person not an Affiliate of the Company, of all the Company’s and each Restricted
Subsidiary’s Capital Stock in, or all or substantially all the assets of, such Restricted
Subsidiary (which sale, exchange or transfer is not prohibited by this Indenture) or (ii) the
release or discharge of the Guarantee which resulted in the creation of such Guarantee, except a
discharge or release by or as a result of payment under such Guarantee.
SECTION 5.24 RESTRICTION ON INVESTMENT ACTIVITY. The Company shall not, and shall not
permit any Restricted Subsidiary to, become an investment company required to register as an
investment company under the Investment Company Act of 1940, as amended, provided, however, that
the Company or any Restricted Subsidiary shall not be deemed to have violated this Section 5.24 so
long as the Company or such Restricted Subsidiary, as the case may be, shall have obtained
exemptive relief or shall otherwise have qualified for any applicable exclusion from investment
company status within one-hundred-and-eighty (180) days after the Company or such Restricted
Subsidiary shall have become such an investment company.
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SECTION 5.25 RULE 144A INFORMATION. Upon request of a Holder of an Initial Private
Note, the Company shall promptly furnish to such Holder or to a prospective purchaser of such Note
designated by such Holder, as the case may be, the information required to be delivered pursuant
to Rule 144A(d)(4) under the Securities Act in order to permit compliance by such Holder with Rule
144A in connection with the resale of such Note by such Holder.
SECTION 5.26 DELAY FEE. If at any time any Delay Fee (as defined in the Registration Rights
Agreement) becomes payable by the Company pursuant to the Registration Rights Agreement, the
Company shall duly and promptly (i) deliver to the Trustee an Officers’ Certificate to that effect
and stating (a) the amount of such Delay Fee that is payable and (b) the date on which such Delay
Fee is payable pursuant to the terms of the Registration Rights Agreement and (ii) pay to each
Holder such Delay Fee in such amount and on such date as set forth in the Registration Rights
Agreement. Unless and until the Trustee receives such an Officers’ Certificate, the Trustee may
assume without inquiry that no Delay Fee is payable.
SECTION 5.27 REAL ESTATE COLLATERAL. The Company shall, or shall cause the Guarantors (as
applicable) to, make, complete, execute and deliver within sixty (60) days of the Initial Issuance
Date all such filings required under Mexican law before the respective Public Registries of
Property of the locality in which each real estate property of the Company or the Guarantors is
situated in accordance with and as contemplated by the Collateral Documents.
SECTION 5.28 CERTAIN AGREEMENTS RELATING TO THE RECEIVABLES SECURITIZATION
FACILITY.
The Company and each of the Guarantors agree that the amendments to the Receivables
Securitization Facility to be implemented pursuant to the Receivables
Letter Agreement will permit
(i) the incurrence of the Indebtedness under the Notes and the Guarantees to be issued under this
Indenture without any breach of, or the occurrence of a “Rapid Amortization Event” (as defined in
the Receivables Securitization Facility) under, the Receivables Securitization Facility and (ii)
the security interests and Liens on the Collateral set forth in the Collateral Documents.
ARTICLE SIX
REMEDIES
SECTION 6.01 EVENTS OF DEFAULT. “Event of Default,” wherever used herein,
means any one of the following events:
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(1) default in the payment of any interest or Additional Amount upon any Note when it
becomes due and payable, and continuance of such default for a period of five Business Days;
or
(2) default in the payment of the principal of (or premium, if any, on) any Note when
due or at its maturity; or
(3) default in the observance or performance by the Company of its obligations under
Section 5.04, Section 5.08(7) or Article Eleven; or
(4) default in the performance, or breach, of any other covenant or warranty of the
Company or the Guarantors in this Indenture (other than a covenant or warranty a default in
whose performance or whose breach is elsewhere in this Section specifically dealt with), and
continuance of such default or breach for a period of 30 days after there has been given to
the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25%
in principal amount of the Outstanding Notes a written notice specifying such default or
breach and requiring it to be remedied and stating that such notice is a “Notice of Default”
hereunder; or
(5) a default under any bond, debenture, note or other evidence of indebtedness for
money borrowed by the Company or any Restricted Subsidiary, including the Receivables
Securitization Facility, or under any mortgage, indenture or instrument under which there
may be issued or by which there may be secured or evidenced indebtedness for money borrowed,
individually or in the aggregate, in excess of $10,000,000, whether such indebtedness now
exists or shall hereafter be created, which default shall constitute a failure to pay any
portion of the principal of such indebtedness when due and payable or shall have resulted in
such indebtedness becoming or being declared due and payable prior to the date on which it
would otherwise have become due and payable; or
(6) a default in the performance, or breach, of any covenant or warranty under any of
the Collateral Documents by the Company or any Restricted Subsidiary (including any failure
to pledge any assets acquired by the Company or any Restricted Subsidiary as required
pursuant hereto or thereto), after giving effect to any notice and cure periods set forth
herein or in such Collateral Documents; or
(7) the entry by a court having jurisdiction in the premises of (A) a decree or order
for relief in respect of the Company or any Restricted Subsidiary in an involuntary case or
proceeding under any applicable Federal, state or foreign bankruptcy, insolvency,
reorganization or other similar law, including the Ley de Concursos Mercantiles (each, a
“Bankruptcy Law”) or (B) a decree or order adjudging the Company or any Restricted
Subsidiary a bankrupt or insolvent, or approving as properly filed a petition seeking
reorganization, suspension of payments, arrangement, adjustment or composition of or in
respect of the Company or any Restricted Subsidiary under any applicable law, or appointing
a custodian, receiver, liquidator, assignee, sindico, trustee, sequestrator or other similar
official of the Company or any Restricted Subsidiary or of any substantial part of its
property, or ordering the winding up or liquidation of its affairs,
and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect
for a period of 90 consecutive days; or
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(8) the commencement by the Company or any Restricted Subsidiary of a voluntary case or
proceeding under any applicable Bankruptcy Law or of any other case or proceeding to be
adjudicated a bankrupt or insolvent, or the consent by the Company or any Restricted
Subsidiary to the entry of a decree or order for relief in respect of the Company or such
Restricted Subsidiary in an involuntary case or proceeding under any Bankruptcy Law or to
the commencement of any bankruptcy or insolvency case or proceeding against it, or the
filing by it of a petition or answer or consent seeking reorganization or relief under any
applicable Bankruptcy Law, or the consent by it to the filing of such petition or to the
appointment of or taking possession by a custodian, receiver, liquidator, assignee, sindico,
trustee, sequestrator or similar official of the Company or such Restricted Subsidiary or of
any substantial part of its property, or the making by it of an assignment for the benefit
of creditors, or the admission by it in writing of its inability to pay its debts generally
as they become due, or the taking of corporate action by the Company or such Restricted
Subsidiary in furtherance of any such action; or
(9) a final judgment or final judgments for the payment of money are entered by a court
of competent jurisdiction against the Company or any Restricted Subsidiary and either (A) an
enforcement proceeding shall have been commenced by any creditor upon such judgment or (B)
such judgment remains unsettled, undischarged or unstayed for a period (during which
execution shall not be effectively stayed) of 60 consecutive days after such judgment
becomes final, and the aggregate amount of all such judgments exceeds $10,000,000;
provided, that the entry of any judgment as a result of (A) a default in the payment
of amounts due by the Company or any Restricted Subsidiary in connection with the Put or due
by the Company or any Restricted Subsidiary to KCS as a result of payments rendered by KCS
in connection with the Put or (B) litigation or other proceedings in connection with the Put
or any disputes with KCS relating to or arising out of the KCS Transaction or other disputes
with KCS existing at the Initial Issuance Date relating to Grupo TFM or TFM shall not
constitute an Event of Default under this clause (9); provided, further, that the issuance
of an order (whether pre-judgment or after the entry of such judgment) which order will,
upon execution, result in the attachment of assets of the Company or its Restricted
Subsidiaries having a value in excess of (a) $10,000,000, which attachment represents a Lien
on assets of the Company or such Restricted Subsidiary in which the Collateral Agent has a
security interest pursuant to the Collateral Documents and which has priority over the
security interest on such assets pursuant to the Collateral Documents or (b) $25,000,000,
which attachment represents a Lien on assets of the Company or such Restricted Subsidiary in
which the Collateral Agent does not have a security interest pursuant to the Collateral
Documents shall
constitute an Event of Default, provided, that no Default or Event of Default shall
occur under clause (b) above until the 60th day following such order or if,
within such 60 day period, the Company delivers to the Trustee an opinion from one of the
Designated Investment Banks to the effect that the net value of the equity of the Company
(taking into account all Indebtedness of the Company and its
Restricted Subsidiaries and the judgment that resulted in such order) is equal to at least 5% of the principal amount of the
Notes Outstanding at the date of such opinion; or
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(10) the issuance or reinstatement of any medida cautelar, suspension order or similar
order issued at the request of, or with the acquiescence of, the Company or any Affiliate or
Associate by a court or other governmental body of competent jurisdiction that affects or
could affect the Company’s or its Restricted Subsidiaries’ obligations with respect to the
Notes, the Guarantees, this Indenture or the Collateral Documents; or
(11) the failure of the Company or any of its Restricted Subsidiaries to (i) apply any
Net Cash Proceeds from any Asset Disposition or Qualifying Disposition or any VAT Cash
Proceeds as provided in Section 5.18(b) or (d), which failure continues for a period of five
Business Days after the Company is required to apply such proceeds pursuant to Section
5.18(b) or (d) or (ii) pledge (as a first priority Lien) any non-cash proceeds from any
Asset Disposition or Qualifying Disposition or non-cash VAT Proceeds as required by Section
5.18(c) and the Collateral Documents, which failure continues for a period of five Business
Days after the receipt of such proceeds; or
(12) the failure of the Company to cause any Restricted Subsidiary that is required to
execute and deliver a Guarantee to execute and deliver such Guarantee and any accompanying
Collateral Document as required by Section 5.23 or Article Fourteen; or
(13) except as permitted by this Indenture, any Guarantee is held in any judicial
proceeding to be unenforceable or invalid in any material respect or shall cease for any
reason to be in full force and effect or any Guarantor, or any Person acting on behalf of
any Guarantor, shall deny or disaffirm its obligations under its Guarantee.
For the avoidance of doubt, the foregoing clause (9) of this Section 6.01 shall not be
construed to preclude the occurrence of an Event of Default if any of the events set forth in such
clause results in an event that would be an Event of Default under clauses (7) or (8) of this
Section 6.01.
SECTION 6.02 DEFAULT RATE OF INTEREST. Following an Event of Default, the rate at
which the Notes accrue interest shall increase by 2.00% per annum (the “Default Rate”). In
addition, following an Event of Default, any unpaid interest and Additional Amounts, if any, will
accrue interest at the Default Rate until such time as full payment is made thereon.
SECTION 6.03 ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT. If an Event of Default (other than an Event of Default specified in clause (7) or (8) of
Section 6.01) occurs and is continuing, then and in every such case the Trustee or the Holders of
not less than 25% in principal amount of the Outstanding Notes may declare the principal of all the
Notes, together with all accrued and unpaid interest and Additional Amounts, if any, to be due and
payable immediately, by a notice in writing to the Company (and to the Trustee if given by
Holders), and upon any such declaration such amounts shall become immediately due and payable.
Notwithstanding the foregoing, if an Event of Default specified in
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clause (7) or (8) of Section
6.01 occurs and is continuing, the principal of the Notes, together with all accrued and unpaid
interest and Additional Amounts, if any, shall automatically be accelerated and such amounts, as of
the date of acceleration, shall be and become due and payable immediately, without any
notice or other act on the part of the Trustee or any Holder of the Notes.
Upon any acceleration pursuant to this Section 6.03, the Trustee and the Collateral Agent,
through their agents and attorneys, may proceed, and upon the request of Holders of not less than a
majority in principal amount of the Outstanding Notes shall proceed, to foreclose on the
Collateral. To institute such foreclosure proceedings, the Trustee shall deliver a Notice of Sale
as prescribed by each applicable Collateral Document, in each case with a copy to the Company.
At any time after such a declaration of acceleration has been made and before a judgment or
decree for payment of the money due has been obtained by the Trustee as hereinafter in this Article
provided, the Holders of a majority in principal amount of the Outstanding Notes, by written notice
to the Company and the Trustee, may rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum sufficient to pay:
(A) all overdue interest and Additional Amounts, if any, on all Notes,
(B) the principal of (and premium, if any, on) any Notes which have become due
otherwise than by such declaration of acceleration and interest thereon at the rate borne by
the Notes,
(C) to the extent that payment of such interest is lawful, interest upon overdue
interest and Additional Amounts, if any, at the rate borne by the Notes, and
(D) all sums paid or advanced by the Trustee hereunder and the expenses, disbursements,
advances and reasonable compensation of the Trustee, its agents and counsel; and
(2) all Events of Default, other than the non-payment of the principal of Notes which have
become due solely by such declaration of acceleration, have been cured or waived as provided in
Section 6.14.
No such rescission shall affect any subsequent default or impair any right consequent thereon.
SECTION 6.04 COLLECTION OF INDEBTEDNESS BY TRUSTEE; TRUSTEE MAY PROVE DEBT. The
Company covenants that:
(1) in case default shall be made in the payment of any installment of interest or
Additional Amounts on any of the Notes, as and when the same shall become due and payable,
and such default shall have continued for a period of five Business Days, and
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(2) in case default shall be made in the payment of the principal of or premium, if
any, on any of the Notes when and as the same shall have become due and payable, whether
upon maturity of the Notes or upon redemption or upon declaration or otherwise,
then, upon demand of the Trustee, the Company will pay to the Trustee, for the benefit of the
Holders of such Notes, the whole amount that then shall have become due and payable on such Notes
for principal and premium, if any, interest and Additional Amounts with interest upon the overdue
principal and premium, if any, of each such Note and (to the extent legally enforceable under
applicable law) upon any installments of interest and Additional Amounts, at the rate borne by the
Notes; and, in addition thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including reasonable compensation to the Trustee, its agents, attorneys and
counsel, and any expenses or liabilities incurred by the Trustee hereunder.
In addition to the rights and powers set forth in Section 317(a) of the Trust Indenture Act,
the Trustee shall be entitled to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee and of the Holders of the Notes allowed in any
judicial proceeding relative to the Company, any Guarantor or other obligor upon the Notes, its
creditors, or its property, and to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute the same after the deduction of its charges and
expenses; and any receiver, assignee or trustee in bankruptcy or reorganization is hereby
authorized by each of the Holders to make such payments to the Trustee, and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee
any amount due it for compensation and expenses, including counsel fees incurred by it up to the
date of such distribution.
If an Event of Default occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and enforce such rights, whether
for the specific enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 6.05 TRUSTEE MAY FILE PROOFS OF CLAIM. In case of the pendency of any
receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to the Company, any Guarantor or any other
obligor upon the Notes or the property of the Company, any Guarantor or of such other obligor or
their creditors, the Trustee (irrespective of whether the principal of the Notes shall then be due
and payable as therein expressed or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall be entitled and empowered,
by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of principal (and premium,
if any) and interest and Additional Amounts, if any, owing and unpaid in respect of
the Notes and to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee and any predecessor trustee
(including any claim for reasonable compensation, expenses,
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disbursements and advances of the Trustee and any predecessor trustee, its agents and counsel) and of
the Holders allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property payable or deliverable
on any such claims and to distribute the same; and any custodian, receiver,
assignee, trustee, liquidator, sequestrator or other similar official in any such
judicial proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it for
expenses, disbursements, advances and reasonable compensation of the Trustee and any
predecessor trustee, their agents and counsel, and any other amounts due the Trustee
and any predecessor trustee under Section 7.06.
Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to
or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
SECTION 6.06 TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF NOTES. All rights of
action and claims under this Indenture, the Collateral Documents or the Notes (including the
Guarantees) may be prosecuted and enforced by the Trustee without the possession of any of the
Notes or the production thereof in any proceeding relating thereto, and any such proceeding
instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of expenses, disbursements, advances
and reasonable compensation of the Trustee, its agents and counsel, be for the ratable benefit of
the Holders of the Notes in respect of which such judgment has been recovered.
SECTION 6.07 APPLICATION OF MONEY OR PROPERTY COLLECTED. Subject to Article
Thirteen, any money or property collected by the Trustee pursuant to this Article shall be applied
in the following order, at the date or dates fixed by the Trustee and, in case of the distribution
of such money or property on account of principal (or premium, if any), interest or Additional
Amounts, upon presentation of the Notes and the notation thereon of the payment if only partially
paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any predecessor trustee under
Section 7.06; and
SECOND: To the payment of the amounts then due and unpaid for principal of (and
premium, if any), interest and Additional Amounts on the Notes in respect of which or for
the benefit of which such money or property has been collected, ratably, without preference
or priority of any kind, according to the amounts due and payable on such Notes for
principal (and premium, if any) and interest and Additional Amounts, respectively; and
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THIRD: to the Company or the Guarantors or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to Holders of Notes
pursuant to this Section 6.07.
SECTION 6.08 LIMITATION ON SUITS. No Holder of any Note shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture, the Guarantees or
the Collateral Documents, or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless:
(1) such Holder has previously given written notice to the Trustee of a continuing
Event of Default;
(2) the Holders of not less than 25% in aggregate principal amount of the Outstanding
Notes shall have made written request to the Trustee to institute proceedings in respect of
such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee indemnity reasonably
satisfactory against the costs, expenses and liabilities to be incurred in compliance with
such request;
(4) the Trustee for 60 days after its receipt of such notice, request and offer of
indemnity or security has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given to the Trustee
during such 60-day period by the Holders of at least a majority in aggregate principal
amount of the Outstanding Notes;
it being understood and intended that no one or more Holders shall have any right in any
manner whatever by virtue of, or by availing of, any provision of this Indenture, the
Guarantees or the Collateral Documents to affect, disturb or prejudice the rights of any
other Holders, or to obtain or to seek to obtain priority or preference over any other
Holders or to enforce any right under this Indenture, the Guarantees or the Collateral
Documents, except in the manner herein provided and for the equal and ratable benefit of all
the Holders.
SECTION 6.09 RIGHTS OF HOLDERS OF NOTES TO RECEIVE PAYMENT. Notwithstanding any
other provision of this Indenture, the right of any Holder of a Note to receive payment of
principal and interest and Additional Amounts, if any, on such Note, on or after the respective due
dates expressed in such Note (including in connection with an offer to purchase), or to bring suit
for the enforcement of any such payment on or after such respective dates, shall not be impaired or
affected without the consent of such Holder, except that no Holder shall have the right to
institute any such suit, if and to the extent that the institution or prosecution thereof or the
entry of judgment therein would under applicable law result in the surrender, impairment, waiver,
or loss of the Liens pursuant to the Collateral Documents upon any property or assets subject to
the Liens.
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SECTION 6.10 RESTORATION OF RIGHTS AND REMEDIES. If the Trustee or any Holder has
instituted any proceeding to enforce any right or remedy under this Indenture, the Guarantees or
the Collateral Documents and such proceeding has been discontinued or abandoned for any reason, or
has been determined adversely to the Trustee or to such Holder, then and in every such case,
subject to any determination in such proceeding, the Company, the Guarantors, the Trustee and the
Holders shall be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
SECTION 6.11 RIGHTS AND REMEDIES CUMULATIVE. Except as otherwise provided with
respect to the replacement or payment of mutilated, destroyed, lost or stolen Notes in the last
paragraph of Section 3.09, no right or remedy herein conferred upon or reserved to the Trustee or
to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy
shall, to the extent permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion
or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 6.12 DELAY OR OMISSION NOT WAIVER. No delay or omission of the Trustee or
of any Holder of any Note to exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to
the Holders may be exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders, as the case may be.
SECTION 6.13 CONTROL BY HOLDERS. The Holders of at least a majority in principal
amount of the Outstanding Notes shall have the right to direct the time, method and place of
conducting any proceeding for any
remedy available to the Trustee or exercising any trust or power conferred on the Trustee,
provided that:
(1) such direction shall not be in conflict with any rule of law or with this
Indenture,
(2) the Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction, and
(3) the Trustee may decline to follow any such direction if the Trustee’s board of
directors or executive committee of directors or Responsible Officers shall determine in
good faith that the action or proceeding so directed would involve it in personal liability,
or if the Trustee in good faith shall determine that the actions or forbearances specified
in or pursuant to such direction would be unduly prejudicial to the interests of Holders not
joining in the giving of such direction, it being understood that the Trustee shall have no
duty to ascertain whether or not such actions or forbearances are unduly prejudicial to such
Holders.
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SECTION 6.14 WAIVER OF PAST DEFAULTS. The Holders of at least a majority in
aggregate principal amount of the Outstanding Notes may on behalf of the Holders of all the Notes
waive any past default hereunder and its consequences, except a default
(1) in the payment of the principal of (or premium, if any), interest or Additional
Amounts on any Note, or
(2) in respect of a covenant or provision hereof which under Article Ten cannot be
modified or amended without the consent of the Holder of each Outstanding Note affected.
Upon any such waiver, such default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other default or impair any right consequent thereon.
ARTICLE SEVEN
CONCERNING THE TRUSTEE
SECTION 7.01 DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the Trustee shall exercise such of
the rights and powers vested in it by this Indenture and use the same degree of care and skill in
their exercise as a prudent person would exercise or use under the circumstances in the conduct of
its own affairs.
(b) Except during the continuance of an Event of Default:
(1) The Trustee need perform only those duties that are specifically set forth in this
Indenture and no others.
(2) In the absence of bad faith on its part, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the requirements of this
Indenture, but in the case of any certificate or opinion which by any provision hereof is
specifically required to be furnished to the Trustee or which the Trustee relies on, the
Trustee shall examine the certificates and opinions submitted to determine whether or not
they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its negligent actions, its negligent
failure to act or its willful misconduct, except that:
(1) This paragraph does not limit the effect of paragraph (b) of this Section 7.01;
(2) The Trustee shall not be liable for any error of judgment made in good faith by a
Responsible Officer, unless it is proved that the Trustee was negligent in ascertaining the
pertinent facts;
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(3) The Trustee shall not be liable with respect to any action it takes or omits to
take in good faith in accordance with a direction received by it pursuant to Section 6.13;
and
(4) No provision of this Indenture shall require the Trustee to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of its duties
hereunder or in the exercise of any of its rights or powers if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it.
(d) Every provision of this Indenture that in any way relates to the Trustee is subject to
paragraphs (a), (b) and (c) of this Section 7.01.
(e) The Trustee may refuse to perform any duty or exercise any right or power unless it
receives security or indemnity satisfactory to it against any loss, cost, liability or expense.
(f) The Trustee shall not be liable for interest on any money received by it.
(g) Money held in trust by the Trustee need not be segregated from other funds except to the
extent required by law.
(h) The Trustee shall make payments pursuant to Sections 5.01, 5.16 and 5.18 to the Holders as
soon as practicable in accordance with the terms of this Indenture after receipt from the Company
or the Guarantors of the funds.
SECTION 7.02 CERTAIN RIGHTS OF TRUSTEE. Except as otherwise provided in Section 315 of the Trust Indenture Act:
(a) The Trustee may rely and shall be protected in acting, or refraining from acting, upon any
resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order,
bond, debenture or other paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) Any request, direction, order or demand of the Company mentioned herein shall be
sufficiently evidenced by an instrument signed in the name of the Company by the (i) Chairman of
the Board of Directors, a Vice Chairman of the Board of Directors, its Director General, its
President or any Vice President and (ii) its Director of Administration, its Secretary or an
Assistant Secretary or its Treasurer or an Assistant Treasurer (unless other evidence in respect
thereof be herein specifically prescribed); and any resolution of the Board of Directors may be
evidenced to the Trustee by a copy thereof certified by the Secretary or an Assistant Secretary of
the Company;
(c) Before it acts or refrains from acting, the Trustee may consult with counsel and the
advice of counsel or any Opinion of Counsel shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance
thereon;
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(d) The Trustee shall be under no obligation to exercise any of the rights or powers vested in
it by this Indenture at the request, order or direction of any of the Holders, pursuant to the
provisions of this Indenture, unless such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which may be incurred therein or
thereby;
(e) The Trustee shall not be liable for any action taken, suffered or omitted by it in good
faith and believed by it to be authorized or within the discretion or rights or powers conferred
upon it by this Indenture;
(f) Prior to the occurrence of an Event of Default hereunder and after the curing or waiving
of all Events of Default, the Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, appraisal, bond, debenture or other paper or document with
respect to the Notes unless requested in writing to do so by the Holders of not less than a
majority in aggregate principal amount of the Notes then Outstanding; provided, however, that (i)
if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled
to examine, during normal business hours and upon reasonable notice, the books, records and
premises relevant to such inquiry or investigation, either personally or by agent or attorney; and
(ii) if the payment within a reasonable time to the Trustee of the costs, expenses or liabilities
likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee,
not reasonably assured to the Trustee by the security afforded to it by the terms of this
Indenture, the Trustee may require reasonable indemnity or security against such expenses or
liabilities as a condition to so proceeding. The reasonable expense of every such investigation
shall be paid by the Company or, if paid by the Trustee, shall be repaid by the Company upon
demand;
(g) The Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys, and the Trustee shall not be
responsible for any misconduct or negligence on the part of any agent or attorney appointed with
due care by it hereunder;
(h) The Trustee shall not be deemed to have knowledge of a Default or Event of Default until a
Responsible Officer has received written notice thereof;
(i) The Trustee shall not have any duty, express or implied, to monitor the financial
condition of the Company;
(j) The Holders, by accepting the Notes, authorize the Trustee to execute any such Collateral
Documents as the Trustee shall reasonably be requested to execute; and
(k) The rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended to, to the extent
reasonable, and shall be enforceable by, to the extent reasonable, the Trustee in each of its
capacities hereunder, and to each agent, custodian and other Person employed by it to act
hereunder.
SECTION 7.03 TRUSTEE NOT RESPONSIBLE FOR RECITALS, ETC. The recitals contained
herein and in the Notes and the Guarantees, except the Trustee’s
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certificate and the representation
as to the power of the Trustee to enter into this Indenture and accept and execute the trusts
hereby created, shall be taken as the statements of the Company and the Guarantors, and the Trustee
assumes no responsibility for the correctness of the same. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the Notes other than its certificate of
authentication. The Trustee shall not be (i) accountable for the use or application by the Company
of any of the Notes or of the proceeds of such Notes, (ii) accountable for any money paid to the
Company, or upon the Company’s direction, if made under and in accordance with any provision of
this Indenture, or (iii) responsible for the use or application of any money received by any Paying Agent other
than itself.
SECTION 7.04 TRUSTEE AND OTHERS MAY HOLD NOTES. The Trustee or any Paying Agent or
Note Registrar or any other agent of the Company or the Trustee, in its individual or any other
capacity, may become the owner or pledgee of Notes and, subject to Sections 7.08 and 7.15, may
otherwise deal with the Company, any Guarantor or any other obligor on the Notes with the same
rights it would have if it were not Trustee, Paying Agent, Note Registrar or such other agent.
SECTION 7.05 MONEYS HELD BY TRUSTEE OR PAYING AGENT. Subject to Sections 12.02 and
12.03, all moneys received by the Trustee or any Paying Agent shall, until used or applied as
herein provided, be held in trust for the purposes for which they were received, but need not be
segregated from other funds except to the extent required by law. Neither the Trustee nor any
Paying Agent shall be under any liability for
interest on any moneys received by it hereunder except such as it may agree with the Company
to pay thereon. So long as no Event of Default shall have occurred and be continuing, all interest
earned on such moneys shall be paid to the Company from time to time upon a Company Order. The
provisions of this Section 7.05 shall not apply to the Company acting as its own Paying Agent
pursuant to Section 5.03.
SECTION 7.06 COMPENSATION OF TRUSTEE AND ITS LIEN. The Company covenants and
agrees to pay to the Trustee from time to time, and the Trustee shall be entitled to, reasonable
compensation for all services rendered by it hereunder and under the Collateral Documents (which
shall be agreed to from time to time by the Company and the Trustee in writing and which shall not
be limited by any provision of law in regard to the compensation of a trustee of an express trust),
and, except as herein otherwise expressly provided, the Company will pay or reimburse the Trustee
upon its request for all reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with any of the provisions of this Indenture or any of the Collateral
Documents (including reasonable compensation and the expenses and disbursements of its counsel and
of all persons not regularly in its employ) except any such expense, disbursement or advance as may
arise from its negligence or bad faith. If any property other than cash shall at any time be
subject to the lien of this Indenture, the Trustee, if and to the extent authorized by a
receivership or bankruptcy court of competent jurisdiction or by the supplemental instrument
subjecting such property to such lien, shall be entitled to make advances for the purpose of
preserving such property or of discharging tax liens or other prior liens or encumbrances thereon.
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Subject to the further provisions of this paragraph, the Company and the Guarantors jointly
and severally covenant and agree to indemnify the Trustee for, and to hold it harmless against, any
and all loss, liability, claim, damage or expense incurred without negligence or bad faith on the
part of the Trustee, arising out of or in connection with the acceptance or administration of the
trust or trusts hereunder, including liability which the Trustee may incur as a result of failure
to withhold, pay or report taxes arising out of the transactions contemplated by this Indenture
(other than taxes based on the Trustee’s income) and including the costs and expenses of defending
itself against any claim or liability in the premises. The Trustee shall notify the Company
promptly of any claim for which it may seek indemnity. The Company shall defend the claim, and the
Trustee shall cooperate in the defense. The Trustee may have separate counsel, and the Company
shall pay the reasonable fees and expenses of such counsel. The Company shall have no obligation
to pay for any settlement of any such claim made without its consent.
The obligations of the Company and the Guarantors under this Section 7.06 shall survive the
resignation of the Trustee and/or the satisfaction and discharge or termination of this Indenture.
The obligations of the Company under this Section 7.06 shall constitute additional
indebtedness hereunder. Such additional indebtedness shall be secured by a lien prior to that of
the Notes upon all property and funds held or collected by the Trustee as such, except funds held
in trust for the benefit of the Holders of particular Notes.
When the Trustee incurs expenses or renders services after an Event of Default specified in
Section 6.01(7) or (8) occurs, the expenses and the compensation for the services are intended to
constitute expenses of administration under any Bankruptcy Law.
SECTION 7.07 RIGHT OF TRUSTEE TO RELY ON CERTIFICATE OF CERTAIN OFFICERS. Except
as otherwise provided in Section 315 of the Trust Indenture Act, whenever in the administration of
the provisions of this Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or suffering any action hereunder, such matter (unless other
evidence in respect thereof be herein specifically prescribed) may, in the absence of negligence or
bad faith on the part of the Trustee, be deemed to be conclusively proved and established by an
Officers’ Certificate delivered to the Trustee and such certificate, in the absence of negligence
or bad faith on the part of the Trustee, shall be full warrant to the Trustee for any action taken,
suffered or omitted by it under the provisions of this Indenture upon the faith thereof.
SECTION 7.08 PERSONS ELIGIBLE FOR APPOINTMENT AS TRUSTEE. The Trustee hereunder
shall at all times be a corporation which complies with the requirements of the Trust Indenture
Act, and has (or in the case of a corporation included in a bank holding company, the bank holding
company and related entities have) a combined capital and surplus of at least $50,000,000. If such
corporation publishes reports of condition at least annually, pursuant to law or to the
requirements of the supervising or examining authority to which it is subject, then for the
purposes of this Section, the combined capital and surplus of such corporation shall be deemed to
be its combined capital and surplus as set forth in its most recent report of condition so
published. This Indenture shall always have a Trustee which shall
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be eligible to act as Trustee
under Section 310(a)(1) and Section 310(a)(2) of the Trust Indenture Act. If the Trustee has or
shall acquire any “conflicting interest” within the meaning of Section 310(b) of the Trust
Indenture Act, the Trustee and the Company shall comply with the provisions of Section 310(b) of
the Trust Indenture Act; provided, however, that there shall be excluded from the operation of
Section 310(b)(1) of the Trust Indenture Act any indenture or indentures under which other
securities or certificates of interest or participation in other securities of the Company are
outstanding if the requirements for such exclusion set forth in Section 310(b)(1) of the Trust
Indenture Act are met. If at any time the Trustee shall cease to be eligible in accordance with
the provisions of this Section 7.08, the Trustee shall resign immediately in the manner and with
the effect hereinbefore specified in this Article Seven. The provisions of Section 310 of the
Trust Indenture Act shall apply to the Company, the Guarantors and any other obligor of the Notes.
SECTION 7.09 RESIGNATION AND REMOVAL OF TRUSTEE; APPOINTMENT OF SUCCESSOR.
(a) The Trustee, or any trustee or trustees hereafter appointed, may at any time resign by
giving written notice to the Company and by giving notice of such resignation to the Holders of
Notes in the manner provided in Section 1.05. Upon receiving such notice of
resignation, the Company shall promptly appoint a successor trustee by written instrument
executed by order of the Board of Directors, one copy of which instrument shall be delivered to the
resigning trustee and one copy to the successor trustee. If no successor trustee shall have been
so appointed and have accepted appointment within 30 days after the delivery of such notice of
resignation, the resigning trustee may petition any court of competent jurisdiction for the
appointment of a successor trustee, or any Holder who has been a bona fide Holder of a Note or
Notes for at least six months may, subject to the requirements of Section 315(e) of the Trust
Indenture Act, on behalf of such Holder and all others similarly situated, petition any such court
for the appointment of a successor trustee. Such court may thereupon after such notice, if any, as
it may deem proper and prescribe, appoint a successor trustee.
(b) In case at any time either of the following shall occur:
(1) the Trustee shall cease to be eligible under Section 7.08 and shall fail to resign
after written request therefor by the Company or by any such Holder, or
(2) the Trustee shall become incapable of acting, or shall be adjudged bankrupt or
insolvent, or a receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation;
then, in either such case, the Company may remove the Trustee, and appoint a successor
trustee by written instrument, in duplicate, executed by order of the Board of Directors of
the Company, one copy of which instrument shall be delivered to the trustee so removed and
one copy to the successor trustee, or, subject to the requirements of Section 315(e) of the
Trust Indenture Act, any Holder who has been a bona fide Holder of a Note or Notes for at
least six months may, on behalf of such Holder and all others similarly situated, petition
any court of competent jurisdiction for the removal of the Trustee and the
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appointment of a
successor trustee. Such court may thereupon after such notice, if any, as it may deem proper
and prescribe, remove the Trustee and appoint a successor trustee.
(c) The Holders of at least a majority in aggregate principal amount of the Notes at the time
Outstanding may at any time remove the Trustee and appoint a successor trustee by delivering to the
trustee so removed, to the successor trustee so appointed and to the Company, the evidence provided
for in Section 8.01 of the action taken by the Holders.
(d) Any resignation or removal of the Trustee and any appointment of a successor trustee
pursuant to this Section shall become effective only upon acceptance of appointment by the
successor trustee as provided in Section 7.10.
SECTION 7.10 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR TRUSTEE. Any successor trustee
appointed under Section 7.09 shall execute, acknowledge and deliver to the Company and to its
predecessor trustee an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the predecessor trustee shall become effective and such successor
trustee, without any further act, deed or conveyance, shall become vested with all the rights,
powers, trusts, duties and obligations of its predecessor
hereunder, with like effect as if originally named as Trustee herein; but, nevertheless, on
the written request of the Company or of the successor trustee, the Trustee ceasing to act shall,
upon payment of any such amounts then due it pursuant to the provisions of Section 7.06, execute
and deliver an instrument transferring to such successor trustee all the rights, powers and trusts
of the Trustee so ceasing to act. Upon request of any such successor trustee, the Company shall
execute any and all instruments in writing for more fully and certainly vesting in and confirming
to such successor trustee all such rights and powers. Any Trustee ceasing to act shall,
nevertheless, retain a lien upon all property or funds held or collected by such Trustee to secure
any amounts then due it pursuant to Section 7.06.
No successor trustee with respect to the Notes shall accept appointment as provided in this
Section unless at the time of such acceptance such successor trustee shall with respect to the
Notes be qualified under the Trust Indenture Act and eligible under Section 7.08.
Upon acceptance of appointment by a successor trustee, the Company shall give notice of the
succession of such trustee hereunder to the Holders of Notes in the manner provided in Section
1.05. If the Company fails to give such notice within 10 days after acceptance of appointment by
the successor trustee, the successor trustee shall cause such notice to be given at the expense of
the Company.
SECTION 7.11 MERGER, CONVERSION OR CONSOLIDATION OF TRUSTEE. Any corporation into
which the Trustee may be merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all the corporate trust business of
the Trustee, shall be the successor of the Trustee hereunder without the execution or filing of any
paper or any further act on the part of any of the parties hereto, provided that such successor
trustee shall be qualified under the Trust Indenture Act and eligible under the provisions of
Section 7.08 hereof and Section 310(a) of the Trust Indenture Act.
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SECTION 7.12 AUTHENTICATING AGENTS. There may be an Authenticating Agent appointed
by the Trustee from time to time with power to act on its behalf and subject to its direction in
connection with the authentication and delivery of Notes issued upon exchange, transfer or
redemption thereof as fully to all intents and purposes as though such Authenticating Agent (the
“Authenticating Agent”) had been expressly authorized to authenticate and deliver Notes,
and Notes so authenticated shall be entitled to the benefits of this Indenture and shall be valid
and obligatory for all purposes as though authenticated by the Trustee hereunder. For all purposes
of this Indenture (except in the case of original issuance of Notes and the issuance of Notes in
replacement of lost, stolen, mutilated or destroyed Notes), the authentication and delivery of
Notes by an Authenticating Agent appointed pursuant to the provisions of this Section 7.12 shall be
deemed to be the authentication and delivery of such Notes “by the Trustee,” and whenever this
Indenture provides (except in the case of original issuance of the Notes and the issuance of Notes
in replacement of lost, stolen, mutilated or destroyed Notes) that “the Trustee shall
authenticate and deliver” Notes, such authentication and delivery by any Authenticating Agent
shall be deemed to be authentication and delivery by the Trustee. Any such Authenticating Agent
shall at all times be a corporation organized and doing business under the laws of the United
States of America or any State or the District of Columbia, with a combined capital and surplus of
at least $25,000,000 and authorized under such laws to act as an authenticating agent, duly
registered to act as such, if and to the extent required by applicable law and subject to
supervision or examination by Federal, State or District of Columbia authority. If such
corporation publishes reports of its condition at least annually, pursuant to law or the
requirements of such authority, then for the purposes of this Section 7.12 the combined capital and
surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published. If at any time an Authenticating Agent shall
cease to be eligible to act as such in accordance with the provisions of this Section 7.12, it
shall resign immediately in the manner and with the effect herein specified in this Section 7.12.
Any corporation into which any Authenticating Agent may be merged or converted or with which
it may be consolidated, or any corporation resulting from any merger, conversion or consolidation
to which any Authenticating Agent shall be a party, or any corporation succeeding to all or
substantially all of the corporate agency business of any Authenticating Agent, shall be the
successor of the Authenticating Agent hereunder, if such successor corporation is otherwise
eligible to act as such in accordance with the provisions of this Section 7.12, without the
execution or filing of any paper or any further act on the part of the Trustee or the
Authenticating Agent or such successor corporation.
Any Authenticating Agent may at any time resign by giving written notice of resignation to the
Trustee and to the Company. The Trustee may at any time terminate the agency of any Authenticating
Agent by giving written notice of termination to such Authenticating Agent and to the Company.
Upon receiving such a notice of resignation or upon a termination, or in case at any time any
Authenticating Agent shall cease to be eligible to act as such in accordance with the provisions of
this Section 7.12, the Trustee may appoint a successor authenticating agent. Upon the appointment,
at any time after the original issuance of any of the Notes, of any successor, additional or new
authenticating agent, the Trustee shall give written notice of such appointment to the Company and
shall at the expense of the Company give notice of such appointment to all Holders of Notes in the
manner provided in Section 1.05. Any
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successor authenticating agent upon acceptance of its
appointment pursuant to the provisions of this Section 7.12 shall become vested with all the
rights, powers, duties and obligations of its predecessor hereunder, with like effect as if
initially named as an Authenticating Agent herein. No successor authenticating agent shall be
appointed unless eligible to act as such in accordance with the provisions of this Section 7.12.
Any Authenticating Agent by the acceptance of its appointment shall be deemed to have
represented to the Trustee that it is eligible for appointment as Authenticating Agent under this
Section 7.12 and to have agreed with the Trustee that: it will perform and carry out the duties of
an Authenticating Agent as herein set forth, including, among other things, the duties to
authenticate and deliver Notes when presented to it in connection with exchanges, registrations of
transfer or redemptions thereof; it will keep and maintain, and furnish to the Trustee from time to
time as requested by the Trustee, appropriate records of all transactions carried out by it as
Authenticating Agent and will furnish the Trustee such other information and reports as the
Trustee may reasonably require; and it will notify the Trustee promptly if it shall cease to
be eligible to act as Authenticating Agent in accordance with the provisions of this Section 7.12.
Any Authenticating Agent by the acceptance of its appointment shall be deemed to have agreed with
the Trustee to indemnify the Trustee against any loss, liability or expense incurred by the Trustee
and to defend any claim asserted against the Trustee by reason of any acts or failures to act of
such Authenticating Agent, but such Authenticating Agent shall have no liability for any action
taken by it in accordance with the specific written direction of the Trustee.
The Trustee agrees to pay to each Authenticating Agent from time to time reasonable
compensation and expenses for its services (to the extent such compensation is not paid by the
Company), and the Trustee shall be entitled to be reimbursed for such payments subject to the
provisions of Section 7.06.
The provisions of Sections 7.03, 7.04 and 7.07 shall inure to the benefit of each
Authenticating Agent to the same extent that they inure to the benefit of the Trustee.
If an appointment is made pursuant to this Section 7.12, the Notes may have endorsed thereon,
in addition to the Trustee’s certificate of authentication, an alternate certificate of
authentication in substantially the following form:
This is one of the Notes referred to in the within-mentioned Indenture.
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The Bank of New York, |
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As Trustee |
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By: |
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As Authenticating Agent |
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By: |
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Authorized Signatory |
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SECTION 7.13 REPORTS BY TRUSTEE. On or before May 1, in every year, so long as any
Notes are outstanding hereunder, the Trustee shall transmit to the Holders a brief report, dated as
of the preceding April 1, and as otherwise required by Section 313 of the Trust Indenture Act in
accordance with the procedures set forth in said Section.
SECTION 7.14 TRUSTEE RISK. None of the provisions contained in this Indenture
shall require the Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of its rights or
powers, if there is reasonable ground for believing that the repayment of such funds or liability
is not reasonably assured to it. Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be subject to the
requirements of the Trust Indenture Act.
SECTION 7.15 NOTICE OF DEFAULT. If any Default or any Event of Default occurs and
is continuing and if such Default or Event of Default is actually known to a Responsible Officer of
the Trustee, the Trustee shall mail to each Holder, in the manner and to the extent provided in
Section 313(c) of the Trust Indenture Act, notice of such Default or Event of Default within 90
days after it occurs, unless such Default or Event of Default has been cured; provided, however,
that, except in the case of a default in the payment of the principal of, premium, if any, or
interest or Additional Amounts on any Note, the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee or a trust committee of
directors and/or Responsible Officers of the Trustee in good faith determines that the withholding
of such notice is in the interest of the Holders.
SECTION 7.16 PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE COMPANY. The Trustee
shall comply with Section 311(a) of the Trust Indenture Act, excluding any creditor relationship
listed in Section 311(b) of the Trust Indenture Act. A Trustee who has resigned or been removed
shall be subject to Section 311(a) of the Trust Indenture Act to the extent indicated therein.
SECTION 7.17 TRUSTEE’S APPLICATION FOR INSTRUCTIONS FROM THE COMPANY. Any
application by the Trustee for written instructions from the Company may, at the option of the
Trustee, set forth in writing any action proposed to be taken or omitted by the Trustee under this
Indenture and the date on and/or after which such action shall be taken or such omission shall be
effective. The Trustee shall not be liable for any action taken by, or omission of, the Trustee in
accordance with a proposal included in such application on or after the date specified in such
application (which date shall not be less than three Business Days after the date any officer of
the Company actually receives such application, unless any such officer shall have consented in
writing to any earlier date) unless prior to taking any such action (or the effective date in the
case of an omission), the Trustee shall have received written instructions in response to such
application specifying the action to be taken or omitted.
SECTION 7.18 LIMITATION OF LIABILITY. It is understood by the parties hereto other
than The Bank of New York (the “Bank”) that the sole recourse of the parties hereto other
than the Bank in respect of the obligations of the trust hereunder and under the other documents
contemplated hereby and related hereto to which it is a party shall be to the parties
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hereto other than the Bank. In addition, the Bank is entering into this Indenture and the other documents
contemplated hereby and related hereto to which it is a party solely in its capacity as Trustee
under this Indenture and not in its individual capacity (except as expressly stated herein) and in
no case shall the Bank (or any Person acting as successor trustee under this Indenture) be
personally liable for or on account of
any of the statements, representations, warranties, covenants or obligations stated to be
those of the Company or the Guarantors hereunder or thereunder, all such liability, if any, being
expressly waived by the parties hereto and any Person claiming by, through or under such party,
provided, however, that the Bank (or any such successor trustee) shall be personally liable
hereunder and thereunder for its own negligence or willful misconduct or for its material breach of
its covenants, representations and warranties contained herein or therein, to the extent expressly
covenanted or made in its individual capacity. In no event shall the Trustee, in its capacity as
Paying Agent, Note Registrar or in any other capacity hereunder, be liable under or in connection
with this Indenture for indirect, special, incidental, punitive or consequential losses or damages
of any kind whatsoever, including but not limited to lost profits, whether or not foreseeable, even
if the Trustee has been advised of the possibility thereof and regardless of the form of action in
which such damages are sought. The provisions of this Section shall survive the termination of
this Indenture and the resignation or removal of the Trustee.
ARTICLE EIGHT
CONCERNING THE HOLDERS
SECTION 8.01 EVIDENCE OF ACTION TAKEN BY HOLDERS. Whenever in this Indenture it is
provided that the Holders of a specified percentage or a majority in aggregate principal amount of
the Notes may take any action (including the making of any demand or request, the giving of any
notice, consent or waiver or the taking of any other action), such action may be taken by (i) any
instrument or any number of instruments of similar tenor executed in person or by agent or proxy
appointed in writing, (ii) vote of the Holders of Notes at a meeting duly called and held in
accordance with the provisions of Article Nine, or (iii) a combination of such instrument or
instruments and such vote, and the fact that at the time of taking any such action the Holders of
such specified percentage or majority have joined therein may be evidenced by (a) such instrument
or instruments, (b) the record of such vote, or (c) a combination of such instrument or instruments
and any such record, and except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments and/or such record are delivered to the Trustee, and
where expressly required, to the Company.
SECTION 8.02 PROOF OF EXECUTION OF INSTRUMENTS AND OF HOLDING OF NOTES. Subject to
the provisions of Sections 7.01, 7.02 and 9.05 hereof and Section 315 of the Trust Indenture Act,
proof of the execution of any instrument by a Holder or his agent or proxy and proof of the holding
by any Person of any of the Notes shall be sufficient if made in the following manner:
The fact and date of the execution by any such Person of any instrument may be proved by the
certificate of any notary public or other officer authorized to take acknowledgments of deeds to be
recorded in any State within the United States, that the Person executing such instrument
acknowledged to him the execution thereof, or by an affidavit of a
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witness to such execution sworn
to before any such notary or other such officer. Where such execution is by an officer of a
corporation or association or a member of a partnership on behalf
of such corporation, association or partnership, such certificate or affidavit shall also
constitute sufficient proof of his authority. The fact and date of the execution of any such
instrument may also be proved in any other manner which the Trustee may deem sufficient.
The ownership of Notes may be proved by the Note Registrar or by a certificate of the Note
Registrar.
If the Company shall solicit from the Holders of Notes any request, demand, authorization,
direction, notice, consent, waiver or other act, the Company may, at its option, by Board
Resolution, fix in advance a record date for the determination of Holders of Notes entitled to give
such request, demand, authorization, direction, notice, consent, waiver or other act, but the
Company shall have no obligation to do so. Any such record date shall be fixed at the Company’s
discretion in accordance with Section 316(c) of the Trust Indenture Act. If such a record date is
fixed, such request, demand, authorization, direction, notice, consent, waiver or other act may be
sought or given before or after the record date, but only the Holders of Notes of record at the
close of business on such record date shall be deemed to be the Holders of Notes for the purpose of
determining whether Holders of the requisite proportion of Notes Outstanding have authorized or
agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or
other act, and for that purpose the Notes Outstanding shall be computed as of such record date;
provided that no such authorization, agreement or consent by the Holders on such record date shall
be deemed effective unless it shall become effective pursuant to the provisions of this Indenture
not later than 180 days after the record date.
The Trustee may require such additional proof, if any, of any matter referred to in this
Section 8.02 as it shall deem necessary.
The record of any Holders’ meeting shall be proved as provided in Section 9.06.
SECTION 8.03 RIGHT OF REVOCATION OF ACTION TAKEN. At any time prior to (but not
after) the earlier of (a) the evidencing to the Trustee, as provided in Section 8.01, of the taking
of any action by the Holders of the percentage in aggregate principal amount of the Notes specified
in this Indenture in connection with such action, and (b) such earlier date as shall be established
by the Company and notice of which shall have been provided to the Holders, any Holder of a Note
the serial number of which is shown by the evidence to be included in the Notes the Holders of
which have consented to such action may, by filing written notice with the Trustee at its principal
office and upon proof of holding as provided in Section 8.02, revoke such action so far as concerns
such Note. Except as aforesaid, any such action taken by the Holder of any Note shall be conclusive
and binding upon such Holder and upon all future holders and owners of such Note, and of any Note
issued in exchange therefor or in place thereof, irrespective of whether or not any notation in
regard thereto is made upon such Note or any Note issued in exchange therefor or in place thereof.
Any action taken by the Holders of the percentage in aggregate principal amount of the Notes
specified in this Indenture in connection with such action shall be conclusively binding upon the
Company, the Trustee and the Holders of all the Notes.
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ARTICLE NINE
HOLDERS’ MEETINGS
SECTION 9.01 PURPOSES FOR WHICH HOLDERS’ MEETINGS MAY BE CALLED. A meeting of
Holders may be called at any time and from time to time pursuant to this Article Nine for any of
the following purposes:
(a) to give any notice to the Company or to the Trustee, or to give any directions to the
Trustee, or to waive or to consent to the waiving of any default hereunder and its consequences, or
to take any other action authorized to be taken by Holders pursuant to Article Six;
(b) to remove the Trustee and appoint a successor trustee pursuant to Article Seven;
(c) to consent to the execution of an indenture or indentures supplemental hereto or an
amendment or amendments of the Collateral Documents pursuant to Section 10.02; or
(d) to take any other action authorized to be taken by or on behalf of the Holders of any
specified aggregate principal amount of the Notes under any other provision of this Indenture or
under applicable law.
SECTION 9.02 CALL OF MEETINGS BY TRUSTEE. The Trustee may at any time call a
meeting of Holders to be held at such time and at such place in The City of New York as the Trustee
shall determine. Notice of every meeting of Holders, setting forth the time and the place of such
meeting and in general terms the action proposed to be taken at such meeting, shall be given by the
Trustee, in the manner provided in Section 1.05, not less than 20 nor more than 180 days prior to
the date fixed for the meeting, to the Holders of the Notes.
SECTION 9.03 COMPANY AND HOLDERS MAY CALL MEETING. In case the Company, pursuant
to a resolution of its Board of Directors, or the Holders of at least 10% in aggregate principal
amount of the Notes then Outstanding, shall have requested the Trustee to call a meeting of
Holders, by written request setting forth in general terms the action proposed to be taken at the
meeting, and the Trustee shall not have made the mailing of the notice of such meeting within 20
days after receipt of such request, then the Company or the Holders of such Notes in the amount
above specified may determine the time and the place in The City of New York for such meeting and
may call such meeting to take any action authorized in Section 9.01, by giving notice thereof as
provided in Section 9.02.
SECTION 9.04 PERSONS ENTITLED TO VOTE AT MEETING. To be entitled to vote at any
meeting of Holders a Person shall, as of the opening of business on the date of such meeting, be
(a) a Holder of one or more Notes or (b) a
Person appointed by an instrument in writing as proxy for the Holder or Holders of such Notes
by a Holder of one or more such Notes. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders shall be the Persons entitled to vote at such meeting and their
counsel and any representatives of the Trustee and its counsel and any representatives of the
Company and its counsel.
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SECTION 9.05 DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT OF MEETING.
Notwithstanding any other provisions of this Indenture, the Trustee may make such reasonable
regulations as it may deem advisable for any meeting of Holders, in regard to proof of the holding
of Notes and of the appointment of proxies, and in regard to the appointment and duties of
inspectors of votes, the submission and examination of proxies, certificates and other evidence of
the right to vote, and such other matters concerning the conduct of the meeting as it shall think
fit. Such regulations may provide that written instruments appointing proxies, regular on their
face, may be presumed valid and genuine without the proof specified in Section 8.02 or other proof.
Except as otherwise permitted or required by any such regulations, the holding of Notes shall be
proved in the manner specified in Section 8.02 and the appointment of any proxy shall be proved in
the manner specified in Section 8.02 or by having the signature of the Person executing the proxy
witnessed or guaranteed by any bank, banker, trust company or firm satisfactory to the Trustee.
The Trustee shall, by an instrument in writing, appoint a temporary chairman of the meeting,
unless the meeting shall have been called by the Company or by Holders as provided in Section 9.03,
in which case the Company or the Holders calling the meeting, as the case may be, shall in like
manner appoint a temporary chairman. A permanent chairman and a permanent secretary of the meeting
shall be elected by vote of the Holders of at least a majority in principal amount of the Notes
represented at the meeting and entitled to vote.
At any meeting each Holder of a Note or proxy shall be entitled to one vote for each $1
principal amount of Notes held or represented by such Holder; provided, however, that no vote shall
be cast or counted at any meeting in respect of any Note challenged as not Outstanding and ruled by
the chairman of the meeting to be not Outstanding. The chairman of the meeting shall have no right
to vote other than by virtue of Notes held by such chairman or instruments in writing as aforesaid
duly designating such chairman as the Person to vote on behalf of other Holders. Any meeting of
Holders duly called pursuant to Section 9.02 or 9.03 may be adjourned from time to time, and the
meeting may be held as so adjourned without further notice.
At any meeting, the presence of Persons holding or representing Notes in an aggregate
principal amount sufficient to take action upon the business for the transaction of which such
meeting was called shall be necessary to constitute a quorum; but, if less than a quorum be
present, the Persons holding or representing at least a majority of the Notes represented at the
meeting may adjourn such meeting with the same effect, for all intents and purposes, as though a
quorum had been present.
SECTION 9.06 COUNTING VOTES AND RECORDING ACTION OF MEETING. The vote upon any
resolution submitted to any meeting of Holders shall be by written ballots on which shall be
subscribed the signatures of the Holders of Notes or of their representatives by proxy and the
serial numbers and principal amounts of the Notes held or represented by them. The permanent
chairman of the meeting shall appoint two inspectors of votes who shall count all votes cast at the
meeting for or against any resolution and who shall make and file with the secretary of the meeting
their verified written reports in duplicate of all votes cast at the meeting. A record in
duplicate of the proceedings of each meeting of Holders shall be prepared by the secretary of the
meeting and there shall be attached to said record the
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original reports of the inspectors of votes
on any vote by ballot taken thereat and affidavits by one or more persons having knowledge of the
facts setting forth a copy of the notice of the meeting and showing that said notice was given as
provided in Section 9.02. The record shall show the serial numbers of the Notes voting in favor of
or against each resolution. The record shall be signed and verified by the affidavits of the
permanent chairman and secretary of the meeting and one of the duplicates shall be delivered to the
Company and the other to the Trustee to be preserved by the Trustee, the latter to have attached
thereto the ballots voted at the meeting.
Any record so signed and verified shall, absent manifest error, be conclusive evidence of the
matters therein stated.
ARTICLE TEN
SUPPLEMENTAL INDENTURES AND AMENDMENT OF
COLLATERAL DOCUMENTS
SECTION 10.01 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS. Without the
consent of any Holders, the Company, when authorized by a Board Resolution, the Guarantors and the
Trustee, at any time and from time to time, may enter into one or more indentures supplemental
hereto or one or more amendments of the Collateral Documents, in form satisfactory to the Trustee,
for any of the following purposes:
(1) to evidence the succession of another Person to the Company or the Guarantors, and the
assumption by any such successor of the covenants of the Company or the Guarantors herein and in
the Notes and the Collateral Documents; or
(2) to add to the covenants of the Company or the Guarantors for the benefit of the Holders,
or to surrender any right or power herein conferred upon the Company or the Guarantors; or
(3) to cure any ambiguity, to correct or supplement any provision herein or in the Collateral
Documents which may be inconsistent with any other provision herein, or to make any other
provisions with respect to matters or questions arising under this Indenture or the Collateral
Documents, provided such action pursuant to this clause (3) shall not adversely affect the
interests of the Holders; or
(4) to comply with any requirements of the Commission in order to effect or maintain the
qualification of this Indenture under the Trust Indenture Act; or
(5) to evidence and provide for the acceptance and appointment hereunder of a successor
Trustee with respect to the Notes; or
(6) to mortgage, pledge, hypothecate or xxxxx x Xxxx in favor of the Collateral Agent for the
benefit of Trustee and the Holders of the Notes as additional security for the payment of principal
of and interest and Additional Amounts, if any, on the Notes by the Company or on the Guarantees by
the Guarantors under this Indenture in any property or assets, including any which are required to
be mortgaged, pledged or hypothecated, or in which a Lien is required to be granted to the
Collateral Agent, pursuant to this Indenture or the Collateral Documents; or
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(7) to release, or to evidence the release of, Collateral as expressly permitted by Section
15.03 of this Indenture and by the Collateral Documents; or
(8) to add Guarantees with respect to the Notes, to secure the Notes or to release Guarantors
from Guarantees as provided by the terms of this Indenture; or
(9) to add additional Events of Default.
Upon the request of the Company accompanied by a Board Resolution authorizing the execution of
any such amended or supplemental indenture or amendment of any of the Collateral Documents, and
upon receipt by the Trustee of the documents described in Sections 7.02 and 7.07 hereof, the
Trustee shall join with the Company and the Guarantors in the execution of any amended or
supplemental indenture or amendment of any of the Collateral Documents authorized or permitted by
the terms of this Indenture and to make any further appropriate agreements and stipulations that
may be therein contained, but the Trustee shall not be obligated to enter into such amended or
supplemental indenture or amendment of any of the Collateral Documents that affects its own rights,
duties or immunities under this Indenture or otherwise.
SECTION 10.02 SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
(a) With the consent of the Holders of not less than a majority in aggregate principal amount
of the Outstanding Notes, by act of said Holders delivered to the Company and the Trustee, the
Company, when authorized by a Board Resolution, the Guarantors and the Trustee may enter into an
indenture or indentures supplemental hereto or one or more amendments or supplements to the
Collateral Documents for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or the Collateral Documents or of modifying in
any manner the rights of the Holders under this Indenture or the Collateral Documents; provided,
however, that no such supplemental indenture
or amendment or supplement to the Collateral Documents shall, without the consent of the
Holder of each Outstanding Note affected thereby,
(1) change the Stated Maturity of the principal of, or any installment of interest or
Additional Amounts on, any Note, or reduce the principal amount thereof or the rate of interest
thereon or any premium payable upon the redemption thereof, or change the place of payment where,
or the coin or currency in which, any Note or any premium or the interest or Additional Amounts
thereon is payable, impair the right to institute suit for the enforcement of any such payment on
or after the Stated Maturity thereof (or, in the case of redemption, on or after the Redemption
Date or, in the case of an Offer or an Excess Proceeds Offer which has been made, on or after the
applicable Repurchase Date or Proceeds Offer Repurchase Date), or
(2) reduce the percentage in principal amount of the Outstanding Notes, the consent of whose
Holders is required for any such supplemental indenture or amendment to the Collateral Documents,
or the consent of whose Holders is required for any waiver (of compliance with certain provisions
of this Indenture or the Collateral Documents or certain
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defaults hereunder or thereunder and their
consequences) provided for in this Indenture or the Collateral Documents, or
(3) modify any of the provisions of this Section, Section 6.09 or Section 6.14, except to
increase any such percentage or to provide that certain other provisions of this Indenture or the
Collateral Documents cannot be modified or waived without the consent of the Holder of each
Outstanding Note affected thereby, or
(4) make any change in the ranking of the Notes or the Guarantors that would adversely affect
the Holders of the Notes.
(b) Notwithstanding the foregoing, except as expressly set forth in the Collateral Documents,
without the consent of the Holders of not less than 66 2/3% in aggregate principal amount of the
Outstanding Notes, the Company and the Guarantors may not enter into an indenture or indentures
supplemental hereto or one or more amendments or supplements to the Collateral Documents to:
|
(1) |
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release (other than as expressly permitted by Section 15.03 and the Collateral
Documents), or create any additional Lien in favor of any Person other than the
Collateral Agent, the Holders or the Trustee in the Collateral, or |
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(2) |
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modify any of the provisions of Section 5.18 or of this Section 10.02(b). |
(c) It shall not be necessary for any act of Holders under this Section to approve the
particular form of any proposed supplemental indenture, but it shall be sufficient if such act
shall approve the substance thereof.
SECTION 10.03 EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any supplemental indenture
permitted by this Article or the modifications thereby of the trusts created by this Indenture, the
Trustee shall be entitled to receive, and (subject to Section 7.01) shall be fully protected in
relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be obligated to, enter
into any such supplemental indenture which affects the Trustee’s own rights, duties or immunities
under this Indenture or otherwise.
SECTION 10.04 EFFECT OF SUPPLEMENTAL INDENTURES. Upon the execution of any
supplemental indenture under this Article, this Indenture shall be modified in accordance
therewith, and such supplemental indenture shall form a part of this Indenture for all purposes,
and every Holder of Notes theretofore or thereafter authenticated and delivered hereunder shall be
bound thereby.
SECTION 10.05 CONFORMITY WITH TRUST INDENTURE ACT. Every supplemental indenture
executed pursuant to this Article shall conform to the requirements of the Trust Indenture Act as
then in effect.
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SECTION 10.06 REFERENCE IN NOTES TO SUPPLEMENTAL INDENTURES. Notes
authenticated and delivered after the execution of any supplemental indenture pursuant to this
Article may, and shall if required by the Trustee, bear a notation in form approved by the Trustee
and the Company as to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Notes so modified as to conform, in the opinion of the Trustee and the Company,
to any such supplemental indenture may be prepared and executed by the Company and authenticated
and delivered by the Trustee in exchange for Outstanding Notes.
Failure to make the appropriate notation or issue a new Note shall not affect the validity and
effect of such amendment, supplement or waiver.
ARTICLE ELEVEN
SUCCESSOR CORPORATION
SECTION 11.01 WHEN COMPANY MAY MERGE, ETC. The Company shall not consolidate with,
merge with or into, or transfer, directly or indirectly by lease, assignment, sale or otherwise,
including, without limitation, as a result of the merger or consolidation of a Restricted
Subsidiary with any other Person (collectively, a “Transfer”), all or substantially all of
its assets in one transaction or a series of related transactions to, any Person or group of
affiliated Persons or permit any of its Restricted Subsidiaries to enter into any such transaction
or transactions if such transaction or transactions in the aggregate would result in a transfer of
all or substantially all of the assets of the Company and its Restricted Subsidiaries on a
consolidated basis, unless:
(1) either the Company shall be the continuing Person, or the Person formed by such
consolidation or into which the Company is merged or to which all or substantially all of the
assets of the Company are Transferred or to which all or substantially all of the assets of the
Company and its Restricted Subsidiaries are Transferred (the “Surviving Entity”) shall be a
Person organized and existing under the laws of the United States of America, any State thereof or
the District of Columbia or the United Mexican States and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee,
all the obligations of the Company under the Notes and this Indenture and the Collateral Documents;
provided, that a corporation at all times shall be a co-obligor together with the continuing Person
or transferee if the continuing Person or transferee is itself not a corporation;
(2) immediately before and immediately after giving effect to such transaction no Default or
Event of Default exists;
(3) immediately after giving effect to such transaction, the Consolidated Net Worth of the
Company and its Restricted Subsidiaries or the Surviving Entity is equal to or greater than the
Consolidated Net Worth of the Company and its Restricted Subsidiaries immediately prior to the
transaction; and
(4) the Company has delivered to the Trustee an Officers’ Certificate (attaching the
arithmetic computations to demonstrate compliance with paragraph (3)) and an Opinion of Counsel,
each stating that such consolidation, merger, sale, assignment, transfer or lease and
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such
supplemental indenture comply with this Section 11.01 and that all conditions precedent herein
provided for relating to such transactions have been complied with.
Notwithstanding anything to the contrary in this Section 11.01, (i) this Article Eleven shall
not apply to any transfer that is a Qualifying Disposition and (ii) any Restricted Subsidiary may
merge with or into or transfer all or any portion of its assets to, the Company or any Wholly Owned
Subsidiary of the Company that is a Restricted Subsidiary hereunder, provided, that (i) such
Restricted Subsidiary shall provide a Guarantee in accordance with and to the extent required by
Section 5.23, (ii) such merger or transfer shall comply with Section 14.06, (iii) the Company and
any such Wholly Owned Subsidiary of the Company that results from or is the survivor of such
merger, or is the transferee of such assets, succeeds to, and assumes in a writing (in form and
substance satisfactory to the Trustee) the obligations of, the predecessor or transferor Restricted
Subsidiary under any and all Collateral Documents that such Restricted Subsidiary is a party or
otherwise bound by or subject to and (iv) the rights of the Trustee under any and all of the
Collateral Documents (including, but not limited to, the priority of the security interest and Lien
of the Trustee in any Collateral thereunder) shall not be adversely affected thereby.
SECTION 11.02 SUCCESSOR CORPORATION. Upon any consolidation or merger or any
Transfer of all or substantially all of the assets of the Company in accordance with Section 11.01,
except as otherwise provided herein, the successor corporation formed by such consolidation or into
which the Company is merged or to which such Transfer is made, shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under this Indenture with the same
effect as if such successor corporation had been named as the Company herein.
ARTICLE TWELVE
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
SECTION 12.01 TERMINATION OF COMPANY’S OBLIGATIONS. The Company may terminate all
of its and the Guarantors’ obligations under the Notes, this Indenture and the Collateral
Documents, except those obligations referred to below, if:
(a) all Notes previously authenticated and delivered (other than destroyed, lost or stolen
Notes which have been replaced or paid) have been delivered to the Trustee for cancellation and the
Company has paid all sums payable by it hereunder; or
(b) either (i) the Notes mature within one year or all of them are to be called for redemption
within one year under arrangements reasonably satisfactory to the Trustee for giving the notice of
redemption or (ii) if the Notes do not mature or are not to be called for redemption in accordance
with clause (i) hereof, the Company shall have delivered to the Trustee either (A) a ruling
directed to the Trustee received from the Internal Revenue Service to the effect that the
Holders of the Notes will not recognize income, gain or loss for Federal income tax purposes
as a result of the Company’s exercise of its option under this Section 12.01(b)(ii) and will be
subject to Federal income tax on the same amount and in the same manner and at the same times as
would have been the case if such option had not been exercised or (B) an Opinion of Counsel from
nationally recognized United States counsel, to the same effect as the ruling described in
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clause
(A) above with no material qualifications and an Opinion of Counsel in the United Mexican States
reasonably acceptable to the Trustee confirming that Holders of the Notes will not recognize
income, gain or loss for Mexican taxes purposes as a result of such legal defeasance and will be
subject to Mexican taxes (including withholding taxes) on the same amounts, in the same manner and
at the same times as would have been the case if such legal defeasance had not occurred, in the
case of either clause (i) or (ii); and
(1) subject to applicable stock exchange requirements, if any, the Company
irrevocably deposits with the Trustee under the terms of an irrevocable trust
agreement in form and substance satisfactory to the Trustee, as trust funds in trust
solely for the benefit of the Holders for that purpose, money or U.S. Government
Obligations, maturing as to principal and interest in such amounts and at such times
as are sufficient (in the opinion of a nationally recognized firm of independent
certified public accountants expressed in a written certification thereof delivered
to the Trustee), without consideration of any reinvestment of such interest on such
U.S. Government Obligations, to pay principal of and interest and Additional Amounts
on the Outstanding Notes to maturity or redemption, as the case may be, and to pay
all other sums payable by it hereunder, including Additional Amounts, if any,
provided that the Trustee shall have been irrevocably instructed to apply such trust
funds to the payment of principal and interest and Additional Amounts, if any, on
the Outstanding Notes;
(2) no Default or Event of Default with respect to this Indenture, the Collateral
Documents or the Notes shall have occurred and be continuing on the date of such
deposit or shall occur as a result of such deposit or shall occur on or before 91
days after the date of such deposit and such deposit will not result in a breach or
violation of, or constitute a default under, any other agreement or instrument to
which the Company is a party or by which it is bound;
(3) the Company shall have paid or caused to be paid all sums then payable by the
Company hereunder and under the Notes;
(4) such deposit shall not cause the Trustee to have a conflicting interest as
defined in and for purposes of the Trust Indenture Act;
(5) the Company has delivered to the Trustee an Opinion of Counsel from nationally
recognized United States counsel, with no material qualifications, stating that (A)
the deposit shall not result in the Company, the Trustee or the trust becoming or
being deemed to be an “investment company” under the Investment Company Act of 1940,
as amended, and (B) upon making the deposit, a valid trust is created at the time of
such deposit and the Holders of the Notes will have the sole beneficial ownership
interest under applicable
law in the money or U.S.
Government Obligations so deposited in such trust, except that the Opinion of
Counsel referred to in this clause (B) may contain a qualification that in the event
that a court of competent jurisdiction were to determine that the trust funds
remained property of the Company after such deposit, the Holders of the Notes will
have a nonavoidable first priority perfected security interest under applicable
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law
in the money or U.S. Government Obligations so deposited, which security interest
will not be subject to any prior rights of holders of any other Indebtedness; and
(6) the Company shall take any and all acts necessary to create and perfect, in
favor of the Holders of the Notes, a first priority security interest in the money
or U.S. Government Obligations so deposited and shall take any other action and
execute and deliver any other documents that may reasonably be requested by the
Trustee to effectuate such security interest, and shall do all of the above at such
appropriate time so that such security interest shall attach to the deposit at the
time such deposit is made;
and in either case of (a) or (b) the Company has delivered to the Trustee an Officers’ Certificate
and an Opinion of Counsel each stating that all conditions precedent provided for herein relating
to the satisfaction and discharge of this Indenture have been complied with.
It is the intention of the parties hereto that a valid trust for the benefit of the Holders of
the Notes be created at the time that the Company makes the deposit pursuant to Section
12.0l(b)(1). The security interest in such deposit that is granted herein to the Holders of the
Notes is intended solely as protection for the Holders of the Notes in the event that a court of
competent jurisdiction were to determine either that (i) such trust had not been validly created or
(ii) such trust is not enforceable.
Notwithstanding the foregoing clause (b), prior to the end of the 91-day period referred to in
clause (b)(2) above, none of the Company’s obligations under this Indenture shall be discharged,
and subsequent to the end of such 91-day period the Company’s obligations in Sections 3.01, 3.02,
3.03, 3.04, 3.05, 3.06, 3.07, 3.08, 3.09, 5.01, 5.02, 5.04, 5.11, 7.06, 7.09, 7.10, 12.02, 12.03
and 12.04 shall survive until the Notes are no longer Outstanding. Thereafter, only the Company’s
obligations in Sections 7.06, 12.03 and 12.04 shall survive. If and when a ruling from the Internal
Revenue Service or Opinion of Counsel referred to in clause (b)(ii) above is able to be provided
specifically without regard to, and not in reliance upon, the continuance of the Company’s
obligations under the Notes and Section 5.01, then the Company’s obligations under the Notes and
Sections 5.01 and 5.02 shall cease upon delivery to the Trustee of such ruling or opinion and
compliance with the other conditions precedent provided for herein relating to the satisfaction and
discharge of this Indenture.
After a deposit and delivery of an Officers’ Certificate and an Opinion of Counsel and
compliance with the other conditions precedent provided for herein relating to the satisfaction and
discharge of this Indenture, the Trustee upon request shall acknowledge in writing the satisfaction
and discharge of the Company’s obligations under this Indenture except for those surviving
obligations specified above.
“U.S. Government Obligations” means non-callable, direct obligations of the United
States of America for the payment of which the full faith and credit of the United States of
America is pledged.
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SECTION 12.02 APPLICATION OF TRUST MONEY. The Trustee shall hold in trust money or
U.S. Government Obligations deposited with it pursuant to Section 12.01. It shall apply the
deposited money and the money from U.S. Government Obligations through the Paying Agent and in
accordance with this Indenture to the payment of principal of and interest and Additional Amounts
on the Notes.
SECTION 12.03 REPAYMENT TO COMPANY. Subject to Section 12.02 the Trustee and the
Paying Agent shall promptly pay to the Company upon written request any excess money or Notes held
by them at any time and they shall thereupon be relieved from all liability with respect to such
money.
The Trustee and the Paying Agent shall pay to the Company upon written request any money held
by them for the payment of principal or interest or Additional Amounts that remains unclaimed for
two years; provided that the Company shall have first caused notice of such payment to be mailed to
each Holder entitled thereto no less than 30 days prior to such repayment. After payment to the
Company, Holders entitled to the money must look to the Company for payment as general creditors
unless an applicable abandoned property law designates another Person, and all liability of the
Trustee and the Paying Agent with respect to such money shall cease.
SECTION 12.04 REINSTATEMENT. If the Trustee or the Paying Agent is unable to apply
any money in accordance with Section 12.02 by reason of any legal proceeding or by reason of any
order or judgment of any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, the Company’s obligations under this Indenture and the Notes shall be
revived and reinstated as though no deposit had occurred pursuant to Section 12.01 until such time
as the Trustee or the Paying Agent is permitted to apply all such money in accordance with Section
12.02; provided that if the Company has made any payment of interest on or Additional Amounts or
principal of any Note because of the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such Notes to receive such payment from the money held
by the Trustee or the Paying Agent.
ARTICLE THIRTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND
DIRECTORS
SECTION 13.01 PERSONAL IMMUNITY FROM LIABILITY OF INCORPORATORS, STOCKHOLDERS, ETC.
No recourse under or upon any obligation, covenant or agreement of this Indenture or any indenture
supplemental hereto, or of any Note, or for any claim based thereon
or otherwise in respect thereof, shall be had against any incorporator or against any past,
present or future stockholder, officer, director, employee or agent, as such, of the Company or the
Trustee or any Paying Agent or Authenticating Agent or of any successor thereto, either directly or
through the Company or the Trustee or any Paying Agent or Authenticating Agent or any successor
thereto, whether by virtue of any constitution, statute or rule of law, or by the enforcement of
any assessment or penalty or otherwise, all such liability and any and all such claims being hereby
expressly waived and released as a condition of, and as a consideration for, the execution of this
Indenture and issue of the Notes.
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ARTICLE FOURTEEN
GUARANTEE
SECTION 14.01 GUARANTEE. By its execution hereof, the Guarantors acknowledge and
agree that they receive substantial benefits from the Company and that they are providing their
Guarantee for good and valuable consideration, including, without limitation, such substantial
benefits and services. Accordingly, subject to the provisions of this Article Fourteen, each of the
Guarantors hereby jointly and severally unconditionally guarantees on a senior secured basis to
each Holder of a Note authenticated and delivered by the Trustee and its successors and assigns
that: (i) the principal of, and premium, Additional Amounts and interest (including, without
limitation, any interest that accrued after, or would accrue but for, the commencement of a
proceeding of the type described in Section 6.01(7) or (8)) on the Notes shall be duly and
punctually paid in full when due, whether at maturity, by acceleration, call for redemption, upon
an Offer, upon an Excess Proceeds Offer or otherwise, and interest on overdue principal, and
premium, if any, Additional Amounts and (to the extent permitted by law) interest on any interest,
if any, on the Notes, Additional Amounts, if any, and all other obligations (including fees,
expenses or other) of the Company to the Holders, or the Trustee or the Collateral Agent hereunder,
under the Notes and the Collateral Documents and the Guarantors under the Notes, this Indenture,
the Collateral Documents and the Guarantees, whether now or hereafter existing, shall be promptly
paid in full or performed, all in accordance with the terms hereof and thereof; and (ii) in case of
any extension of time of payment or renewal of any Notes or any of such other obligations, the same
shall be promptly paid in full when due or performed in accordance with the terms of the extension
or renewal, whether at stated maturity, by acceleration, call for redemption, upon an Offer, upon
an Excess Proceeds Offer or otherwise, subject, however, in the case of clauses (i) and (ii) above,
to the limitations set forth in Section 14.05 (collectively, the “Guarantee Obligations”).
An Event of Default under this Indenture or the Notes shall constitute an event of default under
this Guarantee, and shall entitle the Trustee or the Holders of Notes to accelerate the obligations
of the Guarantors hereunder in the same manner and to the same extent as the Guarantee Obligations
of the Company. Each Guarantee is intended to be superior to or pari passu in right of payment
with all Indebtedness of the respective Guarantor and each Guarantor’s obligations under this
Indenture, the Notes and the Collateral Documents are independent of any obligation of the Company
or any other Guarantor under this Indenture, the Notes and the Collateral Documents. Each
Guarantor further agrees that the obligations under this Indenture, the Notes and the Collateral
Documents may be extended or renewed, in whole or in part, without notice or further assent from
such Guarantor, and that each Guarantor will remain bound
under this Article Fourteen notwithstanding any extension or renewal of any obligation under
this Indenture, the Notes and the Collateral Documents.
Subject to the provisions of this Article Fourteen, the Guarantors hereby agree that their
Guarantee hereunder shall be unconditional, irrespective of the validity, regularity or
enforceability of the Notes, this Indenture or the Collateral Documents, the absence of any action
to enforce the same, any waiver or consent by any Holder of the Notes with respect to any thereof,
the entry of any judgment against the Company, any action to enforce the same or any other
circumstance which might otherwise constitute a legal or equitable discharge or defense of the
Guarantors. The Guarantors hereby expressly waive and relinquish: (a) any right to require the
Trustee, the Holders or the Company (each, a “Benefited Party”) to proceed against the
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Company or any other Person or to proceed against or exhaust any security held by a Benefited Party
at any time or to pursue any other remedy in any secured party’s power before proceeding against
the Guarantors; (b) any defense that may arise by reason of the incapacity, lack of authority,
death or disability of any other Person or Persons or the failure of a Benefited Party to file or
enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any
other Person or Persons; (c) demand, protest and notice of any kind (except as expressly required
by this Indenture), including but not limited to notice of the existence, creation or incurring of
any new or additional Indebtedness or obligation or of any action or non-action on the part of the
Guarantors, the Company, any Benefited Party, any creditor of the Guarantors or the Company or on
the part of any other Person whomsoever in connection with any obligations the performance of which
are hereby guaranteed; (d) any defense based upon an election of remedies by a Benefited Party,
including but not limited to an election to proceed against the Guarantors for reimbursement; (e)
any defense based upon any statute or rule of law which provides that the obligation of a surety
must be neither larger in amount nor in other respects more burdensome than that of the principal;
and (f) the benefits of orden excusion y division and of prior
judgment, levy, execution and other rights provided for in Articles 2814, 2815, 2817, 2818, 2820,
2821, 2823, 2827 and 2836 of the Civil Code of the Federal District of Mexico, and the
corresponding articles of the other states of Mexico, which articles are not reproduced herein as a
result of the express acknowledgment that the contents of said Articles are known to each
Guarantor. Therefore, each Guarantor hereby irrevocably and expressly waives its rights under the
benefits of, Articles 2846 and 2847 of the Civil Code for the Federal District of Mexico. Each
Guarantor also hereby irrevocably and expressly waives any requirement of judicial demand for
payment, whether under Article 2848 or 2849 of the Civil Code for the Federal District of Mexico or
otherwise. All such Articles are not reproduced herein as a result of the express acknowledgment
of each Guarantor that the contents of said Articles are known to it. The Guarantee shall be
discharged upon the payment in full of all Guarantee Obligations, including the principal, premium,
if any, and interest and Additional Amounts, if any, on the Notes and all other costs provided for
under this Indenture or as provided in Article Fourteen, and after such termination is not
reinstated except as set forth in the second succeeding paragraph. Each Guarantor waives notice of
any default under the Notes or the obligations under this Indenture, the Notes and the Collateral
Documents. The obligations of each Guarantor hereunder shall not be affected by (i) the failure of
any Holder, Trustee or the Collateral Agent to assert any claim or demand or to enforce any right
or remedy against the Company or any other Person under this Indenture, the Notes, the Collateral
Documents or any other agreement or otherwise; (ii) any extension or renewal of any thereof; (iii)
any rescission, waiver, amendment or modification of any of the terms or provisions of this
Indenture, the Notes, the Collateral
Documents or any other agreement; (iv) the release of any security held by any Holder, the
Collateral Agent or the Trustee for the obligations under this Indenture, the Notes and the
Collateral Documents or any of them; (v) the failure of any Holder, the Trustee or the Collateral
Agent to exercise any right or remedy against any guarantor of the obligations under this
Indenture, the Notes and the Collateral Documents; or (vi) any change in the ownership of such
Guarantor.
Each Guarantor further agrees that its Guarantee herein constitutes a guarantee of payment,
performance and compliance when due (and not a guarantee of collection) and waives any right to
require that any resort be had by any Holder or the Trustee to any security held for payment of the
obligations under this Indenture, the Notes and the Collateral Documents.
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If any Holder or the Trustee is required by any court or otherwise to return to either the
Company or the Guarantors, or any trustee or similar official acting in relation to either the
Company or the Guarantors, any amount paid by the Company or the Guarantors to the Trustee or such
Holder, the Guarantee, to the extent theretofore discharged, shall be reinstated in full force and
effect. The Guarantors agree that they shall not be entitled to any right of subrogation in
relation to the Holders in respect of any Guarantee Obligations hereby until payment in full of all
such obligations guaranteed hereby. The Guarantors agree that, as between themselves, on the one
hand, and the Holders of Notes and the Trustee, on the other hand, (x) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article Six hereof for the purposes
hereof, notwithstanding any stay, injunction or other prohibition preventing such acceleration in
respect of the Guarantee Obligations, and (y) in the event of any acceleration of such obligations
as provided in Article Six hereof, such Guarantee Obligations (whether or not due and payable)
shall forthwith become due and payable by the Guarantors for the purpose of the Guarantee.
Each Guarantor agrees that it shall not be entitled to any right of subrogation, contribution,
exoneration, indemnification or reimbursement in relation to the Holders in respect of any
Guarantee Obligations until payment in full of all Guarantee Obligations. If any amount shall be
paid to such Guarantor in violation of the preceding sentence at any time prior to the later of the
payment in full of the Notes and all other amounts payable under this Indenture and under each
Guarantee upon the Stated Maturity of the Notes, such amount shall be held in trust for the benefit
of the Holders and the Trustee and shall forthwith be paid to the Trustee to be credited and
applied to the Notes and all other amounts payable under each Guarantee, whether matured or
unmatured, in accordance with the terms of this Indenture, or to be held as security for any
obligations under this Indenture, the Notes and the Collateral Documents or other amounts payable
under any Guarantee thereafter arising.
Each Guarantor further agrees that, as between it, on the one hand, and the Holders and the
Trustee, on the other hand, (x) subject to this Article Fourteen, the maturity of the Guarantee
Obligations may be accelerated as provided in Article Six for the purposes of each Guarantee,
notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect
of the Guarantee Obligations, and (y) in the event of any acceleration of such Guarantee
Obligations as provided in Article Six, such obligations (whether or not due and payable) shall,
forthwith become due and payable by the Guarantor for the purposes of each Guarantee.
A Guarantor that makes a distribution or payment under its Guarantee shall be entitled to
contribution from each other Guarantor in a pro rata amount based on the Adjusted Net Assets of
each such other Guarantor for all payments, damages and expenses incurred by that Guarantor in
discharging the Company’s obligations with respect to the Notes and this Indenture or any other
Guarantor with respect to its Guarantee, so long as the exercise of such right does not impair the
rights of the Holders of the Notes under the Guarantees.
Each Guarantor also agrees to pay any and all costs and expenses (including reasonable
attorneys’ fees) incurred by the Trustee or any Holder in enforcing any rights under this Section
14.01.
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SECTION 14.02 LIMITATION ON GUARANTOR LIABILITY. Each Guarantor, and by its
acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that
the Guarantee of such Guarantor not constitute a fraudulent transfer or conveyance for purposes of
Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any
similar federal, state or foreign law to the extent applicable to any Guarantee. To effectuate the
foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the
obligations of such Guarantor under its Guarantee and this Article Fourteen shall be limited to the
maximum amount as will, after giving effect to such maximum amount and all other contingent and
fixed liabilities of such Guarantor that are relevant under such laws, and after giving effect to
any collections from, rights to receive contribution from or payments made by or on behalf of any
other Guarantor in respect of the obligations of such other Guarantor under this Article Fourteen,
result in the obligations of such Guarantor under its Guarantee not constituting a fraudulent
transfer or conveyance. Each Guarantor that makes a payment or distribution under its Guarantee
shall be entitled to a contribution from each other Guarantor in a pro rata amount based on the
Adjusted Net Assets of each such other Guarantor.
SECTION 14.03 SUCCESSORS AND ASSIGNS. This Article Fourteen shall be binding upon
each Guarantor and its successors and assigns and shall inure to the benefit of the successors and
assigns of the Trustee and the Holders and, in the event of any transfer or assignment of rights by
any Holder or the Trustee, the rights and privileges conferred upon that party in this Indenture
and in the Notes shall automatically extend to and be vested in such transferee or assignee, all
subject to the terms and conditions of this Indenture.
SECTION 14.04 NO WAIVER. Neither a failure nor a delay on the part of either the
Trustee or the Holders in exercising any right, power or privilege under this Article Fourteen
shall operate as a waiver thereof, nor shall a single or partial exercise thereof preclude any
other or further exercise of any right, power or privilege. The rights, remedies and benefits of
the Trustee and the Holders herein expressly specified are cumulative and not exclusive of any
other rights, remedies or benefits which either may have under this Article Fourteen, at law, in
equity, by statute or otherwise.
SECTION 14.05 EXECUTION AND DELIVERY OF GUARANTEE. To evidence the Guarantee set forth in
Section 14.01 hereof, the Guarantors agree that a
notation of the Guarantee substantially in the form included in Section 2.04 shall be endorsed on
each Note authenticated and delivered by the Trustee and that this Indenture shall be executed on
behalf of the Guarantors by an officer of the Guarantors.
The Guarantor agrees that the Guarantee set forth in this Article Fourteen shall remain in
full force and effect and apply to all the Notes notwithstanding any failure to endorse on each
Note a notation of the Guarantees.
If an officer whose facsimile signature is on a Note or a notation of Guarantee no longer
holds that office at the time the Trustee authenticates the Note on which the Guarantee is
endorsed, the Guarantee shall be valid nevertheless.
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The delivery of any Note by the Trustee, after the authentication thereof hereunder, shall
constitute due delivery of the Guarantee set forth in this Indenture on behalf of the Guarantors.
In the event that any Subsidiary subsequent to the date of this Indenture, is required to
become a Guarantor by Section 5.23 hereof, the Company shall cause such Subsidiary to execute
supplemental indentures to this Indenture and Guarantees in accordance with Section 5.23 hereof and
this Article Fourteen, to the extent applicable.
SECTION 14.06 GUARANTORS MAY CONSOLIDATE, ETC., ON CERTAIN TERMS. No Guarantor may
consolidate with or merge with or into (whether or not such Guarantor is the surviving Person),
another Person whether or not affiliated with such Guarantor unless (i) subject to the provisions
of the following Section, the Person formed by or surviving any such consolidation or merger (if
other than such Guarantor) assumes all the obligations of such Guarantor under the Notes, this
Indenture and the Collateral Documents; and (ii) immediately after giving effect to such
transaction, no Default or Event of Default exists.
SECTION 14.07 RELEASES FOLLOWING SALE OF ASSETS OR CAPITAL STOCK. In the event of
a sale or other disposition of all of the assets of any Guarantor (other than to the Company,
another Guarantor or a Restricted Subsidiary), by way of merger, consolidation or otherwise, or a
sale or other disposition of all of the Capital Stock of any Guarantor (other than to, the Company,
another Guarantor or a Restricted Subsidiary), then such Guarantor (in the event of a sale or other
disposition, by way of such a merger, consolidation or otherwise, of all of the Capital Stock of
such Guarantor) or the entity acquiring the property (in the event of a sale or other disposition
of all of the assets of such Guarantor) will be released and relieved of any obligations under its
Guarantee and any such acquiring entity will not be required to assume any obligations of such
Guarantor under the applicable Guarantee; provided that such sale or other disposition complies
with all applicable provisions of this Indenture including, without limitation, Section 5.18 and
this Article Fourteen.
Any Guarantor not released from its obligations under its Guarantee shall remain liable for
the full amount of principal of and interest and Additional Amounts on the Notes and for the other
obligations of any Guarantor under this Indenture as provided in this Article Fourteen.
SECTION 14.08 APPLICATION OF CERTAIN TERMS AND PROVISIONS TO THE GUARANTORS.
(a) For purposes of any provision of this Indenture that provides for the delivery by the
Guarantors of an Officers’ Certificate and/or an Opinion of Counsel, the definitions of such terms
in Section 1.01 shall apply to the Guarantors as if references therein to the Company were
references to the Guarantors.
(b) Any request, direction, order or demand that by any provision of this Indenture is to be
made by the Guarantors, shall be sufficient if evidenced as described in Section 1.04 as if
references therein to the Company were references to the Guarantors.
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(c) Any notice or demand that by any provision of this Indenture is required or permitted to
be given or served by the Trustee or by the holders of Notes to or on the Guarantors may be given
or served as described in Section 1.04 as if references therein to the Company were references to
the Guarantors.
(d) Upon any demand, request or application by the Guarantors to the Trustee to take any
action under this Indenture, the Guarantors shall furnish to the Trustee such certificates and
opinions as are required in Section 1.02 hereof as if all references therein to the Company were
references to the Guarantors.
ARTICLE FIFTEEN
SECURITY
SECTION 15.01 COLLATERAL; COLLATERAL DOCUMENTS.
(a) To secure the due and punctual payment of principal of and interest, and Additional
Amounts on the Notes by the Company when and as the same shall be due and payable (whether on an
Interest Payment Date, at Stated Maturity, by acceleration, call for redemption, upon an Offer or
an Excess Proceeds Offer, or otherwise) and interest on the overdue principal of, and premium, if
any, Additional Amounts, if any, and (to the extent permitted by law) interest on unpaid interest,
if any, on, the Notes and performance of all other obligations of the Company and the Guarantors to
the Holders of the Notes, the Trustee or the Collateral Agent under this Indenture, the Notes, the
Guarantees and the Collateral Documents, according to the terms hereunder and thereunder, on the
Initial Issuance Date each of the Company and the Guarantors will pledge or cause to be pledged for
the benefit of the Holders of the Notes, and will grant or cause to be granted to the Collateral
Agent for the benefit of the Trustee and equal and ratable benefit of the Holders of the Notes a
first priority security interest, subject only to existing liens and restrictions specified in the
Collateral Documents, in the assets and securities of the Company and the Guarantors set forth in
the Collateral Documents (all such assets and securities, together with (i) all other assets and
securities acquired after the Initial Issuance Date, (ii) all dividends or distributions paid or
payable in respect of, or payments or
rights to receive payment in respect of the purchase, redemption or other retirement or
acquisition for value of, any securities included therein, and (iii) all cash, instruments,
securities and other property and proceeds thereof from time to time received, receivable or
otherwise distributed or distributable in respect of or in exchange for or in payment of any such
assets or securities, but excluding, in any case, such of the foregoing that may be duly released
pursuant to Section 15.03, collectively, the “Collateral”). On the Initial Issuance Date,
each of the Company and the Guarantors shall enter into the applicable Collateral Documents to
create the security interests with respect to the Collateral. The Trustee, the Guarantors and the
Company hereby acknowledge and agree that the Collateral Agent holds the Collateral in trust for
the benefit of the Holders and the Trustee, among others, pursuant to the terms of the Collateral
Documents.
(b) Each Holder, by its acceptance of a Note, consents and agrees to the terms of this Article
Fifteen and of the Collateral Documents (including, without limitation, the provisions providing
for foreclosure and release of the Collateral) as the same may be in effect or may be amended from
time to time in accordance with their terms and the terms of this Indenture, and authorizes and
directs the Trustee and the Collateral Agent to enter into the Collateral
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Documents and to perform
their respective obligations and exercise their respective rights thereunder in accordance
therewith; provided, however, that if any provisions of this Article Fifteen or of the Collateral
Documents limit, qualify or conflict with the duties imposed by the provisions of the Trust
Indenture Act, the Trust Indenture Act will control.
(c) As more fully set forth in, and subject to the provisions of the TMM Multimodal Trust
Agreement, the Holders, and the Trustee and the Collateral Agent on behalf of such Holders, will
have rights in and to the Collateral thereunder that are subject to the rights that have been
created in favor of the holders of the certificates under the Receivables Securitization Facility.
(d) As among the Holders, the Collateral shall be held for the equal and ratable benefit of
the Holders without preference, priority or distinction of any thereof over any other.
(e) The Company and the Guarantors will do or cause to be done all such acts and things as may
be necessary or reasonably requested by the Trustee, or as may be required by the provisions of
this Article Fifteen or the Collateral Documents, to assure and confirm to the Trustee the security
interests in the Collateral contemplated hereby, or by the Collateral Documents or any part
thereof, as from time to time constituted, so as to render the same available for the security and
benefit of this Indenture and of the Notes and each Guarantee, according to the intent and purposes
herein and therein expressed. The Company and the Guarantors shall take, or shall cause to be
taken, upon request of the Trustee or the Collateral Agent, any and all actions reasonably required
to cause the Collateral Documents to create and maintain, as security for the obligations of the
Company and the Guarantors under this Indenture, the Notes, the Guarantees and the Collateral
Documents, valid and enforceable first priority and perfected Liens in and on the Collateral as
provided in the Collateral Documents, subject only to existing liens and restrictions specified in
the Collateral Documents, in favor of the Collateral Agent for the benefit of the Trustee and for
the equal and ratable benefit of the Holders of the Notes.
(f) The Company and the Guarantors shall pledge any additional Collateral, and shall grant to
the Collateral Agent for the benefit of the Trustee and for the equal and ratable benefit of the
Holders of the Notes a first priority security interest in, any non-cash proceeds of any Asset
Disposition or Qualifying Disposition and any non-cash VAT Proceeds, and in furtherance thereof the
Company and the Guarantors, as applicable, the Trustee and, if applicable, the Collateral Agent
shall, promptly upon receipt of such non-cash proceeds, enter into either a new Collateral Document
or a supplement or amendment of an existing Collateral Document (whichever Collateral Document to
be determined based on the character and location of the Collateral) in order to provide for the
creation of such security interest.
(g) Any cash held from time to time as Collateral that (i) was received following the
occurrence and during the continuance of any Default or Event of Default as a dividend,
distribution or payment in respect of the purchase, redemption, or other retirement or acquisition
for value of, any securities constituting Collateral (other than any cash of the type described in
clause (ii)) or (ii) constitutes Net Cash Proceeds of an Asset Disposition or Qualifying
Disposition or VAT Cash Proceeds, in each case, until applied in accordance with Section 5.18,
shall be converted into U.S. Dollars and held in a cash collateral account for the benefit of the
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Holders of the Notes pursuant to the applicable Collateral Document under which the assets disposed
of pursuant to such Asset Disposition or Qualifying Disposition were held and shall be invested in
Cash Equivalents. The Trustee shall give notice to the applicable Collateral Agent directing such
Collateral Agent to invest such cash in Cash Equivalents; provided that cash shall not be required
to be converted into U.S. Dollars unless such cash arising from (i) or (ii) above exceeds the U.S.
Dollar equivalent of $10 million.
SECTION 15.02 VOTING RIGHTS AND PAYMENT OF DIVIDENDS AND DISTRIBUTIONS IN RESPECT OF COLLATERAL.
So long as no Default or Event of Default shall have occurred and be continuing, each of the
Company and the Guarantors shall be permitted to receive directly all dividends or distributions
paid in respect of, or payments in respect of the purchase, redemption, or other retirement or
acquisition for value of, any securities constituting Collateral, except for Net Cash Proceeds of
Asset Dispositions or Qualifying Dispositions and VAT Cash Proceeds which shall be applied in
accordance with Section 5.18. So long as no Default or Event of Default shall have occurred and be
continuing, each of the Company and the Guarantors shall have the right to vote, or to provide a
consent, waiver or ratification, as it sees fit in its sole discretion, any securities constituting
Collateral, provided that no vote may be cast, and no consent, waiver or ratification may be given
or action taken, which would be inconsistent with or violate any provision of this Indenture, the
Notes, the Guarantees or the Collateral Documents. The Trustee shall notify the applicable
Collateral Agent of a Default or an Event of Default upon obtaining knowledge thereof.
SECTION 15.03 RELEASE OF COLLATERAL.
(a) So long as no Default or Event of Default shall have occurred and be continuing, the
Company will be entitled, from time to time, to request the Trustee to give notice
to the applicable Collateral Agent directing such Collateral Agent to cause the release of all
or a portion of the Collateral from the Collateral Pledge in accordance with the following terms
hereof; provided, however, that (x) such request to the Trustee must be in writing and accompanied
by an Officers’ Certificate and an Opinion of Counsel in English (which may be Mexican counsel to
the Company) stating that such release is permitted by this Indenture and the applicable Collateral
Document and (y) the applicable conditions set forth in this Section 15.03 are met. The Company
shall, as promptly as practicable after such release pursuant to this Section 15.03 give notice
thereof to Holders of the Notes in the manner provided under Section 1.05 hereof. Upon receipt of
such Officers’ Certificate and Opinion of Counsel, the Trustee will direct the Collateral Agent to
execute, deliver and acknowledge any necessary or proper instruments of release to evidence the
release of any Collateral permitted to be released pursuant to this Indenture and the Collateral
Documents.
(i) Releases in connection with Asset Dispositions and Qualifying
Dispositions. In connection with an Asset Disposition or a Qualifying
Disposition with respect to assets or securities that constitute Collateral, the
Company may request the Trustee to direct the applicable Collateral Agent to release
from the Collateral Pledge the assets or securities to be sold in such disposition;
provided that (A) the Company shall have delivered to the Trustee, in
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form and
substance satisfactory to it and its counsel, the Officers’ Certificate and Opinion
of Counsel required by Section 15.03(a) and an Opinion of Counsel to the effect that
the Notes, the Guarantees, this Indenture and the Collateral Documents will be
secured by a first priority security interest in the Net Cash Proceeds and the
non-cash proceeds of such Asset Disposition or Qualifying Disposition, and (B)
simultaneously with such release, the Company shall cause such Net Cash Proceeds to
be paid in U.S. Dollars directly into the cash collateral account as set forth in
the applicable Collateral Document under which the assets disposed of pursuant to
such Asset Disposition or Qualifying Disposition were held and shall cause any
non-cash proceeds to be delivered to the applicable Collateral Agent under the
Collateral Documents.
(ii) Releases of Net Cash Proceeds and VAT Cash Proceeds. In
connection with any application of Net Cash Proceeds or VAT Cash Proceeds or any
Excess Proceeds Offer pursuant to Section 5.18 following an Asset Disposition or a
Qualifying Disposition, the Company may request the Trustee to direct the applicable
Collateral Agent to release from the Collateral Pledge the Net Cash Proceeds or VAT
Cash Proceeds, as the case may be; provided that the Company shall have delivered to
the Trustee, in form and substance satisfactory to it and its counsel, the Officers’
Certificate and Opinion of Counsel required by Section 15.03(a).
(iii) Releases of Cash Held in Cash Collateral Account. Upon the cure
of any Default or Event of Default as described in clause (i) of Section 15.01(g)
and provided that no other Default or Event of Default shall have occurred and be
continuing, any cash deposited in a collateral account pursuant to such clause (i)
shall be delivered to the Company and the Lien thereon shall be released. In
addition, to the extent that the Company makes an Excess Proceeds Offer
pursuant to Section 5.18 and the amount required to be paid pursuant to such
Excess Proceeds Offer is less than the amount of cash in the collateral account, and
provided no Default or Event of Default shall have occurred and be continuing, all
cash not applied pursuant to such Excess Proceeds Offer shall, immediately following
the settlement of such Excess Proceeds Offer, be delivered to the Company and the
Lien thereon shall be released. In connection with any release pursuant to this
clause (iii), the Company shall have delivered to the Trustee, in form and substance
satisfactory to it and its counsel, the Officers’ Certificate and Opinion of Counsel
required by clause (a) of this Section 15.03.
Notwithstanding the foregoing, any Net Cash Proceeds resulting from a Qualifying Disposition
shall be subject to any rights of the holders of the certificates under the Receivables
Securitization Facility as provided in Section 5.18(b), provided the Net Cash Proceeds payable to
such holders of certificates shall be the Investor Certificate Obligations (as defined in the TMM
Multimodal Trust Agreement) with respect to all certificates at the time outstanding; provided,
that for purposes hereof, the principal balance outstanding of such certificates shall not exceed
$76,300,000.
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(b) The release of any Collateral from the Collateral Pledge or the release of, in whole or in
part, the Liens created by the Collateral Documents, or the termination of the Collateral
Documents, will not be deemed to impair the Liens on the Collateral in contravention of the
provisions hereof if and to the extent that the Liens on Collateral are released, or the Collateral
Documents are terminated, pursuant to this Section 15.03 and the applicable Collateral Documents.
The Trustee and each of the Holders acknowledge that a release of Collateral or a Lien in
accordance with the terms of this Section 15.03 and the Collateral Documents will not be deemed for
any purpose to be an impairment of the Lien on the Collateral in contravention of the terms of this
Indenture. To the extent applicable, the Company, the Guarantors and each other obligor on the
Notes shall cause Section 314(d) of the Trust Indenture Act relating to the release of property or
securities from the Lien hereof and of the Collateral Documents to be complied with. Any
certificate or opinion required by Section 314(d) of the Trust Indenture Act may be made by an
officer of the Company, except in cases which Section 314(d) of the Trust Indenture Act requires
that such certificate or opinion be made by an independent Person, in which case such independent
Person shall be selected by the Company. In releasing any Collateral pursuant to the terms of this
Indenture, including the provisions of this Section 15.03, or any Collateral Document, the Trustee
shall be entitled to receive, and shall be fully protected in relying upon, in addition to the
documents required by this Section 15.03, an Officers’ Certificate certifying that such release is
authorized or permitted by this Indenture and the Collateral Documents and that all conditions
precedent, if any, to such release have been satisfied.
SECTION 15.04 REMEDIES UPON ACCELERATION. Upon the occurrence and during the continuance of an
Event of Default and after the acceleration of the principal amount of the Notes pursuant to
Section 6.03 (so long as such acceleration has not been rescinded), the Trustee shall deliver an
appropriate Notice of Sale to the applicable Collateral Agent with a copy to the Company, in
accordance with Section 6.03 hereof. Thereafter, the Trustee shall take specific action in
accordance with the directions of the Holders of not less than a majority in principal amount of
the Outstanding Notes, subject to the
terms set forth herein and in accordance with applicable law. In the event that Holders of not
less than a majority in principal amount of the Outstanding Notes fail, within 30 days of a request
for direction by the Trustee, to direct the Trustee to take specific action hereunder or under the
applicable Collateral Documents, the Trustee may retain an investment banker, broker/dealer, or
other expert as the Trustee may determine, and subject to Sections 7.01 and 7.02, the advice of
such investment banker, broker/dealer or other expert shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by the Trustee hereunder, or as
agent of the applicable Collateral Agent under the applicable Collateral Documents, in good faith
and in reliance thereon; provided that such investment banker, broker/dealer or other expert was
selected by the Trustee with due care. Upon the receipt of any Notice of Sale, the Company shall
promptly inform the Trustee whether any of the Collateral is subject to a right of first refusal or
other similar restriction.
SECTION 15.05 FURTHER ASSURANCES AND SECURITY. The Company and the Guarantors will
execute, acknowledge and deliver to the Trustee, at the Company’s and/or such Guarantors’ expense,
at any time and from time to time such further assignments, transfers, assurances or other
instruments as may be reasonably required by the Trustee, to assure and confirm to the Trustee, in
its capacity as Collateral Agent, the Liens in the Collateral contemplated hereby and by the
Collateral Documents, all to the extent contemplated hereby and by the Collateral Documents.
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SECTION 15.06 OPINIONS AS TO RECORDING.
(a) Each of the Company and the Guarantors represents that it has caused or will promptly
cause to be executed and delivered, filed and recorded and covenants that it will promptly cause to
be executed and delivered and filed and recorded, all instruments and documents, and represents
that it has done and will do or will cause to be done all such acts and other things, at the
Company’s or the Guarantors’ expense, as applicable, as are necessary to subject the applicable
Collateral to valid Liens and to perfect those Liens to the extent contemplated hereby and by the
Collateral Documents.
(b) The Company and the Guarantors shall furnish to the Trustee and the Collateral Agent
promptly after the execution and delivery of this Indenture, Opinions of Counsel of United States
and Mexican counsel either (i) stating that in the opinions of such counsel all action has been
taken with respect to the recording, registering and filing of this Indenture, financing statements
or other instruments or otherwise necessary to make effective the Liens intended to be created by
the Collateral Documents and reciting the details of such action, or (ii) stating that, in the
opinions of such counsel, no such action is necessary to make such Lien effective. Such Opinion of
Counsel may contain such qualifications, assumptions and limitations as are customary for such
opinions.
(c) The Company and the Guarantors shall furnish to the Trustee and the Collateral Agent
within three months after each anniversary of the Initial Issuance Date, Opinions of Counsel of
United States and Mexican counsel, dated as of such date, stating either that (i) in the opinions
of such counsel, all action has been taken with respect to the recording, filing, re-recording, and
refiling of this Indenture and related financing statements, continuation
statements and other instruments and documents as is necessary to maintain the effectiveness
of the Liens intended to be created by the Collateral Documents and reciting the details of such
action or (ii) in the opinions of such counsel, no such action is necessary to maintain the
effectiveness of such Liens. Such Opinions of Counsel may contain such qualifications, assumptions
and limitations as are customary for such opinions.
(d) The Company and the Guarantors shall otherwise comply with the provisions of Section
314(b) and, as applicable Sections 314(c), (d) and (e) of the Trust Indenture Act.
SECTION 15.07 LIMITATION ON DUTY OF TRUSTEE IN RESPECT OF THE COLLATERAL PLEDGE.
(a) Beyond the exercise of reasonable care in the custody thereof, the Trustee shall have no
duty as to any property in the Collateral Pledge under the Collateral Documents in its possession
or control or in the possession or control of any agent or bailee or any income thereon or as to
preservation of rights against prior parties or any other rights pertaining thereto and the Trustee
shall not be responsible for filing any financing or continuation statements or recording any
documents or instruments in any public office at any time or times or otherwise perfecting or
maintaining the perfection of any security interest in such property. The Trustee
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shall be deemed
to have exercised reasonable care in the custody of such property in its possession if the property
is accorded treatment substantially equal to that which it accords its own property, and shall not
be liable or responsible for any loss or diminution in the value of any of such property by reason
of the act or omission of any carrier, forwarding agency or other agent or bailee selected by the
Trustee with due care and in good faith.
(b) The Trustee shall not be responsible for the existence, genuineness or value of any such
property or for the validity, perfection, priority or enforceability of the Liens in any of the
property, whether impaired by operation of law or by reason of any action or omission to act on its
part hereunder, except to the extent such action or omission constitutes negligence, bad faith or
willful misconduct on the part of the Trustee, for the validity or sufficiency of such property or
any agreement or assignment contained therein, for the validity of the title of the Company or any
Guarantor to such property, for insuring such property or for the payment of taxes, charges,
assessments or Liens upon such property or otherwise as to the maintenance of such property. The
Trustee shall have no duty to inquire as to the performance or observance of any of the terms of
this Indenture or any of the Collateral Documents by the Company, any Guarantor or the applicable
Collateral Agent.
(c) Except as set forth in the Collateral Documents, the Trustee shall have no duty to
exercise any voting rights with respect to the Collateral or otherwise manage, monitor, supervise
or insure the business to which the Collateral relate.
(d) Other than as contemplated hereunder, the Trustee shall have no duty to act outside of the
United States in respect of any Collateral located in a jurisdiction other than the United States.
SECTION 15.08 AUTHORIZATION OF ACTIONS TO BE TAKEN BY COLLATERAL AGENT UNDER THE
COLLATERAL DOCUMENTS. The Trustee, in its capacity as Collateral Agent, may, in its sole discretion and without
the consent of the Holders, on behalf of the Holders, take all actions it deems necessary or
appropriate in order to (i) enforce any of the terms of the Collateral Documents and (ii) collect
and receive any and all amounts payable in respect of the obligations of the Company and the
Guarantors hereunder and under the Notes, the Guarantees and the Collateral Documents. The
Trustee, in its capacity as Collateral Agent, shall have the power to institute and to maintain
such suits and proceedings as such Person may deem expedient to prevent any impairment of the
Collateral by any acts that may be unlawful or in violation of the Collateral Documents or this
Indenture, and such suits and proceedings as the Trustee may deem expedient to preserve or protect
its interests and the interests of the Holders in the Collateral (including power to institute and
maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or
other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if
the enforcement of, or compliance with, such enactment, rule or order would impair the security
interest hereunder or be prejudicial to the interests of the Holders or of the Trustee).
SECTION 15.09 AUTHORIZATION OF RECEIPT OF FUNDS BY THE TRUSTEE UNDER THE COLLATERAL
DOCUMENTS. The Trustee, in its capacity as Collateral Agent, is authorized to receive any
funds for the benefit of the Holders distributed under the Collateral Documents, and to make
further distributions of such funds to the Holders according to the provisions of this Indenture
and the Collateral Documents.
126
SECTION 15.10 ASSIGNMENT OF RIGHTS, NOT ASSUMPTION OF DUTIES. Anything herein contained
to the contrary notwithstanding, (a) the Company and the Guarantors shall remain liable under each
of the Collateral Documents to the extent set forth therein to perform all of their duties and
obligations thereunder to the same extent as if this Indenture had not been executed, (b) the
exercise by the Trustee or the Holders of any of their rights, remedies or powers hereunder shall
not release the Company or the Guarantors from any of their duties or obligations under each of the
Collateral Documents and (c) neither the Holders nor the Trustee shall have any obligation or
liability under any of the Collateral Documents by reason of or arising out of this Indenture, nor
shall the Holders or Trustee be obligated to perform any of the obligations or duties of the
Company or the Guarantors thereunder or, except as expressly provided herein with respect to the
Trustee, to take any action to collect or enforce any claim for payment assigned hereunder or
otherwise.
SECTION 15.11 NO ELECTION OF REMEDIES. Nothing contained in this
Indenture or in any of the Collateral Documents shall require the Trustee or any Collateral Agent
to foreclose on any of the Collateral under any one of the Collateral Documents before foreclosing
on any of the Collateral under any of the other Collateral Documents, all of which shall be in the
sole discretion of the Trustee or the Collateral Agent, as applicable.
127
In
Witness Whereof, the parties hereto have caused this Indenture to be duly executed
as of the day and year first above written.
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Grupo Tmm, S.A., |
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as Issuer |
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By: |
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/s/ Xxxx Xxxxxxxxx Xxxxxxxx |
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Name: Xxxx Xxxxxxxxx Xxxxxxxx |
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Title: Attorney-in-Fact |
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Tmm Holdings, S.A. De C.V., |
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as Guarantor |
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By: |
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/s/ Xxxx Xxxxxxxxx Xxxxxxxx |
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Name: Xxxx Xxxxxxxxx Xxxxxxxx |
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Title: Attorney-in-Fact |
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Operadora De Apoyo Logístico, S.A. De C.V., |
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as Guarantor |
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By: |
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/s/ Xxxx Xxxxxxxxx Xxxxxxxx |
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Name: Xxxx Xxxxxxxxx Xxxxxxxx |
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Title: Attorney-in-Fact |
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Compañía Arrendadora Tmm, S.A. De C.V., |
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as Guarantor |
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By: |
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/s/ Xxxx Xxxxxxxxx Xxxxxxxx |
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Name: Xxxx Xxxxxxxxx Xxxxxxxx |
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Title: Attorney-in-Fact |
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Transportes Marítimos México, S.A., |
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as Guarantor |
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By: |
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/s/ Xxxx Xxxxxxxxx Xxxxxxxx |
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Name: Xxxx Xxxxxxxxx Xxxxxxxx |
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Title: Attorney-in-Fact |
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División De Negocios Especializados, S.A., De C.V. |
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as Guarantor |
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By: |
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/s/ Xxxx Xxxxxxxxx Xxxxxxxx |
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Name: Xxxx Xxxxxxxxx Xxxxxxxx |
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Title: Attorney-in-Fact |
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Inmobiliaria Tmm, S.A. De C.V., |
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as Guarantor |
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By: |
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/s/ Xxxx Xxxxxxxxx Xxxxxxxx |
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Name: Xxxx Xxxxxxxxx Xxxxxxxx |
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Title: Attorney-in-Fact |
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Lacto Comercial Organizada, S.A. De C.V., |
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as Guarantor |
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By: |
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/s/ Xxxx Xxxxxxxxx Xxxxxxxx |
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Name: Xxxx Xxxxxxxxx Xxxxxxxx |
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Title: Attorney-in-Fact |
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Línea Mexicana Tmm, S.A. De C.V., |
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as Guarantor |
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By: |
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/s/ Xxxx Xxxxxxxxx Xxxxxxxx |
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Name: Xxxx Xxxxxxxxx Xxxxxxxx |
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Title: Attorney-in-Fact |
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Naviera Del Xxxxxxxx, X.X. De C.V., |
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as Guarantor |
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By: |
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/s/ Xxxx Xxxxxxxxx Xxxxxxxx |
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Name: Xxxx Xxxxxxxxx Xxxxxxxx |
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Title: Attorney-in-Fact |
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Operadora Marítima Tmm, S.A. De C.V., |
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as Guarantor |
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By: |
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/s/ Xxxx Xxxxxxxxx Xxxxxxxx |
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Name: Xxxx Xxxxxxxxx Xxxxxxxx |
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Title: Attorney-in-Fact |
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Operadora Portuaria De Tuxpan, S.A. De C.V., |
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as Guarantor |
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By: |
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/s/ Xxxx Xxxxxxxxx Xxxxxxxx |
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Name: Xxxx Xxxxxxxxx Xxxxxxxx |
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Title: Attorney-in-Fact |
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Personal Marítimo, S.A. De C.V., |
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as Guarantor |
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By: |
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/s/ Xxxx Xxxxxxxxx Xxxxxxxx |
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Name: Xxxx Xxxxxxxxx Xxxxxxxx |
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Title: Attorney-in-Fact |
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Servicios Administrativos De |
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Transportación, S.A. De C.V., |
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as Guarantor |
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By: |
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/s/ Xxxx Xxxxxxxxx Xxxxxxxx |
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Name: Xxxx Xxxxxxxxx Xxxxxxxx |
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Title: Attorney-in-Fact |
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Servicios De Logística De México, S.A. De C.V., |
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as Guarantor |
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By: |
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/s/ Xxxx Xxxxxxxxx Xxxxxxxx |
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Name: Xxxx Xxxxxxxxx Xxxxxxxx |
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Title: Attorney-in-Fact |
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Servicios En Operaciones Logísticas, S.A. De C.V., |
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as Guarantor |
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By: |
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/s/ Xxxx Xxxxxxxxx Xxxxxxxx |
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Name: Xxxx Xxxxxxxxx Xxxxxxxx |
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Title: Attorney-in-Fact |
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Servicios En Puertos Y Terminales, S.A. De C.V., |
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as Guarantor |
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By: |
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/s/ Xxxx Xxxxxxxxx Xxxxxxxx |
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Name: Xxxx Xxxxxxxxx Xxxxxxxx |
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Title: Attorney-in-Fact |
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Terminal Marítima De Tuxpan, S.A. De C.V., |
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as Guarantor |
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By: |
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/s/ Xxxx Xxxxxxxxx Xxxxxxxx |
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Name: Xxxx Xxxxxxxxx Xxxxxxxx |
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Title: Attorney-in-Fact |
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Tmg Overseas, S.A., |
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as Guarantor |
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By: |
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/s/ Xxxx Xxxxxxxxx Xxxxxxxx |
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Name: Xxxx Xxxxxxxxx Xxxxxxxx |
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Title: Attorney-in-Fact |
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Tmm Agencias, S.A. De C.V., |
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as Guarantor |
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By: |
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/s/ Xxxx Xxxxxxxxx Xxxxxxxx |
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Name: Xxxx Xxxxxxxxx Xxxxxxxx |
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Title: Attorney-in-Fact |
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Tmm Logistics, S.A. De C.V., |
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as Guarantor |
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By: |
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/s/ Xxxx Xxxxxxxxx Xxxxxxxx |
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Name: Xxxx Xxxxxxxxx Xxxxxxxx |
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Title: Attorney-in-Fact |
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Transportación Portuaria Terrestre, S.A. De C.V., |
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as Guarantor |
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By: |
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/s/ Xxxx Xxxxxxxxx Xxxxxxxx |
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Name: Xxxx Xxxxxxxxx Xxxxxxxx |
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Title: Attorney-in-Fact |
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The Bank Of New York, |
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as Trustee |
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By: |
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/s/ Authorized Signatory |
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Name: |
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Title: |