Section 1.2.          Other Definitions.

 

TERM		DEFINED IN SECTION
“Additional Amounts”		5.4
“Defaulted Interest”		2.13
“FATCA”		11.8
“Judgment Currency”		11.15
“New York Banking Day”		11.15
“Paying Agent”		2.4
“Process Agent”		11.17
“Registrar”		2.4
“Related Proceeding”		11.17
“Required Currency”		11.15
“Transfer Agent”		2.4

ABBREVIATIONS

 

The following abbreviations, when used in the inscription of the face of this Security, shall be construed as though they were written out in full according to applicable laws or regulations:

 

 Section 2.17.          Form of Trustee’s Certificate of Authentication.  This is one of the Securities referred to in the within-mentioned Indenture.

 

Dated: ____________________

 

 

Section 2.18.        CUSIP Numbers.

 

The Company in issuing the Securities may use “CUSIP,” “ISIN” and or “Common Code” numbers (if then generally in use), and, thereafter, with respect to such series, the Trustee shall use “CUSIP,” “ISIN” and or “Common Code” numbers in notices of redemption or exchange as a convenience to Holders, with respect to such series; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of a redemption and that reliance may be placed only on the other elements of identification printed on the Securities, and any such redemption shall not be affected by any defect in or omission of such numbers.

 

Section 2.19.        Guarantees.

Any Series of Securities may be guaranteed by one or more Guarantors. The terms and the form of any such Guarantee will be established in the manner contemplated by Section 2.2 for that particular Series of Securities.

 

 ARTICLE III.

 GUARANTEES

Section 3.1.          Guarantee.

 

(a)          Other than as set forth herein or in any supplemental indenture, the Company shall have the right to designate, in its sole discretion, any Subsidiary as a Guarantor of the Securities of any Series.

 

(b)          Subject to this Section 3.1, each Guarantor of Securities of any Series hereby unconditionally guarantees to each Holder of Securities of such Series authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of the Indenture, the Securities or the obligations of the Company hereunder or thereunder, that:

 

(A)         the principal of, premium on, if any, and interest, if any, on, the Securities of such Series and all other amounts payable by the Company under the Indenture will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of, premium on, if any, and interest, if any, on, the Securities of such Series, if lawful, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder (such guaranteed obligations, the “Guaranteed Obligations”) will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and

 

(B)         in case of any extension of time of payment or renewal of any Securities of such Series or any of such other obligations, that same will 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 or otherwise.

 

Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors will be obligated to pay the same immediately. Each Guarantor agrees that its Guarantee is a guarantee of payment and not a guarantee of collection.

 

(c)          Each Guarantor hereby agrees that its obligations under its Guarantee are unconditional, irrespective of the validity, regularity or enforceability of the Securities or the Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Securities or the Trustee with respect to any provisions hereof or thereof, the recovery 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 such Guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenants that its Guarantee will not be discharged with respect to the Securities except by complete performance of the obligations contained in the Securities and the Indenture.

 

(d)          If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid either to the Trustee or such Holder, each Guarantor’s Guarantee, to the extent theretofore discharged, will be reinstated in full force and effect.

 

(e)          Each Guarantor agrees that it will not be entitled to any right of subrogation in relation to the Holders with respect to the Securities in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby with respect to the Securities. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (1) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article VII of this Indenture for the purposes of the Guarantors’ Guarantees, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (2) in the event of any declaration of acceleration of such obligations as provided in Article VII of this Indenture, such obligations (whether or not due and payable) will forthwith become due and payable by any Guarantor for the purpose of such Guarantor’s Guarantee.

 

(f)           Each of the Guarantors further expressly waives irrevocably and unconditionally:

 

(1)          Any right it may have to first require any Holder to proceed against, initiate any actions before a court of law or any other judge or authority, or enforce any other rights or security or claim payment from the Company or any other Person (including any Guarantor or any other guarantor) before claiming from it under this Indenture;

 

(2)          Any rights and benefits arising from Articles 775, 776, 777, 829, 830 and 831 (other than with respect to defenses or motions based on documented

payment (pago), reduction (quita), extension (espera) or release or remission (remisión), 1583, 1584, 1585 and 1589 (beneficios de excusión y división), 1594, 1592, 1596 and 1598 of the Argentine Civil and Commercial Code;

 

(3)          Any rights to the benefits of orden, excusión, división, quita and espera arising from Articles 2814, 2815, 2817, 2818, 2819, 2820, 2821, 2822, 2823, 2826, 2837, 2839, 2840, 2845, 2846, 2847 and any other related or applicable Articles that are not explicitly set forth herein because of the Guarantor’s knowledge thereof, of the Código Civil Federal of Mexico and the Código Civil of each State of the Mexican Republic and for the Federal District of Mexico;

 

(4)        Any rights to the benefits of ordem arising from Article 827 and any other related or applicable Articles that are not explicitly set forth herein because of the Guarantor’s knowledge thereof, of the Brazilian Civil Code (Código Civil Brasileiro);

 

(5)        Any rights to the beneficio de excusión contemplated in Section 2357 of the Chilean Civil Code (Código Civil de Chile), the beneficio de división contemplated in Section 2367 of the Chilean Civil Code; the right granted to any Guarantor incorporated under the laws of Chile under Section 2355 of the Chilean Civil Code; the right or possibility of withdraw upon the non-existence of the primary obligation, as contemplated by Section 2339 of the Chilean Civil Code and the right granted to any Guarantor incorporated under the laws of Chile by Section 1649 of the Chilean Civil Code in the case of mere extension of the term of the Securities;

(6)          Any right to which it may be entitled to have the assets of the Company or any other Person (including any Guarantor or any other guarantor) first be used, applied or depleted as payment of the Company’s or the Guarantors’ obligations hereunder, prior to any amount being claimed from or paid by any of the Guarantors hereunder; and

 

(7)          Any right to which it may be entitled to have claims hereunder divided between the Guarantors.

 

 

Section 3.2.          Limitation on Guarantor Liability.

(a)          Each Guarantor, and by its acceptance of Securities, each Holder, hereby confirms that it is the intention of all such parties that the Guarantee of any 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 or state law to the extent applicable to its Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations of the each Guarantor will be limited to the maximum amount that will, after giving effect to such maximum amount and all other contingent and fixed liabilities of such Guarantor that are relevant under such laws, result in the obligations of such Guarantor under its Guarantee not constituting a fraudulent transfer or conveyance.

 

 Section 3.3.          Execution and Delivery of Guarantee. The terms of the Guarantees set forth in Section 3.1 do not require any Guarantor to evidence its Guarantee through any notation

of such Guarantee endorsed by an Officer of such Guarantor on each Security authenticated and delivered by the Trustee.

 

The Guarantees set forth in Section 3.1 hereof will remain in full force and effect without any requirement to endorse on each Security a notation of such Guarantees.

 

The delivery of any Securities by the Trustee, after the authentication thereof, will constitute due delivery of the Guarantees on behalf of each Guarantor.

 

 

Section 3.4.          Releases.

(1)          The Guarantee of a Guarantor shall be automatically and unconditionally released and discharged and shall thereupon terminate and be of no further force and effect, and no further action by such Guarantor, the Issuers or the Trustee is required for the release of such Guarantor’s Guarantee, upon:

 

(A)         the sale, exchange, disposition or other transfer (including by way of consolidation or merger) of the Guarantor or the sale or disposition of all or substantially all the assets of the Guarantor (other than to the Company or a Subsidiary) otherwise permitted by the Indenture;

 

(B)         a Legal Defeasance or a Covenant Defeasance of the Series of Securities pursuant to Article IX of this Indenture;

 

(C)         a satisfaction and discharge of this Indenture pursuant to Section 9.5 of this Indenture;

 

(D)         the release or discharge of the Guarantee by such Guarantor of the Triggering Indebtedness or the repayment of the Triggering Indebtedness, in each case, that resulted in the obligation of such Subsidiary to become a Guarantor; provided that in no event shall the Guarantee of an Initial Guarantor terminate pursuant to this provision; or

 

(E)         such Guarantor becoming an Excluded Subsidiary or ceasing to be a Subsidiary;

 

provided, in each case, such transactions are carried out pursuant to and in accordance with all applicable covenants and provisions hereof.  At the option of the Company, the release of a Guarantor may be evidenced by the delivery of an Officer's Certificate to the Trustee.

(b)          If a Guarantor is not released from its obligations under its Guarantee as provided in this Section 3.4 such Guarantor will remain liable for the full amount of principal of, premium on, if any, and interest, if any, on, the Securities and for the other obligations of such Guarantor under this Indenture as provided in this Section 3.1.

 

ARTICLE IV.

 REDEMPTION

 

Section 4.1.          Notice to Trustee; No Liability for Calculations.

 

The Company may, with respect to any Series of Securities, reserve the right to redeem and pay such Series of Securities or may covenant to redeem and pay such Series of Securities or any part thereof prior to the Stated Maturity thereof at such time and on such terms as provided for, as applicable, in the Board Resolution and Officer’s Certificate or in the supplemental indenture relating to such Series.  If a Series of Securities is redeemable and the Company wants or is obligated to redeem prior to the Stated Maturity thereof all or part of the Series of Securities pursuant to the terms of such Securities, it shall notify the Trustee in writing of the redemption date and the principal amount of Series of Securities to be redeemed at least five days before the date that notice of redemption is to be given to the Holders of the Securities (or such shorter notice as may be acceptable to the Trustee).  The Trustee shall have no liability with respect to or obligation to calculate the redemption price of any Securities to be redeemed pursuant to this Indenture.

 

Section 4.2.          Selection of Securities to be Redeemed.

 

Unless otherwise indicated for a particular Series by a Board Resolution and Officer’s Certificate or by a supplemental indenture, if fewer than all of the Securities of a Series are to be redeemed at any time, the Trustee will select the Securities of such Series to be redeemed on a pro rata basis (or, in the case of Securities issued in global form, such Securities of such Series to be redeemed shall be selected in accordance with the procedures of the Depositary therefor) unless otherwise required by law or applicable stock exchange.  The Trustee will not be liable for selections made as contemplated in this section.

 

No Securities of a Series in principal amount of less than the minimum authorized denomination can be redeemed in part.

 

Notices of purchase or redemption will be given to each Holder pursuant to Section 4.3 and Section 11.1.

 

Section 4.3.          Notice of Redemption.

 

Unless otherwise indicated for a particular Series by Board Resolution and Officer’s Certificate or by supplemental indenture, at least 10 days but not more than 30 days before a redemption date, the Company will deliver a notice of redemption to each Holder whose Securities are to be redeemed in accordance with Section 11.1, except that redemption notices may be given more than 60 days prior to a redemption date if the notice is issued in connection with a defeasance of the Securities or a satisfaction and discharge of this Indenture pursuant to Article IX hereof.

 

The Company may make any redemption or redemption notice subject to the satisfaction of conditions precedent. If such redemption or notice is subject to the satisfaction of one or more conditions precedent, such notice shall state that, in the Company’s discretion, the redemption date may be delayed until such time (but no more than 60 days after the date of the

notice of redemption) as any or all such conditions shall be satisfied, or such redemption may not occur and such notice may be rescinded in the event that any or all such conditions shall not have been satisfied by the redemption date, or by the redemption date as so delayed. In addition, the Company may provide in such notice that payment of the redemption price and performance of our obligations with respect to such redemption may be performed by another person.

The notice shall identify the Securities to be redeemed and corresponding CUSIP, ISIN or Common Code numbers, as applicable, and will state:

(a)         the redemption date;

 

(b)         the redemption price and the amount of accrued interest, if any, and Additional Amounts, if any, to be paid;

 

(c)         if any Global Security is being redeemed in part, the portion of the principal amount of such Global Security to be redeemed and that, after the redemption date upon surrender of such Global Security, the principal amount thereof will be decreased by the portion thereof redeemed pursuant thereto;

 

(d)         if any Certificated Security is being redeemed in part, the portion of the principal amount of such Security to be redeemed, and that, after the redemption date, upon surrender of such Security, a new Certificated Security or Certificated Securities in principal amount equal to the unredeemed portion thereof will be issued in the name of the Holder thereof upon cancellation of the original Certificated Security;

 

(e)         the name and address of the Paying Agent(s) to which the Securities are to be surrendered for redemption;

 

(f)          that Securities called for redemption must be surrendered to the relevant Paying Agent to collect the redemption price, plus accrued and unpaid interest, if any, and Additional Amounts, if any;

 

(g)         that, unless the Company defaults in making such redemption payment, interest and Additional Amounts, if any, on Securities called for redemption cease to accrue on and after the redemption date;

 

(h)         that Securities of the Series called for redemption must be surrendered to the Paying Agent to collect the redemption price;

 

(i)          the paragraph of the Securities and/or Section of this Indenture pursuant to which the Securities called for redemption are being redeemed; and

 

(j)          that no representation is made as to the correctness or accuracy of the CUSIP, ISIN or Common Code numbers, if any, listed in such notice or printed on the Securities.

 

At the Company’s written request, the Trustee shall give the notice of redemption in the Company’s name and at its expense; provided, however, that the Company has delivered to

the Trustee, at least five days prior to the date that notice of redemption is to be given to the Holders of the Securities (or such shorter notice as may be acceptable to the Trustee), an Officer’s Certificate requesting that the Trustee give such notice and setting forth the information to be stated in such notice as provided in the preceding paragraph.

 

Section 4.4.          Effect of Notice of Redemption.

 

Except for any notice of redemption that is subject to the satisfaction of conditions precedent, once notice of redemption is given as provided in Section 4.3, Securities of a Series called for redemption become due and payable on the redemption date and at the redemption price.  Upon surrender to the Paying Agent, such Securities shall be paid at the redemption price plus accrued interest to the redemption date.

 

On or after any purchase or redemption date, unless the Company or any Guarantor, as applicable, defaults in payment of the purchase or redemption price, interest shall cease to accrue on Securities or portions thereof tendered for purchase or called for redemption.

 

Section 4.5.          Deposit of Redemption Price.

 

On or before 10:00 a.m., New York City time, on the redemption date, the Company shall deposit with the Trustee or with a Paying Agent money sufficient to pay the redemption price of and accrued interest, if any, on all Securities to be redeemed on that date.

 

Section 4.6.          Securities Redeemed in Part.

 

Upon surrender of a Certificated Security that is redeemed in part, upon receipt of a Company Order, the Trustee shall authenticate for the Holder a new Certificated Security of the same Series and the same Maturity equal in principal amount to the unredeemed portion of the Security surrendered.

 

 

(b)          The Company will, so long as any of the Securities are outstanding, deliver to the Trustee, promptly upon becoming aware of any Default or Event of Default, written notice specifying such Default or Event of Default and what action the Company is taking or proposes to take with respect thereto.

 

Section 5.3.          Stay, Extension and Usury Laws.

 

The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture or the Securities; and the Company (to the extent it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not, by resort to any such law, 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 has been enacted.

 

Section 5.4.           Additional Amounts. If any Securities of a Series provide for the payment of additional amounts (“Additional Amounts”) as may be necessary so that each payment of interest, premium or principal in respect of such Series of Securities shall not be less than the amount provided for in such Series of Securities after deducting or withholding an amount for or on account of any present or future taxes, duties, levies, imposts, assessments or governmental charges of whatever nature imposed with respect to that payment, the Company agrees to pay to the Holder of any such Security Additional Amounts to the extent provided in or pursuant to this Indenture or such Securities. Whenever in this Indenture there is mentioned, in any context, the payment of the principal of or interest on, or in respect of, any Security of any Series, such mention shall be deemed to include mention of the payment of Additional Amounts provided by the terms of such Series established hereby or pursuant hereto to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms, and express mention of the payment of Additional Amounts (if applicable) in any provision hereof shall not be construed as excluding Additional Amounts in those provisions hereof where such express mention is not made.

 

Section 5.5.          Reports.

 

(a)          If at any point the Company is no longer subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company will furnish or cause to be furnished to the Trustee in English (for distribution only to the Holders of Securities upon their request):

 

(1)        within 60 days after the end of the first, second and third quarters of the Company’s fiscal year (commencing with the quarter ending immediately following the Company no longer being subject to such reporting requirements), quarterly unaudited financial statements (consolidated) prepared in accordance with GAAP of the Company for such period; and

 

(2)        within 120 days after the end of the fiscal year of the Company (commencing with the first fiscal year ending immediately following the Company no longer being subject to such reporting requirements), annual audited financial statements (consolidated) prepared in accordance with GAAP of the Company for such fiscal year and a report on such annual financial statements by the Company’s auditors.

 

(b)          Notwithstanding the foregoing, if the Company makes available the reports described in this Section 5.5 on its website, it will be deemed to have satisfied the reporting requirements set forth in this Section 5.5. 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 rely exclusively on Officer’s Certificates).

 

ARTICLE VI.

 SUCCESSORS

 

Section 6.1.          Consolidation, Amalgamation, Merger and Sale of Assets.

 

(1)          either:

 

(A)         the Company is the surviving or continuing Person; or

 

(B)         the Person (if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Company and of the Company’s Subsidiaries substantially as an entirety (the “Surviving Entity”):

 

(i)        is a corporation or company organized or incorporated and validly existing under the laws of the United States of America, any State thereof or the District of Columbia; and

 

(ii)     expressly assumes, by supplemental indenture (in form and substance satisfactory to the Trustee), executed and delivered to the Trustee, the due and punctual payment of the principal of, and premium, if any, and interest on all of the Securities and the performance and observance of the covenants of the Securities and the Indenture on the part of the Company to be performed or observed;

 

(2)       immediately before and immediately after giving effect to such transaction, no Default or Event of Default has occurred or is continuing;

 

(3)      if the surviving or continuing Person is not the Company, any Guarantor, if applicable, has confirmed by supplemental indenture that its Guarantee will apply to the obligations of the Surviving Entity in respect of the Indenture and the Securities; and

 

(4)         the Company or the Surviving Entity has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that the consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if required in connection with such transaction, the supplemental indenture(s), if any, comply with the applicable provisions of the Indenture and that all conditions precedent in the Indenture relating to the transaction have been satisfied.

 

(b)       For purposes of this covenant, the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more Subsidiaries of the Company, the Capital Stock of which constitutes all or substantially all of the properties and assets of the Company (determined on a consolidated basis for the Company and its Subsidiaries), will be deemed to be the transfer of all or substantially all of the properties and assets of the Company.

 

(c)        The provisions of clause (b) above will not apply to any merger or consolidation of the Company into an Affiliate of the Company incorporated solely for the purpose of reincorporating the Company in another jurisdiction so long as the Indebtedness (as defined in the applicable supplemental indenture) of the Company and its Subsidiaries taken as a whole is not increased thereby.

 

(d)        No Guarantor may consolidate with or merge with or into any Person, or sell, convey, transfer or dispose of, all or substantially all of its assets as an entirety or substantially as an entirety, in one transaction or a series of related transactions, to any Person, or permit any Person to merge with or into the Guarantor unless:

 

(i)         the other Person is the Company or any Subsidiary that is a Guarantor or becomes a Guarantor concurrently with the transaction;

 

(ii)        (1) either (x) the Guarantor is the continuing Person or (y) the resulting, surviving or transferee Person expressly assumes by supplemental indenture all of the obligations of the Guarantor under its Guarantee; and (2) immediately after giving effect to the transaction, no Default has occurred and is continuing; or

 

(iii)       the transaction constitutes a sale or other disposition (including by way of consolidation or merger) of the Guarantor or the sale or disposition of all or substantially all the assets of the Guarantor (in each case other than to the Company or a Subsidiary) otherwise permitted by this Indenture or any supplemental indenture.

 

(e)        The foregoing clauses of this Section 5.1 shall not apply to (i) any transfer of assets by the Company to any Subsidiary, (ii) any transfer of assets among Subsidiaries, or (iii) any transfer of assets to the Company.

 

(f)        Upon any consolidation, combination or merger or any transfer of all or substantially all of the properties and assets of the Company and its Subsidiaries in accordance with this covenant, in which the Company is not the continuing Person, the Surviving Entity formed by such consolidation or into which the Company is merged or to which such conveyance, lease or transfer is made will succeed to, and be substituted for, and may exercise every right and power of, the Company under the Indenture and the Securities with the same effect as if such Surviving Entity had been named as such and the Company shall be relieved of its obligations under the Indenture and the Securities, and from time to time such entity may exercise each and every right and power of the Company under this Indenture, in the name of the Company, or in its own name; and any act or proceeding by any provision of this Indenture, in the name of the Company or in its own name; and any act or proceeding by any provision of this Indenture required or permitted to be done by the Board of Directors or any officer of the Company may be done with like force and effect by the like board of directors or officer of any entity that shall at the time be the successor of the Company hereunder. In the event of any such sale or conveyance, the Company (or any successor entity which shall theretofore have become such in the manner described in this Section 6.1) shall be discharged from all obligations and covenants under this Indenture and the Securities and may thereupon be dissolved and liquidated. For the avoidance of doubt, compliance with this covenant will not affect the obligations of the Company (including a Surviving Entity, if applicable) under any change of control payment provision set forth in any supplemental indenture, if applicable.

 

ARTICLE VII.

 DEFAULTS AND REMEDIES

 

Section 7.1.          Events of Default.

 

(a)          The following are “Events of Default” with respect to the Company’s Securities of any Series, unless in the establishing Board Resolution and Officer’s Certificate or the establishing supplemental indenture, it is provided that such Series shall not have the benefit of said Event of Default:

 

(1)        default in the payment when due of the principal of or premium, if any, on (including, in each case, any related Additional Amounts) such Series;

 

(2)       default for 30 days or more in the payment when due of interest (including any related Additional Amounts) on such Series;

 

(3)         the failure by the Company or any Subsidiary to comply with any other covenant or agreement contained in the Indenture or the Securities for 90 days or more after written notice to the Company thereof from the Trustee or the Holders of at least 25% in aggregate principal amount of the outstanding Securities of such Series;

 

(4)        default by the Company or any Significant Subsidiary under any indebtedness for borrowed money which:

 

(A)      is caused by a failure to pay principal of or premium, if any, or interest on such indebtedness for borrowed money prior to the expiration of any applicable grace period provided in such indebtedness for borrowed money on the date of such default; or

 

(B)         results in the acceleration of such indebtedness for borrowed money prior to its Stated Maturity;

 

and the principal or accreted amount of indebtedness for borrowed money covered by clause (A) or (B) at the relevant time aggregates U.S.$75 million (or the equivalent in other currencies) or more;

 

(5)         failure by the Company or any of its Significant Subsidiaries to pay one or more final judgments against any of them, aggregating U.S.$75 million (or the equivalent in other currencies) or more, which are not paid, discharged or stayed for a period of 90 days or more (to the extent not covered by a reputable and creditworthy insurance company);

 

(6)         the occurrence of a Bankruptcy Law Event of Default;

 

(7)      except as permitted herein or in the applicable supplemental indenture, any Guarantee, if applicable, is held to be unenforceable or invalid in a judicial proceeding or ceases for any reason to be in full force and effect or any

Guarantor denies or disaffirms its obligations under its Guarantee; provided that any Guarantee of a Guarantor becoming unenforceable or invalid as a result of a change in law or regulations shall not constitute an Event of Default; or

 

(8)        any other Event of Default provided in the Officer’s Certificate, supplemental indenture or Board Resolution under which such Series of Securities is issued.

 

(b)          The Company shall, upon becoming aware of any Default or Event of Default, deliver to the Trustee written notice of such Default or Event of Default, the status thereof and what action the Company is taking or proposes to take in respect thereof. In the absence of any such notice of Default or Event of Default from the Company, the Trustee shall not be deemed to have notice or be charged with knowledge of any Default or Event of Default.

 

(c)          A Default under one Series of Securities issued under this Indenture will not necessarily be a default under another Series of Securities under this Indenture.

 

Section 7.2.          Acceleration of Maturity; Rescission and Annulment.

 

(a)          If an Event of Default for a Series of Securities occurs and is continuing (other than an Event of Default referred to in Section 7.1(a)(6) with respect to the Company), the Trustee or the Holders of at least 25% in principal amount of such Series of outstanding Securities may declare the unpaid principal of and premium, if any, and accrued and unpaid interest on all the Securities of such Series to be immediately due and payable by notice in writing to the Company (if given by the Trustee or the Holders) and the Trustee (if given by the Holders) specifying the Event of Default and that it is a “notice of acceleration.” If an Event of Default specified in Section 7.1(a)(6) occurs with respect to the Company, then the unpaid principal of and premium, if any, and accrued and unpaid interest on all the Securities of such Series will become immediately due and payable without any declaration or other act on the part of the Trustee or any Holder.

 

(b)         At any time after such a declaration of acceleration with respect to any Series has been made as described in Section 7.2(a) above, the Holders of a majority in principal amount of the outstanding Securities of that Series, by written notice to the Company and the Trustee, may rescind and cancel such declaration and its consequences:

 

(1)        if the rescission would not conflict with any judgment or decree;

 

(2)        if all existing Events of Default have been cured or waived, except nonpayment of  principal or interest that has become due solely because of the acceleration;

 

(3)        to the extent the payment of such interest is lawful, interest on overdue installments of interest and overdue principal, which has become due otherwise than by such declaration of acceleration, has been paid; and if the Company has paid the Trustee its compensation and reimbursed the Trustee for its expenses, disbursements and advances outstanding at that time.

 

(c)          No rescission will affect any subsequent Default or impair any rights relating thereto.

 

(d)          The Holders of a majority in principal amount of the outstanding Securities of a Series may waive any existing Default or Event of Default under the Indenture, and its consequences, except a default in the payment of the principal of, premium, if any, or interest on any Securities of such Series.

 

(e)          Subject to the provisions of the Indenture relating to the duties of the Trustee, the Trustee is under no obligation to exercise any of its rights or powers under the Indenture at the request, order or direction of any of the Holders, unless such Holders have offered to the Trustee indemnity and/or security reasonably satisfactory to it. Subject to all provisions of the Indenture and applicable law, the Holders of a majority in aggregate principal amount of the then-outstanding Securities of a Series 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.

 

Section 7.3.          Collection of Indebtedness and Suits for Enforcement by Trustee.

 

The Company covenants that if

 

(a)        default is made in the payment of any interest on any Security when such interest becomes due and payable and such default continues for a period of 30 days, or

 

(b)          default is made in the payment of principal of any Security at the Maturity thereof, or

 

then, the Company shall, upon demand of the Trustee, pay to it, for the benefit of the Holders of such Securities, the whole amount then due and payable on such Securities for principal, premium, if any, and interest and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal and any overdue interest at the rate or rates prescribed therefor in such Securities, and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.

 

If the Company fails to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the same against the Company or any other obligor upon such Securities and collect the moneys adjudged or deemed to be payable in the manner provided by law out of the property of the Company, or any other obligor upon such Securities, wherever situated.

 

If an Event of Default with respect to any Securities of any Series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of Securities of such Series by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any 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 7.4.          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 or any other obligor upon the Securities or the property of the Company or of such other obligor or their creditors, the Trustee (irrespective of whether the principal of the Securities 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,

 

(a)          to file and prove a claim for the whole amount of principal and interest owing and unpaid in respect of the Securities and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and of the Holders allowed in such judicial proceeding, and

 

(b)          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 the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 8.7.

 

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 Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.

 

Section 7.5.          Trustee May Enforce Claims Without Possession of Securities.

 

All rights of action and claims under this Indenture or the Securities may be prosecuted and enforced by the Trustee without the possession of any of the Securities 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 the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities in respect of which such judgment has been recovered.

 

Section 7.6.          Application of Money Collected.

 

Any money collected by the Trustee pursuant to this Article VII 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 on account of principal or interest, upon presentation of the Securities 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 under Section 8.7; and

 

Second:          To the payment of the amounts then due and unpaid for principal of, premium, if any, and interest on the Securities in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities for principal and interest, respectively; and

 

Third:          Any remaining amounts shall be repaid to the Company.

 

Section 7.7.          Limitation on Suits.

 

No Holder of Securities of any Series shall have any right to institute any proceeding with respect to the Indenture or for any remedy thereunder, unless:

 

(a)         the Holder gives the Trustee written notice of a continuing Event of Default for such Series of Securities;

 

(b)          the Holders of at least 25% in principal amount of such outstanding Series of Securities make a written request to the Trustee to pursue the remedy;

 

(c)          the Holders of such Series furnish to the Trustee satisfactory indemnity;

 

(d)          the Trustee does not comply within 60 days; and

 

(e)          during that 60-day period, the Holders of a majority in principal amount of the outstanding Securities of such Series do not give the Trustee a written direction which, in the opinion of the Trustee, is inconsistent with the request;

 

provided that a Holder of a Security may institute suit for enforcement of payment of the principal of and premium, if any, or interest on such Security on or after the respective due dates expressed in such Security.

 

Section 7.8.          Unconditional Right of Holders to Receive Principal and Interest.

 

Notwithstanding any other provision in this Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment of the principal of and interest, if any, on such Security on the Stated Maturity or Stated Maturities expressed in such Security (or, in the case of redemption, on the redemption date) and to institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder.

 

Section 7.9.          Restoration of Rights and Remedies.

 

If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any

reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Company, the 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 7.10.        Rights and Remedies Cumulative.

 

Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in Section 4.8, 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, to the extent permitted by law, prevent the concurrent assertion or employment of any other appropriate right or remedy.

 

Section 7.11.        Delay or Omission Not Waiver.

 No delay or omission of the Trustee or of any Holder of any Securities 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 VII 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 7.12.        Control by Holders.

 

The Holders of a majority in principal amount of the outstanding Securities of any Series 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, with respect to the Securities of such Series, provided that:

 

(a)          such direction shall not be in conflict with any rule of law or with this Indenture;

 

(b)          the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction; and

 

(c)          the Trustee shall have the right to decline to follow any such direction if the Trustee in good faith shall, by a Responsible Officer of the Trustee, determine that the proceeding so directed would involve the Trustee in personal liability or that it will not be adequately indemnified against the costs, expenses and liabilities which might be incurred by it in complying with such direction.

 

Section 7.13.        Waiver of Past Defaults.

 

The Holders of not less than a majority in principal amount of the outstanding Securities of any Series may on behalf of the Holders of all the Securities of such Series waive any past Default hereunder with respect to such Series and its consequences, except (i) a Default in the payment of the principal of or interest on any Security of such Series (provided, however, that the Holders of a majority in principal amount of the outstanding Securities of any Series may rescind an acceleration and its consequences, including any related payment default that resulted from such acceleration), or (ii) a Default in respect of a provision contained in this Indenture that cannot be modified or amended without the consent of the Holder of each outstanding Security affected thereby.  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.

 

Section 7.14.        Undertaking for Costs.

 

All parties to this Indenture agree, and each Holder of any Security by his acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section shall not apply to any suit instituted by the Company, to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of the outstanding Securities of any Series, or to any suit instituted by any Holder for the enforcement of the payment of the principal of or interest on any Security on or after the Stated Maturity or Stated Maturities expressed in such Security (or, in the case of redemption, on the redemption date).

 

ARTICLE VIII.

 TRUSTEE

 

Section 8.1.          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 such exercise, as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs.

 

(b)          Except during the continuance of an Event of Default with respect to the Securities of any Series:

 

(1)        the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and

 

(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.  However, the Trustee shall examine such certificates and opinions to determine whether, on their face, they appear to conform to the requirements of this Indenture.

(c)         The Trustee may not be relieved from liabilities for its own negligent action, its own negligent failure to act or its own willful misconduct, except that:

 

(1)        this paragraph does not limit the effect of paragraph (b) of this Section 8.1;

 

(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; and

 

(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 7.12.

 

(d)         Whether or not therein expressly so provided, every provision of this Indenture that in any way relates to the Trustee is subject to the provisions of this Article VIII.

 

(e)        No provision of this Indenture shall require the Trustee to expend or risk its own funds or incur any liability.  The Trustee may refuse to perform any duty or exercise any right or power unless it receives indemnity reasonably satisfactory to it against any loss, liability or expense.

 

(f)         The Trustee shall not be liable for interest on or investment of any money received by it except as the Trustee may agree in writing with the Company.  Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.  All money received by the Trustee shall, until applied as herein provided, be held in trust for the payment of the principal of, premium (if any) and interest on and Additional Amounts with respect to the Securities.

 

Section 8.2.          Rights of Trustee.

 

(a)       The Trustee may conclusively rely and shall be fully protected in acting or refraining from acting, upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, note, debenture or other paper or document believed by it to be genuine and to have been signed or presented by the proper Person.  The Trustee need not investigate any fact or matter stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, security or other paper or document.

 

(b)          Before the Trustee acts or refrains from acting, it may require instruction, an Officer’s Certificate or an Opinion of Counsel or both to be provided.  The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such instruction, Officer’s Certificate or Opinion of Counsel.  The Trustee may consult with

counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.

 

(c)         The Trustee may act through agents, attorneys, custodians or nominees and shall not be responsible for the misconduct or negligence of any agent, attorney, custodian or nominee appointed with due care.

 

(d)          The Trustee shall not be liable for any action it takes or omits to take in good faith which it believes to be authorized or within its rights or powers conferred upon it by this Indenture or with respect to any action it takes or omits to take in good faith in accordance with a direction received by it from the Holders of a majority in aggregate principal amount of the relevant Series of Securities outstanding.

 

(e)         Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Company or any Guarantor, if applicable, shall be sufficient if signed by an Officer of the Company or such Guarantor.

 

(f)          Anything in this Indenture to the contrary notwithstanding, in no event shall the Trustee 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.

 

(g)        The Trustee shall be under no obligation to exercise any of the trusts or powers vested in it by this Indenture at the request, order or direction of any of the Holders of Securities pursuant to the provisions of this Indenture, unless such Holders of Securities shall have offered to the Trustee, security or indemnity reasonably satisfactory to the Trustee against the costs, expenses and liabilities which might be incurred therein or thereby.

 

(h)         The Trustee shall not be deemed to have notice of any Event of Default with respect to the Securities unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Securities and this Indenture.

 

(i)        The Trustee may at any time request, and the Company and any Guarantor, if applicable, shall each deliver an Officer’s Certificate setting forth the specimen signatures and the names of individuals and/or titles of Officers authorized at such time to take specified actions pursuant to this Indenture, which Officer’s Certificate may be signed by any Person authorized to sign an Officer’s Certificate, including any Person specified as so authorized in any such certificate previously delivered and not superseded.

 

(j)         Notwithstanding any provision herein to the contrary, in no event shall the Trustee be liable for any failure or delay in the performance of its obligations under this Indenture because of circumstances beyond its control, including, but not limited to,

pandemic, acts of God, flood, war (whether declared or undeclared), terrorism, fire, riot, strikes or work stoppages for any reason, embargo, government action, including any laws, ordinances, regulations or the like which restrict or prohibit the providing of the services contemplated by this Indenture, inability to obtain material, equipment, or communications or computer facilities, or the failure of equipment or interruption of communications or computer facilities, and other causes beyond its control whether or not of the same class or kind as specifically named above.

 

(k)       The rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, each Agent, and each other agent, custodian and other Person employed to act hereunder.

 

Section 8.3.          May Hold Securities.

 

The Trustee in its individual or any other capacity may become the owner or pledgee of Securities and may otherwise deal with the Company or any of its Affiliates with the same rights it would have if it were not Trustee.  Any Agent may do the same with like rights and duties.  However, the Trustee is subject to Sections 8.10 and 8.11.

 

Section 8.4.          Trustee’s Disclaimer.

 

The Trustee makes no representation as to the validity, sufficiency or adequacy of any offering materials, this Indenture, the Securities or any Guarantees, it shall not be accountable for the Company’s use of the proceeds from the Securities or any money paid to the Company or upon the Company’s direction under any provision hereof, and it shall not be responsible for any statement or recital herein or any statement in any offering materials or the Securities other than its certificate of authentication.

 

Section 8.5.          Notice of Defaults.

 

If a Default or Event of Default with respect to the Securities of any Series occurs and is continuing and it is actually known to the Trustee, the Trustee shall give to Holders of Securities of such Series a notice of the Default or Event of Default within 60 days after the Trustee has knowledge of such Default or Event of Default in accordance with Section 8.2(h).  Except in the case of a Default or Event of Default in payment of principal of, premium (if any) and interest on and Additional Amounts, the Trustee may withhold the notice if and so long as a Responsible Officer in good faith determines that withholding the notice is in the interests of Holders of Securities of such Series to do so.

 

Section 8.6.          Reports by Trustee to Holders.

 

Within 60 days after May 15 of each year after the execution of this Indenture, the Trustee shall give to Holders of each Series of Securities and the Company a brief report dated as of such reporting date that complies with TIA § 313(a); provided, however, that if no event described in TIA § 313(a) has occurred within the twelve months preceding the reporting date with respect to any Series of Securities, no report need be transmitted to Holders of such Series or the

Company.  The Trustee also shall comply with TIA § 313(b).  The Trustee shall also transmit by mail all reports if and as required by TIA §§ 313(c) and 313(d).

 

A copy of each report at the time of its transmittal to Holders of a Series of Securities shall be filed by the Company with the SEC and each securities exchange, if any, on which the Securities of such Series are listed.  The Company shall notify the Trustee if and when any Series of Securities is listed on or delisted from any securities exchange.

 

Section 8.7.          Compensation and Indemnity.

 

The Company and any Guarantor, if applicable, jointly and severally, agree to pay to the Trustee for its acceptance of this Indenture and services hereunder such compensation as the Company or any Guarantor and the Trustee shall from time to time agree in writing between the parties for all services rendered by it hereunder.  The Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express trust.  The Company and any Guarantor, if applicable, agree to reimburse the Trustee upon request for all reasonable disbursements, advances and expenses incurred by it.  Such expenses shall include the reasonable compensation, disbursements and expenses of the Trustee’s agents and counsel.

 

The Company and any Guarantor, if applicable, jointly and severally, hereby indemnify the Trustee from, and agree to hold it harmless for, from and against any damage, cost, claim, loss, liability or expense (including, without limitation, the reasonable fees and expenses of the Trustee’s agents and counsel) incurred by it arising out of or in connection with its acceptance and administration of the trusts set forth under this Indenture, the performance of its obligations and/or the exercise of its rights hereunder, including, without limitation, the reasonable costs and expenses of defending itself against any claim (whether asserted by the Company, any Guarantor, any Holder or any other Person), except as set forth in the next following paragraph.  The Trustee shall notify the Company promptly of any claim for which it may seek indemnity.  The Company and any Guarantor, as applicable, shall defend the claim, with counsel reasonably acceptable to the Trustee, and the Trustee shall cooperate in the defense, unless, the Trustee, in its reasonable discretion, determines that any actual or potential conflict of interest may exist, in which case the Trustee may have separate counsel, reasonably acceptable to the Company and any Guarantor, as applicable, and the Company and any Guarantor shall pay the reasonable fees and expenses of such counsel.  The Company need not pay for any settlement made without its consent.

 

The Company shall not be obligated to reimburse any expense or indemnify against any loss or liability incurred by the Trustee through the Trustee’s own negligence or bad faith.

 

To secure the payment obligations of the Company and any Guarantor, if applicable, in this Section 8.7, the Trustee shall have a lien prior to the Securities on all money or property held or collected by the Trustee, except that held in trust to pay principal of, premium (if any) and interest on and any Additional Amounts with respect to Securities of any Series.  Such lien and the obligations of the Company and any Guarantor, if any, under this Section 8.7 shall survive the satisfaction and discharge of this Indenture, the payment of the Securities and/or the resignation or removal of the Trustee.

 

When the Trustee incurs expenses or renders services in connection with an Event of Default, the expenses (including the reasonable charges and expenses of its counsel) and the compensation for the services are intended to constitute expenses of administration under any applicable Bankruptcy Law.

 

Section 8.8.          Replacement of Trustee.

 

A resignation or removal of the Trustee and appointment of a successor Trustee shall become effective only upon the successor Trustee’s acceptance of appointment as provided in this Section 8.8.

 

The Trustee may resign and be discharged at any time with respect to the Securities of one or more Series by so notifying the Company.  The Holders of a majority in principal amount of the then outstanding Securities of any Series may remove the Trustee with respect to the Securities of such Series by so notifying the Trustee and the Company.  The Company may remove the Trustee for any or all Series of the Securities if:

 

(a)          the Trustee fails to comply with Section 8.10;

 

(b)        the Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law;

 

(c)          a Custodian or public officer takes charge of the Trustee or its property; or

 

(d)          the Trustee becomes incapable of acting.

 

If the Trustee resigns or is removed or becomes incapable of acting, if a vacancy shall occur in the office of Trustee for any reason, with respect to the Securities of one or more Series, the Company, by a Company Order, shall promptly appoint a successor Trustee or Trustees with respect to the Securities of that or those Series (it being understood that any such successor Trustee may be appointed with respect to the Securities of one or more or all of such Series and that at any time there shall be only one Trustee with respect to the Securities of any particular series).  Within one year after the successor Trustee with respect to the Securities of any Series takes office, the Holders of a majority in principal amount of the Securities of such Series then outstanding may appoint a successor Trustee to replace the successor Trustee appointed by the Company.

 

If a successor Trustee with respect to the Securities of any Series does not take office within 30 days after the retiring Trustee resigns or is removed, the retiring Trustee, the Company or the Holders of at least 10% in principal amount of the then outstanding Securities of such Series may petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such Series.

 

If the Trustee with respect to the Securities of a Series fails to comply with Section 8.10, any Holder of Securities of such Series may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee with respect to the Securities of such Series.

 

In case of the appointment of a successor Trustee with respect to all Securities, each such successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Company.  Thereupon the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the retiring Trustee under this Indenture.  The successor Trustee shall give a notice of its succession to Holders in accordance with Section 11.1.  The retiring Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee, subject to the lien provided for in Section 8.7.

 

In case of the appointment hereunder of a successor Trustee with respect to the Securities of one or more Series, the Company, the retiring Trustee and each successor Trustee with respect to the Securities of one or more Series shall execute and deliver an indenture supplemental hereto in which each successor Trustee shall accept such appointment and that (1) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, confer to each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those Series to which the appointment of such successor Trustee relates, (2) if the retiring Trustee is not retiring with respect to all Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those Series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and (3) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust, and that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee.  Upon the execution and delivery of such supplemental indenture, the resignation or removal of the retiring Trustee shall become effective to the extent provided therein and each such successor Trustee without further act, deed or conveyance, shall become vested with all the rights, powers and duties of the retiring Trustee with respect to the Securities of that or those Series to which the appointment of such successor Trustee relates; but, on request of the Company, or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder with respect to the Securities of that or those Series to which the appointment of such successor Trustee relates.  Such retiring Trustee shall, however, have the right to deduct its unpaid fees and expenses, including attorneys’ fees.

 

Notwithstanding replacement of the Trustee or Trustees pursuant to this Section 8.8, the obligations of the Company or any Guarantor, if applicable, under Section 8.7 shall continue for the benefit of the retiring Trustee or Trustees.

 

Section 8.9.          Successor Trustee by Merger, etc.

 

Subject to Section 8.10, if the Trustee consolidates, amalgamates, merges or converts into, or transfers all or substantially all of its corporate trust business (including this transaction) to, another corporation, the successor corporation without any further act shall be the successor Trustee.

 

In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, amalgamation, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated; and in case at that time any of the Securities shall not have been authenticated, any successor to the Trustee may authenticate such Securities either in the name of any predecessor hereunder or in the name of the successor to the Trustee; and in all such cases such certificates shall have the full force which it is anywhere in the Securities or in this Indenture provided that the certificate of the Trustee shall have.

 

Section 8.10.        Eligibility; Disqualification.

 

There shall at all times be a Trustee hereunder which shall be a corporation or banking association organized and doing business under the laws of the United States, any State thereof or the District of Columbia and authorized under such laws to exercise corporate trust power, shall be subject to supervision or examination by Federal or State (or the District of Columbia) authority and shall have, or be a subsidiary of a bank or bank holding company having, a combined capital and surplus of at least U.S.$50 million as set forth in its most recent published annual report of condition.

 

The Indenture shall always have a Trustee who satisfies the requirements of TIA §§ 310(a)(1), 310(a)(2) and 310(a)(5).  The Trustee is subject to and shall comply with the provisions of TIA § 310(b) during the period of time required by this Indenture.  Nothing in this Indenture shall prevent the Trustee from filing with the SEC the application referred to in the penultimate paragraph of TIA § 310(b).

 

Section 8.11.        Preferential Collection of Claims Against Company

 The Trustee is subject to and shall comply with the provisions of TIA § 311(a), as if such section applied hereto, excluding any creditor relationship listed in TIA § 311(b).  A Trustee who has resigned or been removed shall be subject to TIA § 311(a), as if such section applied hereto, to the extent indicated therein.

 

ARTICLE IX.

 DISCHARGE OF INDENTURE

 

Section 9.1.          Legal Defeasance and Covenant Defeasance.

 

(b)          Upon the Company’s exercise under Section 9.1(a) of the option applicable to this Section 9.1(b), the Company shall, subject to the satisfaction of the conditions set forth in Section 9.1.2, be deemed to have paid and discharged the entire indebtedness represented by the outstanding Securities of such Series and any related Guarantees on the 91st day after the deposit specified in Section 9.1.2(a) (hereinafter, “Legal Defeasance”).  For this purpose, Legal Defeasance means that the Company shall be deemed to have paid

and discharged the entire indebtedness represented by the outstanding Securities of such Series, which shall thereafter be deemed to be outstanding only for the purposes of the sections of this Indenture referred to in clause (1) or (2) of this Section 9.1(b), and the Company shall have been deemed to have satisfied all their other obligations under such Series, and hereunder (and the Trustee, on demand of and at the expense of the Company, shall execute proper instruments acknowledging the same), except for the following provisions, which shall survive until otherwise terminated or discharged hereunder:

 

(1)        the rights of Holders to receive solely from the trust described in Section 9.1.2(a) below, as more fully set forth in such section, payments in respect of the principal of, premium, if any, and interest on the Securities when such payments are due;

 

(2)     the Company’s obligations with respect to such Securities concerning issuing temporary Securities, registration of Securities, mutilated, destroyed, lost or stolen Securities and the maintenance of an office or agency for payments;

 

(3)        the rights, powers, trusts, duties and immunities of the Trustee as described in Article VIII and hereunder and the Company’s obligations in connection therewith; and

 

(4)         this Article IX.

 

Subject to compliance with this Article IX, the Company may exercise its option under this Section 9.1(b) notwithstanding the prior exercise of its option under Section 9.1(c).

 

(c)        Upon the Company’s exercise under Section 9.1(a) of the option applicable to this Section 9.1(c), the Company and its Subsidiaries shall be, subject to the satisfaction of the applicable conditions set forth in Section 9.1.2, released and discharged from their obligations under the covenants (including, without limitation, the obligations contained in Sections 5.2, 5.4, and 5.5, and Article VI as well as those covenants included in any applicable supplemental indenture, with respect to the outstanding Securities and the operation of Sections 7.1(a)(4), (5), (6) and (7), but only as it applies to any Subsidiary, shall terminate on and after the date the conditions set forth below are satisfied (hereinafter, “Covenant Defeasance”), and the Securities of such Series shall thereafter be deemed not outstanding for the purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be outstanding for all other purposes hereunder (it being understood that such Securities shall not be deemed outstanding for accounting purposes).  For this purpose, such Covenant Defeasance means that, with respect to the outstanding Securities of a Series, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere in the Indenture to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document and such omission to comply shall not constitute a Default or an Event or Default with

respect to the Securities or any Guarantees under Section 7.1, but, except as specified above, the remainder hereof and such Securities of such Series shall be unaffected thereby.

 

9.1.2.      Conditions to Defeasance.  The Company may exercise its Legal Defeasance option or its Covenant Defeasance option only if:

 

(a)          the Company has irrevocably deposited with the Trustee, in trust, for the benefit of the Holders cash in U.S. Dollars, certain direct non-callable obligations of, or guaranteed by, the United States, or a combination thereof, in such amounts as shall be sufficient without reinvestment, in the case of obligations of the United States, in the opinion of a nationally recognized firm of independent public accountants or investment bank, to pay the principal of, premium, if any, and interest (including Additional Amounts) on a Series of Securities on the stated date for payment thereof or on the applicable redemption date, as the case may be;

 

(b)          in the case of Legal Defeasance, the Company has delivered to the Trustee an Opinion of Counsel from a nationally recognized law firm in the U.S. reasonably acceptable to the Trustee and independent of the Company to the effect that:

 

(1)        the Company has received from, or there has been published by, the Internal Revenue Service a ruling; or

 

(2)        since the applicable Issue Date, there has been a change in the applicable U.S. federal income tax law;

 

in either case to the effect that, and based thereon such Opinion of Counsel shall state that, the beneficial owners of the Securities of such Series will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Legal Defeasance and will be subject to U.S. federal income tax 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;

 

(c)          in the case of Covenant Defeasance, the Company has delivered to the Trustee an Opinion of Counsel from a nationally recognized law firm in the U.S. reasonably acceptable to the Trustee and independent of the Company to the effect that the beneficial owners of the Securities of such Series will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Covenant Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;

 

(d)          no Default or Event of Default has occurred and is continuing on the date of the deposit pursuant to Section 9.1.2(a);

 

(e)          the Company has delivered to the Trustee an Officer’s Certificate stating that such Legal Defeasance or Covenant Defeasance will not result in a breach or violation of, or constitute a default under this Indenture or any other material agreement or instrument to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound;

 

(f)          the Company has delivered to the Trustee an Officer’s Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders over any other creditors of the Company or any Subsidiary of the Company or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company or others;

 

(g)          the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel from U.S. counsel reasonably acceptable to the Trustee and independent of the Company, each stating that all conditions precedent provided for or relating to the Legal Defeasance or the Covenant Defeasance have been complied with; and

 

(h)          the Company has delivered to the Trustee an Opinion of Counsel from U.S. counsel reasonably acceptable to the Trustee and independent of the Company to the effect that the trust funds will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally.

 

Section 9.2.          Application of Trust Money.

 

The Trustee or a trustee satisfactory to the Trustee and the Company shall hold in trust money or Government Obligations deposited with it pursuant to Section 9.1 hereof.  It shall apply the deposited money and the money from Government Obligations through the Paying Agent and in accordance with this Indenture to the payment of principal of premium (if any) and interest on and any Additional Amounts with respect to the Securities of the Series with respect to which the deposit was made.

 

Section 9.3.          Repayment to Company.

 

The Trustee and the Paying Agent shall promptly pay to the Company (or to its designee) upon written request any excess money or Government Obligations (or proceeds therefrom) held by them at any time upon the written request of the Company.

 

Subject to the requirements of any applicable abandoned property laws, the Trustee and the Paying Agent shall pay to the Company upon written request any money held by them for the payment of principal, premium (if any), interest or any Additional Amounts that remains unclaimed for two years after the date upon which such payment shall have become due.  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 9.4.          Reinstatement.

 

If the Trustee or the Paying Agent is unable to apply any money or Government Obligations deposited with respect to Securities of any Series in accordance with Section 9.1 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 obligations of the Company under this Indenture with respect to the Securities of such Series and under the Securities of such Series shall be revived and reinstated as though no deposit had occurred pursuant to Section

9.1 until such time as the Trustee or the Paying Agent is permitted to apply all such money or Government Obligations in accordance with Section 9.1; provided, however, that if the Company has made any payment of principal of, premium (if any) or interest on or any Additional Amounts with respect to any Securities because of the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Securities to receive such payment from the money or Government Obligations held by the Trustee or the Paying Agent.

 

              Section 9.5.          Satisfaction and Discharge. This Indenture shall be discharged and shall cease to be of further effect (except as to surviving rights or registration of transfer or exchange of any Securities, as expressly provided for herein) as to all outstanding Securities, and the Trustee, on written demand of and at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture, when:

 

(a)          either:

 

(1)     all the Securities theretofore authenticated and delivered (except lost, stolen or destroyed Securities which have been replaced or paid and Securities for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust) have been delivered to the Trustee for cancellation; or

 

(2)      all Securities not theretofore delivered to the Trustee for cancellation have become due and payable at the Stated Maturity or will become due and payable within one year, including by reason of the giving of a notice of redemption, and the Company has irrevocably deposited or caused to be deposited with the Trustee funds or Government Obligations sufficient without reinvestment to pay and discharge the entire Indebtedness (as defined in the applicable supplemental indenture) on the Securities not theretofore delivered to the Trustee for cancellation, for principal of, premium, if any, and accrued and unpaid interest on the Securities to the date of deposit (in the case of Securities that have become due and payable) or to the Stated Maturity or the redemption date, as the case may be, together with irrevocable instructions from the Company directing the Trustee to apply such funds to the payment;

 

(b)          the Company has paid all other sums payable under this Indenture and the Securities by the Company; and

 

(c)          the Company has delivered to the Trustee an Officer’s Certificate stating that all conditions precedent under this Indenture relating to the satisfaction and discharge of this Indenture have been complied with.

 

ARTICLE X.

 AMENDMENTS AND WAIVERS

 

Section 10.1.        Without Consent of Holders.

 

Without the consent of any Holder of Securities of a Series, the Company, any Guarantor of the Securities of a Series, if applicable, and the Trustee may amend, modify or

supplement this Indenture or any supplemental indenture, such Series of Securities or any Guarantee of such Series of Securities in the following circumstances:

 

(1)        to cure any ambiguity, omission, defect or inconsistency contained therein;

 

(2)       to provide for the assumption by a Surviving Entity of the obligations of the Company or any Guarantor under the Indenture or applicable supplemental indenture;

 

(3)       to add Guarantees with respect to a Series of Securities or release a Guarantee in accordance with the terms of the Indenture or applicable supplemental indenture;

 

(4)        to secure the Securities;

 

(5)        to add to the covenants of the Company for the benefit of the Holders or surrender any right or power conferred upon the Company;

 

(6)       to issue additional Securities of any Series in accordance with the Indenture; provided that if such additional Securities are not issued pursuant to a “qualified reopening” of the relevant original Series of Securities, are otherwise not treated as part of the same “issue” of debt instruments as the original Series of Securities or are issued with more than a de minimis amount of original issue discount, in each case for U.S. federal income tax purposes, then a separate CUSIP or ISIN shall be issued for such additional Securities;

 

(7)        to evidence the replacement of the Trustee as provided for under the Indenture;

 

(8)        if necessary, in connection with any release of any security permitted under the Indenture;

 

(9)        to make any other change that does not adversely affect the rights of any Holder in any material respect;

 

(10)      to provide for uncertificated Securities in addition to or in place of Certificated Securities;

 

(11)      to conform the text of the Indenture, any supplemental indenture, the Guarantees or any Series of Securities to any provision of the prospectus or supplemental prospectus of any Series of Securities; and

 

With respect to any additional Guarantees to be added pursuant to Section 10.1(3), the Trustee is further authorized, without any further consents, to execute and deliver any additional documents that the Company identifies as necessary to effect such addition.

Section 10.2.        With Consent of Holders.

 

Other modifications to, amendments of, supplements to, waivers to any Existing Default or Event of Default and its consequences (other than regarding a Default or Event of Default in the payment of the principal of, premium on, if any, interest or Additional Amounts, if any, on, such Securities of a Series, except a payment Default resulting from an acceleration that has been rescinded) or compliance with any provision of, the Indenture or Securities of a Series or any applicable Guarantee of a Series of Securities may be made with the consent of the Holders of a majority in principal amount of the then-outstanding Securities of such Series issued under the Indenture, except that, without the consent of each Holder of such Securities of such Series affected thereby, no amendment may (with respect to any Securities of such Series held by a non-consenting Holder):

 

(1)         reduce the percentage of the principal amount of the outstanding Securities of such Series whose Holders must consent to an amendment, supplement or waiver;

 

(2)        reduce the rate of or change or have the effect of changing the time for payment of interest on any Securities of such Series;

 

(3)        change any place of payment where the principal of or interest on the Securities of such Series is payable;

 

(4)         reduce the principal of or change or have the effect of changing the fixed maturity of any Securities of such Series, or change the date on which any Securities of such Series may be subject to redemption, or reduce the redemption price therefor;

 

(5)         make any Securities if such Series payable in currencies other than that stated in the Securities of such Series;

 

(6)        make any change in provisions of the Indenture entitling each Holder of Securities of such Series to receive payment of principal of, premium, if any, and interest on such Securities of such Series on or after the due date thereof or to bring suit to enforce such payment, or permitting Holders of a majority in principal amount of outstanding Securities of such Series to waive Defaults or Events of Default;

 

(7)          to the extent applicable, eliminate or modify in any manner any Guarantor’s obligations with respect to the Guarantees of such Series of Securities which adversely affects Holders of Securities of such Series in any material respect, except as contemplated in the Indenture or in the applicable supplemental indenture; and

 

(8)          make any change in the provisions of the Indenture described under Section 5.4 that adversely affects the rights of any Holder of Securities of such Series or amend the terms of the Securities of such Series in a way that would result in a loss of exemption from any applicable taxes.

 

For the avoidance of doubt, any amendment, supplement or waiver to any Series of Securities made with the consent of Holders of such Series of Securities, shall be made with respect to that Series of Securities only, and not any other Series of Securities.

In the event that consent is obtained from some of the Holders but not from all of the Holders with respect to any amendments or waivers pursuant to clauses (1) through (8) of this Section 10.2, new Securities of such Series with such amendments or waivers will be issued to those consenting Holders.  Such new Securities shall have separate CUSIP numbers and ISINs from those Securities of such Series held by non-consenting Holders.

 

Section 10.3.        Form of Amendments.

 

Every amendment to this Indenture or the Securities of one or more Series shall be set forth in a supplemental indenture and each supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.

 

Section 10.4.        Revocation and Effect of Consents.

 

Until an amendment is set forth in a supplemental indenture or a waiver becomes effective, a consent to it by a Holder of a Security is a continuing consent by the Holder and every subsequent Holder of a Security or portion of a Security that evidences the same debt as the consenting Holder’s Security, even if notation of the consent is not made on any Security.  However, any such Holder or subsequent Holder may revoke the consent as to his Security or portion of a Security if the Trustee receives the written notice of revocation before the date of the supplemental indenture or the date the waiver becomes effective.

 

Any amendment or waiver once effective shall bind every Securityholder of each Series affected by such amendment or waiver unless it is of the type described in any of clauses (1) through (8) of Section 10.2.  In that case, the amendment or waiver shall bind each Holder of a Security who has consented to it and every subsequent Holder of a Security or portion of a Security that evidences the same debt as the consenting Holder’s Security.

 

It will not be necessary for the consent of the Holders to approve the particular form of any proposed supplement, amendment or waiver, but it will be sufficient if such consent approves the substance of it.

 

The Company may set a record date for purposes of determining the identity of the Holders of each series of Securities entitled to give a written consent or waive compliance by the Company as authorized or permitted by this Section.  Such record date shall not be more than 30 calendar days prior to the first solicitation of such consent or waiver or the date of the most recent list of Holders furnished to the Trustee prior to such solicitation pursuant to Section 312 of the TIA.

 

Promptly after the execution by the Company and the Trustee of any supplemental indenture pursuant to the provisions of this Section 10.4, the Company shall mail a notice, setting forth in general terms the substance of such supplemental indenture, to the Holders of Securities at their addresses as the same shall then appear in the register.  Any failure of the Company to mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture.

 

Section 10.5.        Notation on or Exchange of Securities.

 

The Trustee may place an appropriate notation about an amendment or waiver on any Security of any Series thereafter authenticated.  The Company in exchange for its Securities of that Series may issue and the Trustee shall authenticate upon request new Securities of that Series that reflect the amendment or waiver.

 

Section 10.6.        Trustee Protected.

 

In executing, or accepting the additional trusts created by, any supplemental indenture, amendment or waiver 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 8.1) shall be fully protected in relying upon, an Opinion of Counsel and Officer’s Certificate 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 supplemental indentures which affect the Trustee’s own rights, duties, immunities, or indemnities under this Indenture, the Securities or otherwise.

 

ARTICLE XI.

 MISCELLANEOUS

 

Section 11.1.        Notices.

 

Any request, direction, instruction, demand, document, notice or communication by the Company, any Guarantor or the Trustee to the other, or by a Holder to the Company or the Trustee, shall be in English and in writing and delivered in person, mailed by first-class mail or delivered by overnight courier as follows:

 

if to the Company or any Guarantor:
	MercadoLibre Inc.
	Posta 4789, 6th Floor
	Buenos Aires, Argentina, C1430CRG
	E-mail address: jcimach@mercadolibre.com
	Attention: General Counsel
With a copy to:
	Cleary Gottlieb Steen & Hamilton LLP
	One Liberty Plaza
	New York, New York 10006
	E-mail address: ngrabar@cgsh.com
	Attention: Nicolas Grabar

if to the Trustee:

	The Bank of New York Mellon
	240 Greenwich Street,
	New York, NY 10286
	E-mail address: gcs.specialty.glam.conv@bnymellon.com
	Attention: Corporate Trust Administration

 

Notices shall be effective upon the recipient’s actual receipt thereof.  Any party by notice to the other parties may designate additional or different addresses for subsequent notices or communications.

 

The Trustee agrees to accept and act upon instructions or directions pursuant to this Indenture sent by unsecured e-mail, pdf or other similar unsecured electronic methods, provided, however, that the Trustee shall have received an incumbency certificate listing persons designated to give such instructions or directions and containing specimen signatures of such designated persons, which such incumbency certificate shall be amended and replaced whenever a person is to be added or deleted from the listing.  If the Company elects to give the Trustee e-mail instructions (or instructions by a similar electronic method), the Trustee’s understanding of such instructions shall be deemed controlling.  The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such instructions notwithstanding such instructions conflict or are inconsistent with a subsequent written instruction.  The Company agrees to assume all risks arising out of the use of such electronic methods to submit instructions and directions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized instructions, and the risk or interception and misuse by third parties.

 

Any notice or communication to (i) a Securityholder of a Certificated Security shall be mailed by first-class mail to his address shown on the register kept by the Registrar and (ii) a Securityholder of a Global Security shall be delivered to the Depositary in accordance with its applicable procedures.  Failure to give a notice or communication to a Securityholder of any Series or any defect in it shall not affect its sufficiency with respect to other Securityholders of that or any other Series.

 

If a notice or communication to any Securityholder is given in the manner provided above, within the time prescribed, it is duly given, whether or not the Securityholder receives it.

 

If the Company mails a notice or communication to Securityholders, it shall mail a copy to the Trustee and each Agent at the same time.

 

In respect of this Indenture, the Trustee shall not have any duty or obligation to verify or confirm that the Person sending instructions, directions, reports, notices or other communications or information by electronic transmission is, in fact, a Person authorized to give such instructions, directions, reports, notices or other communications or information on behalf of the party purporting to send such electronic transmission; and the Trustee shall not have any liability for any losses, liabilities, costs or expenses incurred or sustained by any party as a result

of such reliance upon or compliance with such instructions, directions, reports, notices or other communications or information.  Each other party agrees to assume all risks arising out of the use of electronic methods to submit instructions, directions, reports, notices or other communications or information to the Trustee, including without limitation the risk of the Trustee acting on unauthorized instructions, notices, reports or other communications or information, and the risk of interception and misuse by third parties.

 

Section 11.2.         Communication by Holders with Other Holders.

 

Securityholders of a Series may communicate pursuant to TIA § 312(b), as if such section applied hereto, with other Securityholders of such Series with respect to their rights under this Indenture or the Securities.  The Company, the Trustee, the Agents and anyone else shall have the protection of TIA § 312(c).

 

Section 11.3.         Certificate and Opinion as to Conditions Precedent.

 

Upon any request or application by the Company or any Guarantor, if applicable, to the Trustee to take any action under this Indenture, the Company or any such Guarantor shall furnish to the Trustee:

 

 

 

Section 11.4.        Statements Required in Certificate or Opinion.

 

Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (other than a certificate provided pursuant to Section 5.2 in accordance with TIA § 314(a)(4)) shall comply with the provisions of TIA § 314(e) and shall include substantially:

 

 

 

 

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 his or her 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.

 

Any certificate, statement or opinion of an officer of the Company or of counsel to the Company may be based, insofar as it relates to accounting matters, upon a certificate or opinion of, or representations by, an accountant or firm of accountants, unless such officer or counsel, as the case may be, knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the accounting matters upon which his or her certificate, statement or opinion may be based are erroneous.  Any certificate or opinion of any firm of independent registered public accountants filed with the Trustee shall contain a statement that such firm is independent.

 

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.

 

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.

 

Section 11.5.        Rules by Trustee and Agents.

 

The Trustee may make reasonable rules for action by or a meeting of Securityholders of one or more Series.  Any Agent may make reasonable rules and set reasonable requirements for its functions.

 

Section 11.6.        Legal Holidays.

 

If a payment date is not a Business Day, payment may be made at that place on the next succeeding day that is a Business Day, and no interest shall accrue for the intervening period.

 

Section 11.7.        No Personal Liability of Directors, Officers, Employees and Certain Others.

 

No director, officer, employee, incorporator or similar founder, stockholder or member of the Company or any Guarantor, as such, will have any liability for or any obligations of the Company or any Guarantor under this Indenture or the Securities, or any Guarantee or for any claim based on, in respect of or by reason of, such obligations or their creation.  Each Holder of Securities by accepting a Security waives and releases all such liability.  The waiver and release are part of the consideration for issuance of the Securities.  The waiver may not be effective to waive liabilities under the federal securities laws.

 

Section 11.8.        FATCA.

 

The Company agrees that if reasonably requested in writing by the Trustee or any Agent (for purposes of this Section 11.8, the “Trustee”), the Company shall provide such information in its possession as is reasonably necessary for the Trustee to comply with the requirements of Sections 1471 to 1474 of the U.S. Internal Revenue Code, as amended, and any current or future regulations or official interpretations thereof (collectively, “FATCA”), in relation to a payment made under the Indenture, the Securities or any Guarantee; provided, however, that the Company shall not be required to provide any information that it is prohibited from disclosing.  The Trustee shall be entitled to make any withholding or deduction from payments under the Indenture, the Securities or any Guarantee to the extent necessary to comply with FATCA.  The Trustee shall have no liability for, and the Company shall indemnify and hold harmless the Trustee against any liability for, any withholding or deduction made by the Trustee, or any failure by the Trustee to make any withholding or deduction, in each case to the extent such action or failure to act was taken in reliance on the information provided by the Company pursuant to the first sentence of this Section 11.8 or as a result of the Company’s failure to provide information pursuant to the first sentence of this Section 11.8.

 

Section 11.9.        Counterparts.

 

This Indenture may be executed in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute one and the same instrument.  Delivery of an executed counterpart of a signature page of this Indenture by facsimile or in electronic format shall be effective as delivery of a manually executed counterpart of this Indenture.

 

Section 11.10.      Governing Laws.

 

THIS INDENTURE, THE SECURITIES AND ANY GUARANTEE, INCLUDING ANY CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES OR ANY GUARANTEE, SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THE LAW OF THE STATE OF NEW YORK.

 

Section 11.11.       No Adverse Interpretation of Other Agreements.

 

This Indenture may not be used to interpret another indenture, loan or debt agreement of the Company or any Subsidiary of the Company.  Any such indenture, loan or debt agreement may not be used to interpret this Indenture.

 

Section 11.12.      Successors and Assigns.

 

All covenants and agreements of the Company and any Guarantor in this Indenture and the Securities shall bind their respective successors and assigns, whether so expressed or not.  All agreements of the Trustee in this Indenture shall bind its successor.

 

Section 11.13.      Severability.

 

In case any provision in this Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

 

Section 11.14.      Table of Contents, Headings, Etc.

 

The table of contents, cross reference table, and headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part hereof, and shall in no way modify or restrict any of the terms or provisions hereof.

 

Section 11.15.      Judgment Currency.

 

Each of the Company and any Guarantor, if applicable, agrees, to the fullest extent that it may effectively do so under applicable law, that (a) if for the purpose of obtaining judgment in any court it is necessary to convert the sum due in respect of this Indenture or the principal of or interest or other amount on the Securities of any Series (the “Required Currency”) into a currency in which a judgment will be rendered (the “Judgment Currency”), the rate of exchange used shall be the rate at which in accordance with normal banking procedures the recipient could purchase in The City of New York the Required Currency with the Judgment Currency on the day on which final unappealable judgment is entered, unless such day is not a New York Banking Day, then the rate of exchange used shall be the rate at which in accordance with normal banking procedures the recipient could purchase in The City of New York the Required Currency with the Judgment Currency on the New York Banking Day preceding the day on which final unappealable judgment is entered and (b) its obligations under this Indenture to make payments in the Required Currency (i) shall not be discharged or satisfied by any tender, or any recovery pursuant to any judgment (whether or not entered in accordance with subsection (a)), in any currency other than the Required Currency, except to the extent that such tender or recovery shall result in the actual receipt, by the payee, of the full amount of the Required Currency expressed to be payable in respect of such payments, (ii) shall be enforceable as an alternative or additional cause of action for the purpose of recovering in the Required Currency the amount, if any, by which such actual receipt shall fall short of the full amount of the Required Currency so expressed to be payable, and (iii) shall not be affected by judgment being obtained for any other sum due under this Indenture.  For purposes of the foregoing, “New York Banking Day” means any Business Day.

 

Section 11.16.      English Language.

 

This Indenture has been negotiated and executed in the English language.  All certificates, reports, notices and other documents and communications delivered or delivered pursuant to this Indenture (including any modifications or supplements hereto), shall be in the

English language, or accompanied by a certified English translation thereof.  In the case of any document originally issued in a language other than English, the English language version of any such document shall for purposes of this Indenture, and absent manifest error, control the meaning of the matters set out therein.

 

Section 11.17.      Submission to Jurisdiction; Appointment of Agent.

 

Any suit, action or proceeding against the Company or any Guarantor or its respective properties, assets or revenues with respect to this Indenture, the Securities or any Guarantee (a “Related Proceeding”) may be brought in any state or Federal court in the Borough of Manhattan in The City of New York, New York, as the Person bringing such Related Proceeding may elect in its sole discretion.  The Company and any Guarantor hereby consent to the non-exclusive jurisdiction of each such court for the purpose of any Related Proceeding and have irrevocably waived any objection to the laying of venue of any Related Proceeding brought in any such court and to the fullest extent they may effectively do so and the defense of an inconvenient forum to the maintenance of any Related Proceeding or any such suit, action or proceeding in any such court.  The Company and any Guarantor hereby agree that service of all writs, claims, process and summonses in any Related Proceeding brought against them in the State of New York may be made upon Corporation Service Company (the “Process Agent”).  Each of the Company  and any Guarantor has irrevocably appointed the Process Agent as its agent and true and lawful attorney in fact in its name, place and stead to accept such service of any and all such writs, claims, process and summonses, and hereby agrees that the failure of the Process Agent to give any notice to it of any such service of process shall not impair or affect the validity of such service or of any judgment based thereon.  The Company and any Guarantor hereby agree to have an office or to maintain at all times an agent with offices in the United States of America to act as Process Agent.  Nothing in this Indenture shall in any way be deemed to limit the ability to serve any such writs, process or summonses in any other manner permitted by applicable law.

 

Section 11.18.      Waiver of Immunity.

 

To the extent that the Company or any Guarantor has or hereafter may acquire any immunity from jurisdiction of any court or from any legal process (whether through service of notice, attachment prior to judgment, attachment in aid of execution or execution, on the ground of sovereignty or otherwise) with respect to itself or its property, it hereby irrevocably waives, to the fullest extent permitted by applicable law, such immunity in respect of its obligations under this Indenture, Securities and/or any Guarantees.

 

Section 11.19.      Waiver of Jury Trial.

 

EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES, ANY GUARANTEES OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.

 

Section 11.20.          Trust Indenture Act Controls.

 

If any provision of this Indenture limits, qualifies or conflicts with the duties imposed by operation of TIA § 318(c), the imposed duties shall control.

 

IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of the day and year first above written.

 

 

 

 

	MERCADOPAGO.COM REPRESENTAÇÕES LTDA.
	By:	/s/ Pedro Arnt
		Name: Pedro Arnt
		Title: Attorney-in-fact

[Signature Page to Base Indenture]

 

 

[Signature Page to Base Indenture]