Exhibit 4.2


 


EXECUTION COPY


 


DESARROLLADORA HOMEX, S.A.
DE C.V.,


 


The SUBSIDIARY GUARANTORS Party Hereto


 


 


AND


 


THE BANK OF NEW YORK,


 


as TRUSTEE


 


 


7.5% SENIOR GUARANTEED NOTES DUE SEPTEMBER 28,
2015


 


INDENTURE


 


Dated as of September 28, 2005


 





















 


Reconciliation and tie
between

Trust Indenture Act of 1939 (the “Trust Indenture Act”)

and Indenture 


 


	
  Trust Indenture Act Section

  	
   

  	
  Indenture Section

  
	
   

  	
   

  	
   

  
	
  §310(a)(l)

  	
   

  	
  7.10

  
	
  (a)(2)

  	
   

  	
  7.10

  
	
  (b)

  	
   

  	
  7.10

  
	
  §311(a)

  	
   

  	
  7.11

  
	
  (b)

  	
   

  	
  7.11

  
	
  §312(a)

  	
   

  	
  2.5

  
	
  (b)

  	
   

  	
  11.3

  
	
  (c)

  	
   

  	
  11.3

  
	
  §313

  	
   

  	
  7.6

  
	
  §314(a)(1)

  	
   

  	
  3.19

  
	
  (a)(2)

  	
   

  	
  3.19

  
	
  (a)(3)

  	
   

  	
  3.19

  
	
  (a)(4)

  	
   

  	
  3.5

  
	
  (c)(1)

  	
   

  	
  11.4

  
	
  (c)(2)

  	
   

  	
  11.4

  
	
  (e)

  	
   

  	
  11.5

  
	
  §315(a)

  	
   

  	
  7.1, 7.2

  
	
  §315(b)

  	
   

  	
  7.5

  
	
  §315(c)

  	
   

  	
  7.1

  
	
  §315(d)

  	
   

  	
  7.1

  
	
  §315(e)

  	
   

  	
  6.10

  
	
  §316(a) (last sentence)

  	
   

  	
  1.1

  
	
  (a)(l)(A)

  	
   

  	
  6.2, 6.5

  
	
  (a)(1)(B)

  	
   

  	
  6.4

  
	
  (b)

  	
   

  	
  6.2, 6.4

  
	
  (c)

  	
   

  	
  9.4

  
	
  §317(a)(1)

  	
   

  	
  6.8

  
	
  (a)(2)

  	
   

  	
  6.9

  
	
  (b)

  	
   

  	
  2.4

  
	
  §318(a)

  	
   

  	
  1.2, 11.1

  



 


Note:                   This
reconciliation and tie shall not, for any purpose, be deemed to be part of this
Indenture.


 





















 


TABLE OF CONTENTS


 


	
  ARTICLE I

  DEFINITIONS AND INCORPORATION BY REFERENCE

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 1.1

  	
  Definitions

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 1.2

  	
  Incorporation by Reference of Trust
  Indenture Act

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 1.3

  	
  Rules of Construction

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE II

  THE NOTES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 2.1

  	
  Form and Dating

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 2.2

  	
  Execution and Authentication

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 2.3

  	
  Registrar and Paying Agent

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 2.4

  	
  Paying Agent to Hold Money in Trust

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 2.5

  	
  Holder Lists

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 2.6

  	
  Global Note Provisions

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 2.7

  	
  Legends

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 2.8

  	
  Transfer and Exchange

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 2.9

  	
  Mutilated, Destroyed, Lost or Stolen
  Notes

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 2.10

  	
  Temporary Notes

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 2.11

  	
  Cancellation

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 2.12

  	
  Defaulted Interest

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 2.13

  	
  Additional Notes

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 2.14

  	
  Liquidated Damages Under Registration
  Rights Agreements

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE III

  COVENANTS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 3.1

  	
  Payment of Notes

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 3.2

  	
  Maintenance of Office or Agency

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 3.3

  	
  Corporate Existence

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 3.4

  	
  Payment of Taxes

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 3.5

  	
  Compliance Certificate

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 3.6

  	
  Further Instruments and Acts

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 3.7

  	
  Waiver of Stay, Extension or Usury Laws

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 3.8

  	
  Change of Control

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 3.9

  	
  Limitation on Incurrence of Additional
  Indebtedness

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 3.10

  	
  Limitation on Guarantees

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 3.11

  	
  Limitation on Restricted Payments

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 3.12

  	
  Limitation on Asset Sales and Sales of
  Subsidiary Stock

  	
   

  



 


i





















 


	
  Section 3.13

  	
  Limitation on Designation of
  Unrestricted Subsidiaries

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 3.14

  	
  Limitation on Dividends; Payment
  Restrictions Affecting Restricted Subsidiaries

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 3.15

  	
  Limitation on Layered Indebtedness

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 3.16

  	
  Limitation on Liens

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 3.17

  	
  Limitation on Transactions with
  Affiliates

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 3.18

  	
  Conduct of Business

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 3.19

  	
  Reports to Holders

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 3.20

  	
  Listing

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 3.21

  	
  Payment of Additional Amounts

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 3.22

  	
  Suspension of Covenants

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV

  SURVIVING ENTITY

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 4.1

  	
  Merger, Consolidation and Sale of
  Assets

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE V

  OPTIONAL REDEMPTION OF NOTES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 5.1

  	
  Optional Redemption

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 5.2

  	
  Election to Redeem

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 5.3

  	
  Notice of Redemption

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 5.4

  	
  Selection of
  Notes to Be Redeemed in Part

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 5.5

  	
  Deposit of Redemption Price

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 5.6

  	
  Notes Payable on Redemption
  Date

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 5.7

  	
  Unredeemed Portions of
  Partially Redeemed Note

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI

  DEFAULTS AND REMEDIES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 6.1

  	
  Events of Default

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 6.2

  	
  Acceleration

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 6.3

  	
  Other Remedies

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 6.4

  	
  Waiver of Past Defaults

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 6.5

  	
  Control by Majority

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 6.6

  	
  Limitation on Suits

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 6.7

  	
  Rights of Holders to Receive Payment

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 6.8

  	
  Collection Suit by Trustee

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 6.9

  	
  Trustee May File Proofs of Claim,
  etc.

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 6.10

  	
  Priorities

  	
   

  



 


ii





















 


	
  Section 6.11

  	
  Undertaking for Costs

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII

  TRUSTEE

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 7.1

  	
  Duties of Trustee

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 7.2

  	
  Rights of Trustee

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 7.3

  	
  Individual Rights of Trustee

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 7.4

  	
  Trustee’s Disclaimer

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 7.5

  	
  Notice of Defaults

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 7.6

  	
  Reports by Trustee to Holders

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 7.7

  	
  Compensation and Indemnity

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 7.8

  	
  Replacement of
  Trustee

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 7.9

  	
  Successor
  Trustee by Merger

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 7.10

  	
  Eligibility; Disqualification

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 7.11

  	
  Preferential Collection of Claims
  Against Company

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 7.12

  	
  Appointment of Co-Trustee

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 7.13

  	
  Luxembourg Paying Agent

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  DEFEASANCE; DISCHARGE OF INDENTURE

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 8.1

  	
  Legal Defeasance and
  Covenant Defeasance

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 8.2

  	
  Conditions to Defeasance

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 8.3

  	
  Application of Trust Money

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 8.4

  	
  Repayment to Company

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 8.5

  	
  Indemnity for U.S. Government
  Obligations

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 8.6

  	
  Reinstatement

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 8.7

  	
  Satisfaction and Discharge

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX

  AMENDMENTS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 9.1

  	
  Without Consent
  of Holders

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 9.2

  	
  With Consent of
  Holders

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 9.3

  	
  Compliance with Trust
  Indenture Act

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 9.4

  	
  Revocation and Effect of Consents
  and Waivers

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 9.5

  	
  Notation on or Exchange of Notes

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 9.6

  	
  Trustee to Sign Amendments and
  Supplements

  	
   

  



 


iii





















 


	
  ARTICLE X

  NOTE GUARANTEES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 10.1

  	
  Note Guarantees

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 10.2

  	
  Limitation on
  Liability; Termination, Release and Discharge

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 10.3

  	
  Right of Contribution

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 10.4

  	
  No Subrogation

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 10.5

  	
  Additional Note Guarantees

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE XI

  MISCELLANEOUS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 11.1

  	
  Trust Indenture Act
  Controls

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 11.2

  	
  Notices

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 11.3

  	
  Communication by Holders with Other
  Holders

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 11.4

  	
  Certificate and Opinion as
  to Conditions Precedent

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 11.5

  	
  Statements Required in
  Certificate or Opinion

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 11.6

  	
  Rules by Trustee,
  Paying Agent and Registrar

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 11.7

  	
  Legal Holidays

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 11.8

  	
  Governing Law, etc.

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 11.9

  	
  No Recourse Against
  Others

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 11.10

  	
  Successors

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 11.11

  	
  Duplicate and Counterpart
  Originals

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 11.12

  	
  Severability

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 11.13

  	
  Qualification of
  Indenture

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 11.14

  	
  Currency Indemnity

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 11.15

  	
  Table of
  Contents; Headings

  	
   

  



 


iv





















 


	
  EXHIBIT A

  	
  FORM OF NOTE

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBIT B

  	
  FORM OF CERTIFICATE FOR TRANSFER TO
  QIB

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBIT C

  	
  FORM OF CERTIFICATE FOR TRANSFER
  PURSUANT TO REGULATION S

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBIT D

  	
  FORM OF CERTIFICATE FOR TRANSFER
  PURSUANT TO RULE 144

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBIT E

  	
  FORM OF SUPPLEMENTAL INDENTURE FOR
  ADDITIONAL NOTE GUARANTEE

  	
   

  



 


v





















 


INDENTURE, dated as of September 28, 2005,
between Desarrolladora Homex, S.A. de C.V., a corporation (sociedad anónima de capital variable)
organized and existing under the laws of the United Mexican States (the “Company”),
the Subsidiary Guarantors party hereto and The Bank of New York (the “Trustee”),
as Trustee.


 


Each party agrees as follows for the benefit of the
other parties and for the equal and ratable benefit of the Holders of the
Company’s 7.5 % Senior Guaranteed Notes due September 28, 2015 issued
hereunder.


 


ARTICLE I


 


DEFINITIONS AND INCORPORATION BY REFERENCE


 


Section 1.1             Definitions.


 


“Acquired Indebtedness” means Indebtedness of a
Person or any of its Subsidiaries existing at the time such Person becomes a
Restricted Subsidiary or at the time it merges or consolidates with the Company
or any of its Restricted Subsidiaries or is assumed in connection with the
acquisition of assets from such Person. 
Such Indebtedness will be deemed to have been Incurred at the time such
Person becomes a Restricted Subsidiary or at the time it merges or consolidates
with the Company or a Restricted Subsidiary or at the time such Indebtedness is
assumed in connection with the acquisition of assets from such Person.


 


“Additional Amounts” has the meaning assigned
to it in Section 3.21.


 


“Additional Note Board Resolutions” means
resolutions duly adopted by the Board of Directors of the Company and delivered
to the Trustee in an Officers’ Certificate providing for the issuance of
Additional Notes.


 


“Additional Note Guarantee” has the meaning
assigned to it in Section 10.5.


 


“Additional Subsidiary Guarantor” has the
meaning assigned to it in Section 10.5.


 


“Additional Note Supplemental Indenture” means
a supplement to this Indenture duly executed and delivered by the Company, each
Subsidiary Guarantor and the Trustee pursuant to Article IX
providing for the issuance of Additional Notes.


 


“Additional Notes” means the Company’s 7.5 %
Senior Guaranteed Notes due September 28, 2015 originally issued after the
Issue Date pursuant to Section 2.13, including any replacement
Notes and any Exchange Notes as specified in the relevant Additional Note Board
Resolutions or Additional Note Supplemental Indenture issued therefor in
accordance with this Indenture.


 


“Affiliate” means, with respect to any
specified Person, any other Person who directly or indirectly through one or
more intermediaries controls, or is controlled by, or is under common control
with, such specified Person.  The term “control”
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of a Person, whether through the
ownership of voting securities, by contract or otherwise.  For purposes of this definition, the terms “controlling,”
“controlled by” and “under common control with” have correlative meanings.


 


“Agent Members” has the meaning assigned to it
in Section 2.6(b).


 


“Asset Acquisition” means:


 


(a)           an Investment by the Company or any
Restricted Subsidiary in any other Person pursuant to which such Person will
become a Restricted Subsidiary, or will be merged with or into the Company or
any Restricted Subsidiary;


 


1





















 


(b)           the acquisition by the Company or any
Restricted Subsidiary of the assets of any Person (other than a Subsidiary of
the Company) which constitute all or substantially all of the assets of such
Person or comprises any division or line of business of such Person or any
other properties or assets of such Person other than in the ordinary course of
business; or


 


(c)           any Revocation with respect to an
Unrestricted Subsidiary.


 


“Asset Sale” means any direct or indirect sale,
disposition, issuance, conveyance, transfer, lease, assignment or other
transfer, including a Sale and Leaseback Transaction (each, a “disposition”) by
the Company or any Restricted Subsidiary of:


 


(a)           any Capital Stock of any Restricted
Subsidiary (but not Capital Stock of the Company); or


 


(b)           any property or assets (other than
cash or Cash Equivalents or Capital Stock of the Company) of the Company or any
Restricted Subsidiary.


 


Notwithstanding the preceding, the following items
will not be deemed to be Asset Sales:


 


(1)           the disposition of all or
substantially all of the assets of the Company and its Restricted Subsidiaries
as permitted under Section 4.1;


 


(2)           sales of homes and land in the
ordinary course of business;


 


(3)           land, infrastructure and other
properties donated to communities in connection with construction and
development of housing complexes by the Company or its Restricted Subsidiaries
in the ordinary course of business consistent with past practice;


 


(4)           sales, leases, conveyances or other
dispositions, including, without limitation, exchanges or swaps of real estate,
for the development of the Company’s or any of its Restricted Subsidiaries’
projects in the ordinary course of business;


 


(5)           sales, leases, sale-leasebacks or
other dispositions of amenities, model homes and other improvements at the
Company’s or its Restricted Subsidiaries’ projects in the ordinary course of
business;


 


(6)           for purposes of Section 3.12
only, the making of a Restricted Payment permitted under Section 3.11
or any Permitted Investment;


 


(7)           a disposition to the Company or a
Restricted Subsidiary, including a Person that is or will become a Restricted
Subsidiary immediately after the disposition;


 


(8)           any single transaction or series of
related transactions that involves assets or Capital Stock of a Restricted
Subsidiary having a Fair Market Value of less than US$5 million;


 


(9)           a transfer of assets between or among
the Company and any of its Restricted Subsidiaries;


 


(10)         an issuance or sale of Capital Stock by
a Restricted Subsidiary of the Company to the Company or any of its Restricted
Subsidiaries;


 


(11)         a disposition of accounts receivable in
connection with a Receivables Transaction;


 


(12)         any sale or other disposition of
damaged, worn-out, obsolete or no longer useful assets or properties in the
ordinary course of business;


 


2





















 


(13)         any sale of assets received by the
Company or any of its Restricted Subsidiaries upon the foreclosure on a Lien in
the ordinary course of business; and


 


(14)         the good faith surrender or waiver of
contract rights, tort claims or statutory rights in connection with a
settlement.


 


“Asset Sale Offer” has the meaning assigned to
it in Section 3.12.


 


“Asset Sale Offer Amount” has the meaning
assigned to it in Section 3.12.


 


“Asset Sale Offer Notice” means notice of an
Asset Sale Offer made pursuant to Section 3.12, which shall be
mailed first class, postage prepaid, to each record Holder as shown on the Note
Register within 20 days following the 365th day after the receipt of Net Cash
Proceeds of any Asset Sale, with a copy to the Trustee which notice shall
govern the terms of the Asset Sale Offer, and shall state:


 


(1)           the circumstances of the Asset Sale
or Sales, the Net Cash Proceeds of which are included in the Asset Sale Offer,
that an Asset Sale Offer is being made pursuant to Section 3.12,
and that all Notes that are timely tendered will be accepted for payment;


 


(2)           the Asset Sale Offer Amount and the
Asset Sale Offer Payment Date;


 


(3)           that any Notes or portions thereof
not tendered or accepted for payment will continue to accrue interest;


 


(4)           that, unless the Company defaults in
the payment of the Asset Sale Offer Amount with respect thereto, all Notes or
portions thereof accepted for payment pursuant to the Asset Sale Offer shall
cease to accrue interest from and after the Asset Sale Offer Payment Date;


 


(5)           that any Holder electing to have any
Notes or portions thereof purchased pursuant to the Asset Sale Offer will be required
to surrender such Notes, with the form entitled “Option of Holder to Elect
Purchase” on the reverse of such Notes completed, to the Paying Agent at the
address specified in the notice prior to the close of business on the third
Business Day preceding the Asset Sale Offer Payment Date;


 


(6)           that any Holder shall be entitled to
withdraw such election if the Paying Agent receives, not later than the close
of business on the second Business Day preceding the Asset Sale Offer Payment
Date, a facsimile transmission or letter, setting forth the name of the Holder,
the principal amount of Notes delivered for purchase, and a statement that such
Holder is withdrawing such Holder’s election to have such Notes or portions
thereof purchased pursuant to the Asset Sale Offer;


 


(7)           that any Holder electing to have
Notes purchased pursuant to the Asset Sale Offer must specify the principal
amount that is being tendered for purchase, which principal amount must be
US$1,000 or an integral multiple thereof;


 


(8)           that any Holder of Certificated Notes
whose Certificated Notes are being purchased only in part will be issued new
Certificated Notes equal in principal amount to the unpurchased portion of the
Certificated Note or Notes surrendered, which unpurchased portion will be equal
in principal amount to US$1,000 or an integral multiple thereof;


 


(9)           that the Trustee will return to the
Holder of a Global Note that is being purchased in part, such Global Note with
a notation on the schedule of increases or decreases thereof adjusting the
principal amount thereof to be equal to the unpurchased portion of such Global
Note; and


 


(10)         any other information reasonably
necessary to enable any Holder to tender Notes and to have such Notes purchased
pursuant to Section 3.12.


 


3





















 


“Asset Sale Offer Payment Date” shall be a
Business Day no earlier than 30 days nor later than 60 days from the date the
Asset Sale Offer Notice is mailed (other than as may be required by law).


 


“Asset Sale Transaction” means any Asset Sale
and, whether or not constituting an Asset Sale, (1) any sale or other
disposition of Capital Stock, (2) any Designation with respect to an
Unrestricted Subsidiary and (3) any sale or other disposition of property
or assets excluded from the definition of Asset Sale by clause (2) of
that definition.


 


“Authenticating Agent” has the meaning assigned
to it in Section 2.2(d).


 


“Authorized Agent” has the meaning assigned to
it in Section 11.8(c).


 


“Bankruptcy Law” means Title 11, U.S. Code
or any similar Federal, state or non-U.S. law for the relief of debtors,
including the Mexican Ley de Concursos Mercantiles.


 


“Bankruptcy Law Event of Default” means:


 


(1)           the entry by a court of competent
jurisdiction of:  (i) a decree or
order for relief in respect of any Bankruptcy Party in an involuntary case or
proceeding under any Bankruptcy Law or (ii) a decree or order (A) adjudging
any Bankruptcy Party a bankrupt or insolvent, (B) approving as properly
filed a petition seeking reorganization, arrangement, adjustment or composition
of, or in respect of, any Bankruptcy Party under any Bankruptcy Law, (C) appointing
a Custodian of any Bankruptcy Party or of any substantial part of the property
of any Bankruptcy Party, or (D) ordering the winding-up or liquidation of
the affairs of any Bankruptcy Party, and in each case, the continuance of any
such decree or order for relief or any such other decree or order unstayed and
in effect for a period of 60 consecutive calendar days; or


 


(2)           (i) the commencement by any
Bankruptcy Party of a voluntary case or proceeding under any Bankruptcy Law or
of any other case or proceeding to be adjudicated a bankrupt or insolvent, (ii) the
consent by any Bankruptcy Party to the entry of a decree or order for relief in
respect of any Bankruptcy Party in an involuntary case or proceeding under any
Bankruptcy Law or to the commencement of any bankruptcy or insolvency case or
proceeding against any Bankruptcy Party, (iii) the filing by any
Bankruptcy Party of a petition or answer or consent seeking reorganization or
relief under any Bankruptcy Law, (iv) the consent by any Bankruptcy Party
to the filing of such petition or to the appointment of or taking possession by
a Custodian of any Bankruptcy Party or of any substantial part of the Property
of any Bankruptcy Party, (v) the making by any Bankruptcy Party of an
assignment for the benefit of creditors, (vi) the admission by any
Bankruptcy Party in writing of its inability to pay its debts generally as they
become due, or (vii) the approval by stockholders of any Bankruptcy Party
of any plan or proposal for the liquidation or dissolution of any Bankruptcy
Party, or (viii) the taking of corporate action by any Bankruptcy Party in
furtherance of any action referred to in clauses (i) – (vii) above.


 


“Bankruptcy Party” means the Company or any of
its Restricted Subsidiaries.


 


“Board of Directors” means, as to any Person,
the board of directors, management committee or similar governing body of such
Person or any duly authorized committee thereof.


 


“Board Resolution” means, with respect to any
Person, a copy of a resolution certified by the Secretary or an Assistant
Secretary of such Person to have been duly adopted by the Board of Directors of
such Person and to be in full force and effect on the date of such
certification, and delivered to the Trustee.


 


“Business Day” means a day other than a
Saturday, Sunday or other day on which commercial banking institutions are
authorized or required by law to close in New York City.


 


“Capitalized Lease Obligations” means, as to
any Person, the obligations of such Person under a lease that are required to
be classified and accounted for as capital lease obligations under GAAP.  For purposes of this definition, the amount
of such obligations at any date shall be the capitalized amount of such
obligations at such date, determined in accordance with GAAP.


 


4





















 


“Capital Stock” means:


 


(1)           with respect to any Person that is a
corporation, any and all shares, interests, participations or other equivalents
(however designated and whether or not voting) of corporate stock, including
each class of Common Stock and Preferred Stock of such Person;


 


(2)           with respect to any Person that is
not a corporation, any and all partnership or other equity or ownership
interests of such Person; and


 


(3)           any warrants, rights or options to
purchase any of the instruments or interests referred to in clause (1) or (2) above.


 


“Cash Equivalents” means:


 


(1)           marketable direct obligations issued
by, or unconditionally guaranteed by, the United States government or issued by
any agency thereof and backed by the full faith and credit of the United
States, in each case maturing within one year from the date of acquisition
thereof;


 


(2)           Certificados
de la Tesoreria de la Federación (Cetes) or Bonos de Desarrollo del Gobierno Federal
(Bondes), in each case, issued by the government of Mexico and maturing not
later than one year after the acquisition thereof;


 


(3)           marketable direct obligations issued
by any state of the United States of America or any political subdivision of
any such state or any public instrumentality thereof maturing within one year
from the date of acquisition thereof and, at the time of acquisition, having
one of the two highest ratings obtainable from either S&P or Moody’s or any
successor thereto;


 


(4)           commercial paper maturing no more
than one year from the date of creation thereof and, at the time of
acquisition, having a rating of at least A-1 from S&P or at least P-1 from
Moody’s;


 


(5)           demand deposits, certificates of
deposit, time deposits or bankers’ acceptances maturing within one year from
the date of acquisition thereof issued by (a) any bank organized under the
laws of the United States of America or any state thereof or the District of
Columbia, (b) any U.S. branch of a non-U.S. bank having at the
date of acquisition thereof combined capital and surplus of not less than
US$500 million, or (c) in the case of Mexican peso deposits, any of
the five top-rated banks (as evaluated by an internationally recognized rating
agency) organized under the laws of Mexico;


 


(6)           repurchase obligations with a term of
not more than seven days for underlying securities of the types described in
clause (1) above entered into with any bank meeting the
qualifications specified in clause (5) above; and


 


(7)           investments in money market funds
which invest substantially all of their assets in securities of the types
described in clauses (1) through (6) above.


 


“Certificated Note” means any Note issued in
fully-registered certificated form (other than a Global Note), which shall be
substantially in the form of Exhibit A, with appropriate legends as
specified in Section 2.7 and Exhibit A.


 


“Change of Control” means the occurrence of one
or more of the following events:


 


(1)           any Person or Group other than the
Permitted Holders is or becomes the beneficial owner (as defined below),
directly or indirectly, in the aggregate of more than 50% of the total voting
power of the Voting Stock of the Company (including a Surviving Entity, if
applicable);


 


5





















 


(2)           during any period of two consecutive
years, individuals who at the beginning of such period constituted the Board of
Directors of the Company, together with any new directors whose election by
such Board of Directors or whose nomination for election by the shareholders of
the Company was approved by a vote of a majority of the directors of the
Company then still in office who were either directors at the beginning of such
period or whose election or nomination for election was previously so approved,
cease for any reason to constitute a majority of the Board of Directors of the
Company then in office;


 


(3)           the Company consolidates with, or
merges with or into, another Person, or the Company sells, conveys, assigns,
transfers, leases or otherwise disposes of all or substantially all of the
assets of the Company, determined on a consolidated basis, to any Person, other
than a transaction where the Person or Persons that, immediately prior to such
transaction “beneficially owned” the outstanding Voting Stock of the Company
are, by virtue of such prior ownership, or Permitted Holders are, the “beneficial
owners” in the aggregate of a majority of the total voting power of the then
outstanding Voting Stock of the surviving or transferee person (or if such
surviving or transferee Person is a direct or indirect wholly-owned subsidiary
of another Person, such Person who is the ultimate parent entity), in each case
whether or not such transaction is otherwise in compliance with this Indenture;
or


 


(4)           the approval by the holders of
Capital Stock of the Company of any plan or proposal for the liquidation or
dissolution of the Company, whether or not otherwise in compliance with the
provisions of this Indenture.


 


For purposes of this definition:


 


(a)           “beneficial owner” shall have the
meaning specified in Rules 13d-3 and 13d-5 under the Exchange Act, except
that any Person or Group shall be deemed to have “beneficial ownership” of all
securities that such Person or Group has the right to acquire, whether such
right is exercisable immediately, only after the passage of time or, except in
the case of the Permitted Holders, upon the occurrence of a subsequent
condition.


 


(b)           “Person” and “Group” shall have the
meanings for “person” and “group” as used in Sections 13(d) and 14(d) of
the Exchange Act; and


 


(c)           the Permitted Holders or any other
Person or Group shall be deemed to beneficially own any Voting Stock of a
corporation held by any other corporation (the “parent corporation”) so long as
the Permitted Holders or such other Person or Group, as the case may be,
beneficially own, directly or indirectly, in the aggregate at least 50% of the
voting power of the Voting Stock of the parent corporation and no other Person
or Group beneficially owns an equal or greater amount of the Voting Stock of
the parent corporation.


 


“Change of Control Notice” means notice of a
Change of Control Offer made pursuant to Section 3.8, which shall
be (i) mailed first-class, postage prepaid, to each record Holder as shown
on the Note Register within 30 days following the date upon which a Change of
Control occurred, with a copy to the Trustee, and (ii) published in a
newspaper having a general circulation in Luxembourg (which is expected to be
the Luxemburger Wort), which
notice shall govern the terms of the Change of Control Offer and shall state:


 


(1)           that a Change of Control has
occurred, the circumstances or events causing such Change of Control and that a
Change of Control Offer is being made pursuant to Section 3.8 ,
and that all Notes that are timely tendered will be accepted for payment;


 


(2)           the Change of Control Payment, and
the Change of Control Payment Date;


 


(3)           that any Notes or portions thereof
not tendered or accepted for payment will continue to accrue interest;


 


(4)           that, unless the Company defaults in
the payment of the Change of Control Payment with respect thereto, all Notes or
portions thereof accepted for payment pursuant to the Change of Control Offer
shall cease to accrue interest from and after the Change of Control Payment
Date;


 


6





















 


(5)           that any Holder electing to have any
Notes or portions thereof purchased pursuant to a Change of Control Offer will
be required to tender such Notes, with the form entitled “Option of Holder to
Elect Purchase” on the reverse of such Notes completed, to the Paying Agent at
the address specified in the notice prior to the close of business on the third
Business Day preceding the Change of Control Payment Date;


 


(6)           that any Holder shall be entitled to
withdraw such election if the Paying Agent receives, not later than the close
of business on the second Business Day preceding the Change of Control Payment
Date, a facsimile transmission or letter, setting forth the name of the Holder,
the principal amount of Notes delivered for purchase, and a statement that such
Holder is withdrawing such Holder’s election to have such Notes or portions
thereof purchased pursuant to the Change of Control Offer;


 


(7)           that any Holder electing to have
Notes purchased pursuant to the Change of Control Offer must specify the
principal amount that is being tendered for purchase, which principal amount
must be US$1,000 or an integral multiple thereof;


 


(8)           that any Holder of Certificated Notes
whose Certificated Notes are being purchased only in part will be issued new
Certificated Notes equal in principal amount to the unpurchased portion of the
Certificated Note or Notes surrendered, which unpurchased portion will be equal
in principal amount to US$1,000 or an integral multiple thereof;


 


(9)           that the Trustee will return to the
Holder of a Global Note that is being purchased in part, such Global Note with
a notation on Schedule A thereof adjusting the principal amount thereof to
be equal to the unpurchased portion of such Global Note;


 


(10)         that, in the event that Holders of not
less than 95% of the aggregate principal amount of the outstanding Notes accept
a Change of Control Offer and the Company or third party purchases all of the
Notes held by such Holders, the Company will have the right, upon prior notice,
to redeem all of the Notes that remain outstanding in accordance with Section 3.8(e);
and


 


(11)         any other information necessary to
enable any Holder to tender Notes and to have such Notes purchased pursuant to Section 3.8.


 


“Change of Control Offer” has the meaning
assigned to it in Section 3.8.


 


“Change of Control Payment” has the meaning
assigned to it in Section 3.8.


 


“Change of Control Payment Date” shall be a
Business Day no earlier than 30 days nor later than 60 days subsequent to the
date on which the Change of Control Notice is mailed (other than as may be
required by law);


 


“Clearstream Luxembourg” means Clearstream
Banking, société anonyme, or the successor to its securities clearance and
settlement operations.


 


“Code” means the Internal Revenue Code of 1986,
as amended.


 


“Commodity Agreement” means any commodity or raw material futures contract,
commodity or raw materials option, or any other agreement designed to protect
against or manage exposure to fluctuations in commodity or raw materials
prices.


 


“Common Stock” of any Person means any and all
shares, interests or other participations in, and other equivalents (however
designated and whether voting or non-voting) of such Person’s common equity
interests, whether outstanding on the Issue Date or issued after the Issue
Date, and includes, without limitation, all series and classes of such common
equity interests.


 


7





















 


“Company” means the party named as such in the
introductory paragraph to this Indenture and its successors and assigns,
including any Surviving Entity.


 


“Company Order” has the meaning assigned to it
in Section 2.2(c).


 


“Consolidated EBITDA” means, for any Person for
any period, Consolidated Net Income for such Person for such period, plus the
following, without duplication, to the extent deducted or added in calculating
such Consolidated Net Income:


 


(1)           Consolidated Income Tax Expense for
such Person for such period;


 


(2)           Consolidated Interest Expense for such
Person for such period;


 


(3)           Consolidated Non-cash Charges for
such Person for such period;


 


(4)           net after-tax losses from Asset Sale
Transactions or abandonments or reserves relating thereto for such period;


 


(5)           any income or loss from discontinued
operations;


 


less (x) all
non-cash credits and gains increasing Consolidated Net Income for such Person
for such period, other than any items which represent the reversal in such
period of any accrual of, or cash reserve for, anticipated charges in any prior
period where such accrual or reserve is no longer required under GAAP and
(y) all cash payments made by such Person and its Subsidiaries (Restricted
Subsidiaries in the case of the Company) during such period relating to
non-cash charges that were added back in determining Consolidated EBITDA in any
prior period.


 


Notwithstanding the foregoing, the items specified in
clauses (1) and (3) above for any Subsidiary (Restricted
Subsidiary in the case of the Company) shall be added to Consolidated Net
Income in calculating Consolidated EBITDA for any period:


 


(a)           in proportion to the percentage of
the total Capital Stock of such Subsidiary (Restricted Subsidiary in the case
of the Company) held directly or indirectly by such Person at the date of
determination, and


 


(b)           to the extent that a corresponding
amount would be permitted at the date of determination to be distributed to
such Person by such Subsidiary (Restricted Subsidiary in the case of the
Company) pursuant to its charter and bylaws and each law, regulation, agreement
or judgment applicable to such distribution.


 


“Consolidated Fixed Charge Coverage Ratio”
means, for any Person as of any date of determination, the ratio of the
aggregate amount of Consolidated EBITDA of such Person for the four most recent
full fiscal quarters for which financial statements are available ending prior
to the date of such determination (the “Four Quarter Period”) to Consolidated
Fixed Charges for such Person for such Four Quarter Period.  For purposes of this definition, “Consolidated
EBITDA” and “Consolidated Fixed Charges” will be calculated after giving effect
on a pro forma basis in accordance with Regulation S-X under the Securities Act
for the period of such calculation to:


 


(1)           the Incurrence or repayment or
redemption of any Indebtedness (including Acquired Indebtedness) of such Person
or any of its Subsidiaries (Restricted Subsidiaries in the case of the
Company), and the application of the proceeds thereof, including the Incurrence
of any Indebtedness (including Acquired Indebtedness), and the application of
the proceeds thereof, giving rise to the need to make such determination,
occurring during such Four Quarter Period or at any time subsequent to the last
day of such Four Quarter Period and on or prior to such date of determination,
to the extent, in the case of an Incurrence, such Indebtedness is outstanding
on the date of determination, as if such Incurrence and the application of the
proceeds thereof, repayment or redemption occurred on the first day of such Four
Quarter Period; and


 


8





















 


(2)           any Asset Sale Transaction or Asset
Acquisition by such Person or any of its Subsidiaries (Restricted Subsidiaries,
in the case of the Company), including any Asset Sale Transaction or Asset
Acquisition giving rise to the need to make such determination occurring during
the Four Quarter Period or at any time subsequent to the last day of the Four
Quarter Period and on or prior to such date of determination, as if such Asset
Sale Transaction or Asset Acquisition occurred on the first day of the Four
Quarter Period.


 


Furthermore, in calculating “Consolidated Fixed
Charges” for purposes of determining the denominator (but not the numerator) of
this “Consolidated Fixed Charge Coverage Ratio,”


 


(a)           interest on outstanding Indebtedness
determined on a fluctuating basis as of the date of determination and which
will continue to be so determined thereafter shall be deemed to have accrued at
a fixed rate per annum equal to the rate of interest on such Indebtedness in
effect on such date of determination;


 


(b)           if interest on any Indebtedness
actually Incurred on such date of determination may optionally be determined at
an interest rate based upon a factor of a prime or similar rate, a eurocurrency
interbank offered rate, or other rates, then the interest rate in effect on
such date of determination shall be deemed to have been in effect during the
Four Quarter Period;


 


(c)           notwithstanding clause (a) above,
interest on Indebtedness determined on a fluctuating basis, to the extent such
interest is covered by Hedging Obligations, shall be deemed to accrue at the
rate per annum resulting after giving effect to the operation of such
agreements;


 


(d)           interest on a Capital Lease
Obligation shall be deemed to accrue at an interest rate reasonably determined
by a responsible financial or accounting officer of the Company to be the rate
of interest implicit in such Capital Lease Obligation in accordance with GAAP;
and


 


(e)           for purposes of making the computation
referred to above, interest on any Indebtedness under a revolving credit
facility computed on a pro forma basis shall be computed based upon the average
daily balance of such Indebtedness during the applicable period.


 


“Consolidated Fixed Charges” means, for any
Person for any period, the sum, without duplication, of:


 


(1)           Consolidated Interest Expense for
such Person for such period,


 


plus


 


(2)           the amount of all cash and non-cash
dividend payments on any series of Preferred Stock or Disqualified Capital
Stock of such Person (other than dividends paid in Qualified Capital Stock) or
any Subsidiary of such Person (Restricted Subsidiary in the case of the
Company) paid, accrued or scheduled to be paid or accrued during such period,
excluding dividend payments on Preferred Stock or Disqualified Capital Stock
paid, accrued or scheduled to be paid to such Person or another Subsidiary
(Restricted Subsidiary in the case of the Company).


 


“Consolidated Income Tax Expense” means, with
respect to any Person for any period, the provision for U.S. federal,
state, local and non-U.S. income taxes payable by such Person and its
Subsidiaries (Restricted Subsidiaries in the case of the Company) for such
period as determined on a consolidated basis in accordance with GAAP.


 


“Consolidated Interest Expense” means, for any
Person for any period, the sum of, without duplication determined on a
consolidated basis in accordance with GAAP:


 


(1)           the aggregate of cash and non-cash
interest expense of such Person and its Subsidiaries (Restricted Subsidiaries
in the case of the Company) for such period determined on a consolidated basis
in accordance with GAAP, including, without limitation (whether or not interest
expense in accordance with GAAP):


 


9





















 


(a)           any amortization or accretion of debt
discount or any interest paid on Indebtedness of such Person and its
Subsidiaries (Restricted Subsidiaries in the case of the Company) in the form
of additional Indebtedness,


 


(b)           any amortization of deferred
financing costs,


 


(c)           the net costs under Hedging
Obligations (but excluding amortization of fees),


 


(d)           all capitalized interest,


 


(e)           the interest portion of any deferred
payment obligation,


 


(f)            commissions, discounts and other
fees and charges Incurred in respect of letters of credit or bankers’
acceptances, and


 


(g)           any interest expense paid in respect
of Indebtedness of another Person that is Guaranteed by such Person or one of
its Subsidiaries (Restricted Subsidiaries in the case of the Company) or
secured by a Lien on the assets of such Person or one of its Subsidiaries
(Restricted Subsidiaries in the case of the Company); and


 


(2)           the interest component of Capitalized
Lease Obligations paid, accrued and/or scheduled to be paid or accrued by such
Person and its Subsidiaries (Restricted Subsidiaries in the case of the
Company) during such period.


 


“Consolidated Net Income” means, with respect
to any Person for any period, the aggregate net income (or loss) of such Person
and its Subsidiaries (after deducting (or adding) the portion of such net
income (or loss) attributable to minority interests in Subsidiaries of such
Person) for such period on a consolidated basis, determined in accordance with
GAAP; provided, that there shall
be excluded therefrom to the extent reflected in such aggregate net income
(loss):


 


(1)           net after-tax gains or losses from
Asset Sale Transactions or abandonments or reserves relating thereto;


 


(2)           net after-tax items classified as
extraordinary gains or losses;


 


(3)           the net income (but not loss) of any
Person, other than such Person and any Subsidiary of such Person (Restricted
Subsidiary in the case of the Company); except that, solely for purposes of
calculating Consolidated Net Income pursuant to Section 3.11(a)(3) only,
Consolidated Net Income of the Company will include the Company’s proportionate
share of the net income of:


 


(a)           any Person acquired in a “pooling of
interests” transaction accrued prior to the date it becomes a Restricted
Subsidiary or is merged or consolidated with the Company or any Restricted
Subsidiary; or


 


(b)           a Surviving Entity prior to assuming
the Company’s obligations under this Indenture and the Notes pursuant to Section 4.1;


 


(4)           the net income (but not loss) of any
Subsidiary of such Person (Restricted Subsidiary in the case of the Company) to
the extent that (and only so long as) a corresponding amount could not be
distributed to such Person at the date of determination as a result of any
restriction pursuant to the constituent documents of such Subsidiary
(Restricted Subsidiary in the case of the Company) or any law, regulation,
agreement or judgment applicable to any such distribution;


 


(5)           any increase (but not decrease) in
net income attributable to minority interests in any Subsidiary (Restricted
Subsidiary in the case of the Company);


 


10





















 


(6)           any gain (or loss) from foreign
exchange translation or change in net monetary position;


 


(7)           any gains or losses (less all fees
and expenses or charges relating thereto) attributable to the early
extinguishment of Indebtedness and Hedging Obligations; and


 


(8)           the cumulative effect of changes in
accounting principles.


 


“Consolidated Net Worth” means, for any Person
at any time, the consolidated stockholders’ equity of such Person at such time,
determined on a consolidated basis in accordance with GAAP, less (without
duplication) amounts attributable to Disqualified Capital Stock of such Person.


 


“Consolidated Non-cash Charges” means, for any
Person for any period, the aggregate depreciation, amortization and other
non-cash expenses or losses of such Person and its Subsidiaries (Restricted
Subsidiaries in the case of the Company) for such period, determined on a
consolidated basis in accordance with GAAP (excluding any such charge which
constitutes an accrual of or a reserve for cash charges for any future period
or the amortization of a prepaid cash expense paid in a prior period).


 


“Consolidated Tangible Assets” means, for any
Person at any time, the total consolidated assets of such Person and its
Subsidiaries (Restricted Subsidiaries in the case of the Company) as set forth
on the balance sheet as of the most recent fiscal quarter of such Person,
prepared in accordance with GAAP, less (i) Intangible Assets and (ii) any
assets securing Non-Recourse Indebtedness.


 


“Consolidated Tangible Net Worth” means, for
any Person at any time, the Consolidated Net Worth of such Person at such time,
less the amount of Intangible Assets reflected on the consolidated balance
sheet of such Person at such time.


 


“Corporate Trust Office” means the principal
office of the Trustee at which at any time its corporate trust business shall
be administered, which office at the date hereof is located at 101 Barclay
Street, 21 West, New York, NY 10286, Fax (212) 815-5802/5803, Attention:  Global Finance Americas, or such other
address as the Trustee may designate from time to time by notice to the Holders
and the Company, or the principal corporate trust office of any successor Trustee
(or such other address as such successor Trustee may designate from time to
time by notice to the Holders and the Company).(1)


 


“Covenant Defeasance” has the meaning assigned
to it in Section 8.1(c).


 


“Credit Facilities” means one or more debt
facilities, commercial paper facilities or Debt Issuances, in each case with
banks, investment banks, insurance companies, mutual funds and/or other
institutional lenders or institutional investors providing for revolving credit
loans, term loans, letters of credit or Debt Issuances, in each case, as
amended, extended, renewed, restated, Refinanced (including, Refinancing with
Debt Issuances), supplemented or otherwise modified (in whole or in part, and
without limitation as to amount, terms, conditions, covenants and other
provisions) from time to time.


 


“Currency Agreement” means, in respect of any
Person, any foreign exchange contract, currency swap agreement or other similar
agreement as to which such Person is a party designed to hedge foreign currency
risk of such Person.


 


“Custodian” means any receiver, trustee,
assignee, liquidator, conciliador,
síndico, sequestrator or similar
official under any Bankruptcy Law.


 


“Debt Issuances” means, with respect to the
Company or any Restricted Subsidiary, one or more issuances after the Issue
Date of Indebtedness evidenced by notes, debentures, bonds or other similar
securities or instruments.


 










(1) BONY to provide.


 


11





















 


“Default” means an event or condition the
occurrence of which is, or with the lapse of time or the giving of notice or
both would be, an Event of Default.


 


“Defaulted Interest” has the meaning assigned
to it in paragraph 1 of the Form of Reverse Side of Note contained in Exhibit A.


 


“Designation” and “Designation Amount”
have the meanings set forth in Section 3.13.


 


“Disqualified Capital Stock” means that portion
of any Capital Stock which, by its terms (or by the terms of any security into
which it is convertible or for which it is exchangeable at the option of the
holder thereof), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable
at the sole option of the holder thereof, in any case, on or prior to the final
maturity date of the Notes; provided, however, that any
variable portion of the Company’s Capital Stock shall not constitute
Disqualified Stock and any Capital Stock that would not constitute Disqualified
Stock but for provisions thereof giving holders thereof the right to require
such Person to purchase or redeem such Capital Stock upon the occurrence of an “asset
sale” or “change of control” occurring prior to the final maturity of the Notes
shall not constitute Disqualified Stock if:


 


(1)           the “asset sale” or “change of
control” provisions applicable to such Capital Stock are no more favorable to
the holders of such Capital Stock than the terms applicable to the Notes and
described under Section 3.8 and Section 3.12; and


 


(2)           any such requirement only becomes operative
after compliance with such terms applicable to the Notes, including the
purchase of any Notes tendered pursuant thereto.


 


The amount of any Disqualified Capital Stock shall be
equal to the greater of its voluntary or involuntary liquidation preference and
its maximum fixed repurchase price, but excluding accrued dividends, if
any.  The amount of any Disqualified
Stock that does not have a fixed redemption, repayment or repurchase price
shall be calculated in accordance with the terms of such Disqualified Stock as
if such Disqualified Stock were redeemed, repaid or repurchased on any date on
which the amount of such Disqualified Stock is to be determined hereunder; provided, however, that if such Disqualified Stock could not be required to be
redeemed, repaid or repurchased at the time of such determination, the
redemption, repayment or repurchase price shall be the book value of such
Disqualified Stock as reflected in the most recent financial statements of such
Person.


 


“Distribution Compliance Period” means, in
respect of any Regulation S Global Note, the 40 consecutive days beginning
on and including the later of (a) the day on which any Notes represented
thereby are offered to persons other than distributors (as defined in
Regulation S under the Securities Act) pursuant to Regulation S and (b) the
issue date for such Notes.


 


“DTC” means The Depository Trust Company, its
nominees and their respective successors and assigns, or such other depositary
institution hereinafter appointed by the Company that is a clearing agency
registered under the Exchange Act.


 


“Equity Offering” has the meaning set forth
under Section 5 of Exhibit A.


 


“Euroclear” means Euroclear S.A./N.V., as
operator of the Euroclear System, or its successor in such capacity.


 


“Event of Default” has the meaning assigned to
it in Section 6.1.


 


“Exchange Act” means the Securities Exchange
Act of 1934, as amended, or any successor statute or statutes thereto.


 


“Exchange Notes” means any of the Company’s
7.5% Senior Guaranteed Notes due September 28, 2015, guaranteed by the
Subsidiary Guarantors, issued and authenticated pursuant to this Indenture in a


 


12





















 


Registered Exchange Offer
in exchange for a like principal amount of Notes originally issued pursuant to
an exemption from registration under the Securities Act and with terms
substantially identical in all material respects to such Notes (except that the
transfer restrictions pertaining to the Notes will be modified or eliminated,
as appropriate), and any replacement Notes issued therefor in accordance with
this Indenture.


 


“Exchange Offer Registration Statement” shall
have the meaning assigned to such term in the Issue Date Registration Rights
Agreement and any other Registration Rights Agreement.


 


“Fair Market Value” means, with respect to any
asset, the price (after deducting any liabilities relating to such assets)
which could be negotiated in an arm’s-length free market transaction, for cash,
between a willing seller and a willing and able buyer, neither of which is
under any compulsion to complete the transaction; provided, that the Fair Market Value of any such asset or
assets will be determined conclusively by the Board of Directors of the Company
acting in good faith, and will be evidenced by a Board Resolution.


 


“Four Quarter Period” has the meaning set forth
in the definition of Consolidated Fixed Charge Coverage Ratio above.


 


“GAAP” means generally accepted accounting
principles in Mexico that are in effect as of the Issue Date.


 


“Global Note” means any Note issued in
fully-registered certificated form to DTC (or its nominee), as depositary for
the beneficial owners thereof, which shall be substantially in the form of Exhibit A,
with appropriate legends as specified in Section 2.7 and Exhibit A.


 


“Guarantee” means any obligation, contingent or
otherwise, of any Person directly or indirectly guaranteeing any Indebtedness
of any other Person:


 


(1)           to purchase or pay, or advance or
supply funds for the purchase or payment of, such Indebtedness of such other
Person, whether arising by virtue of partnership arrangements, or by agreement
to keep-well, to purchase assets, goods, securities or services, to
take-or-pay, or to maintain financial statement conditions or otherwise, or


 


(2)           entered into for purposes of assuring
in any other manner the obligee of such Indebtedness of the payment thereof or
to protect such obligee against loss in respect thereof, in whole or in part,


 


provided,
that “Guarantee” will not include endorsements for collection or deposit in the
ordinary course of business.  “Guarantee”
used as a verb has a corresponding meaning.


 


“Hedging Obligations” means the obligations of
any Person pursuant to any Interest Rate Agreement, Currency Agreement or
Commodity Agreement.


 


“Holder” means the Person in whose name a Note
is registered in the Note Register.


 


“Incur” means, with respect to any Indebtedness
or other obligation of any Person, to create, issue, incur (including by
conversion, exchange or otherwise), assume, Guarantee or otherwise become
liable in respect of such Indebtedness or other obligation on the balance sheet
of such Person (and “Incurrence,” “Incurred” and “Incurring” will have meanings
correlative to the preceding).


 


“Indebtedness” means with respect to any
Person, without duplication:


 


(1)           the principal amount (or, if less,
the accreted value) of all obligations of such Person for borrowed money;


 


(2)           the principal amount (or, if less,
the accreted value) of all obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments;


 


13





















 


(3)           all Capitalized Lease Obligations of
such Person;


 


(4)           all obligations of such Person issued
or assumed as the deferred purchase price of property, all conditional sale
obligations and all obligations under any title retention agreement (but
excluding trade accounts payable and other accrued liabilities arising in the
ordinary course of business that are not overdue by 180 days or more or are
being contested in good faith by appropriate proceedings promptly instituted
and diligently conducted);


 


(5)           all letters of credit, banker’s
acceptances or similar credit transactions, including reimbursement obligations
in respect thereof;


 


(6)           Guarantees and other contingent
obligations of such Person in respect of Indebtedness referred to in clauses (1) through
(5) above and clauses (8) through (10) below;


 


(7)           all Indebtedness of any other Person
of the type referred to in clauses (1) through (6) which is
secured by any Lien on any property or asset of such Person, the amount of such
Indebtedness being deemed to be the lesser of the Fair Market Value of such
property or asset or the amount of the Indebtedness so secured;


 


(8)           all obligations under Hedging
Obligations of such Person;


 


(9)           to the extent not otherwise included
in this definition, the Receivables Transaction Amount outstanding relating to
any Receivables Transaction; and


 


(10)         all Disqualified Capital Stock issued
by such Person.


 


For the avoidance of doubt, the recognition and
acknowledgement by the Company or any Restricted Subsidiary of its obligation
to make payment of a trade payable arising in the ordinary course of business
to a bank following the sale and assignment thereof pursuant to the terms of Supplier
Factoring Facilities shall not be Indebtedness.


 


“Indenture” means this Indenture as amended or
supplemented from time to time, including the Exhibits hereto.


 


“Independent Financial Advisor” means an accounting firm, appraisal firm,
investment banking firm or consultant of internationally recognized standing
that is, in the judgment of the Company’s Board of Directors, qualified to
perform the task for which it has been engaged and which is independent in
connection with the relevant transaction.


 


“Intangible Assets” means with respect to any
Person all unamortized debt discount and expense, unamortized deferred charges,
goodwill, patents, trademarks, service marks, trade names, copyrights and all
other items which would be treated as intangibles on the consolidated balance
sheet of such Person prepared in accordance with GAAP.


 


“Interest Payment Date” means the stated due
date of an installment of interest on the Notes as specified in the Form of
Face of Note contained in Exhibit A.


 


“Interest Rate Agreement” of any Person means
any interest rate protection agreement (including, without limitation, interest
rate swaps, caps, floors, collars, derivative instruments and similar
agreements) and/or other types of hedging agreements designed to hedge interest
rate risk of such Person.


 


“Investment” means, with respect to any Person,
any:


 


(1)           direct or indirect loan, advance or
other extension of credit (including, without limitation, a Guarantee) to any
other Person,


 


14





















 


(2)           capital contribution to (by means of
any transfer of cash or other property to others or any payment for property or
services for the account or use of others) any other Person, or


 


(3)           any purchase or acquisition by such
Person of any Capital Stock, bonds, notes, debentures or other securities or
evidences of Indebtedness issued by, any other Person.


 


“Investment” will exclude accounts receivable or deposits
arising in the ordinary course of business. 
“Invest,” “Investing” and “Invested” will have corresponding meanings.


 


For purposes of Section 3.11, the Company
shall be deemed to have made an “Investment” in an Unrestricted Subsidiary at
the time of its Designation, which shall be valued at the Fair Market Value of
the sum of the net assets of such Unrestricted Subsidiary at the time of its
Designation and the amount of any Indebtedness of such Unrestricted Subsidiary
or owed to the Company or any Restricted Subsidiary immediately following such
Designation.  Any property transferred to
or from an Unrestricted Subsidiary shall be valued at its Fair Market Value at
the time of such transfer.  If the
Company or any Restricted Subsidiary sells or otherwise disposes of any Capital
Stock of a Restricted Subsidiary (including any issuance and sale of Capital
Stock by a Restricted Subsidiary) such that, after giving effect to any such
sale or disposition, such Restricted Subsidiary would cease to be a Subsidiary
of the Company, the Company shall be deemed to have made an Investment on the
date of any such sale or disposition equal to sum of the Fair Market Value of
the Capital Stock of such former Restricted Subsidiary held by the Company or
any Restricted Subsidiary immediately following such sale or other disposition
and the amount of any Indebtedness of such former Restricted Subsidiary
Guaranteed by the Company or any Restricted Subsidiary or owed to the Company
or any other Restricted Subsidiary immediately following such sale or other
disposition.


 


“Investment Grade Rating” means a rating equal
to or higher than (i) Baa3 (or the equivalent) by Moody’s or (ii) BBB-
(or the equivalent) by S&P, or, if either such entity ceases to rate the
Notes for reasons outside of the control of the Issuer, the equivalent
investment grade credit rating from any other Rating Agency.


 


“Investment Return” means, in respect of any
Investment (other than a Permitted Investment) made after the Issue Date by the
Company or any Restricted Subsidiary:


 


(1)           the proceeds in cash and the Fair
Market Value of property other than cash received by the Company or any
Restricted Subsidiary upon the sale, liquidation or repayment of such
Investment or, in the case of a Guarantee, the amount of the Guarantee upon the
unconditional release of the Company and its Restricted Subsidiaries in full,
less any payments previously made by the Company or any Restricted subsidiary
in respect of such Guarantee;


 


(2)           in the case of the Revocation of the
Designation of an Unrestricted Subsidiary, an amount equal to the lesser of:


 


(a)           the Company’s Investment in such
Unrestricted Subsidiary at the time of such Revocation;


 


(b)           that portion of the Fair Market Value
of the net assets of such Unrestricted Subsidiary at the time of Revocation
that is proportionate to the Company’s equity interest in such Unrestricted
Subsidiary at the time of Revocation; and


 


(c)           the Designation Amount with respect
to such Unrestricted Subsidiary upon its Designation which was treated as a
Restricted Payment; and


 


(3)           in the event the Company or any
Restricted Subsidiary makes any Investment in a Person that, as a result of or
in connection with such Investment, becomes a Restricted Subsidiary, the Fair
Market Value of the Investment of the Company and its Restricted Subsidiaries
in such Person,


 


in the case of each of (1), (2) and (3), up to
the amount of such Investment that was treated as a Restricted Payment under Section 3.11
less the amount of any previous Investment Return in respect of such
Investment.


 


15





















 


“Issue Date” means September 28, 2005.


 


“Issue Date Notes” means the US$250,000,000
aggregate principal amount of Notes originally issued on the Issue Date, and
any replacement Notes and Exchange Notes issued therefor in accordance with
this Indenture.


 


“Issue Date Registration Rights Agreement”
means the Registration Rights Agreement, dated as of September 28, 2005,
between the Company, the Subsidiary Guarantors and Credit Suisse First Boston
LLC and HSBC Securities (USA) Inc., as Initial Purchasers.


 


“Legal Defeasance” has the meaning assigned to
it in Section 8.1(b).


 


“Legal Holiday” has the meaning assigned to it
in Section 11.7.


 


“Lien” means any lien, mortgage, deed of trust,
pledge, security interest, charge or encumbrance of any kind (including any
conditional sale or other title retention agreement, any lease in the nature
thereof and any agreement to give any security interest); provided that the lessee in respect of a
Capitalized Lease Obligation or Sale and Leaseback Transaction will be deemed
to have Incurred a Lien on the property leased thereunder.


 


“Luxembourg” means the Grand Duchy of
Luxembourg.


 


“Luxembourg Paying Agent” means The Bank of New
York (Luxembourg) S.A. until such party resigns or is removed by the Company
from such role, provided that, if
such party is replaced by a successor in accordance with the terms of this
Indenture, “Luxembourg Paying Agent” shall thereafter mean such successor.


 


“Moody’s” means Moody’s Investors Service, Inc.
and its successors and assigns.


 


“Maturity Date” means September 28, 2015.


 


“Net Cash Proceeds” means, with respect to any
Asset Sale, the proceeds in the form of cash or Cash Equivalents, including
payments in respect of deferred payment obligations when received in the form
of cash or Cash Equivalents received by the Company or any of its Restricted
Subsidiaries from such Asset Sale, net of:


 


(1)           reasonable out-of-pocket expenses and
fees relating to such Asset Sale (including, without limitation, legal,
accounting and investment banking fees and sales commissions);


 


(2)           taxes paid or payable in respect of
such Asset Sale after taking into account any reduction in consolidated tax
liability due to available tax credits or deductions and any tax sharing
arrangements;


 


(3)           repayment of Indebtedness secured by
a Lien permitted under this Indenture that is required to be repaid in
connection with such Asset Sale; and


 


(4)           appropriate amounts to be provided by
the Company or any Restricted Subsidiary, as the case may be, as a reserve, in
accordance with GAAP, against any liabilities associated with such Asset Sale
and retained by the Company or any Restricted Subsidiary, as the case may be,
after such Asset Sale, including, without limitation, pension and other
post-employment benefit liabilities, liabilities related to environmental
matters and liabilities under any indemnification obligations associated with
such Asset Sale, but excluding any reserves with respect to Indebtedness.


 


“Non-Recourse Indebtedness” with respect to any
Person means Indebtedness of such Person for which (1) the sole legal
recourse for collection of principal and interest on such Indebtedness is
against the specific property identified in the instruments evidencing or
securing such Indebtedness and such property was acquired with the proceeds of
such Indebtedness or such Indebtedness was incurred within 365 days after the
acquisition or construction of such property and (2) no other assets of
such Person may be realized upon in collection of principal or interest on such
Indebtedness.


 


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“Non-U.S. Person” means a person who is not a
U.S. person, as defined in Regulation S.


 


“Note Custodian” means the custodian with
respect to any Global Note appointed by DTC, or any successor Person thereto,
and shall initially be the Trustee.


 


“Note Guarantee” means the guarantee of the
Company’s Obligations under this Indenture and the Notes by a Restricted
Subsidiary pursuant to Article X.


 


“Note Register” has the meaning assigned to it
in Section 2.3(a).


 


“Notes” means any of the Company’s 7.5% Senior
Guaranteed Notes due September 28, 2015 issued and authenticated pursuant
to this Indenture.


 


“Obligations” means, with respect to any
Indebtedness, any principal, interest (including, without limitation, Post-Petition
Interest), penalties, fees, indemnifications, reimbursements, damages, and
other liabilities payable under the documentation governing such Indebtedness,
including in the case of the Notes and the Note Guarantees, this Indenture.


 


“Officer” means, when used in connection with
any action to be taken by the Company or a Subsidiary Guarantor, as the case
may be, the Chairman of the Board, the Chief Executive Officer, the President,
the Chief Financial Officer, any Vice President, the Treasurer, the Controller
or the Secretary of the Company or such Subsidiary Guarantor, as the case may
be.


 


“Officers’ Certificate” means, when used in
connection with any action to be taken by the Company or a Subsidiary
Guarantor, as the case may be, a certificate signed by two Officers or by an
Officer and either an Assistant Treasurer or an Assistant Secretary of the
Company or such Subsidiary Guarantor, as the case may be and delivered to the
Trustee.


 


“Opinion of Counsel” means a written opinion of counsel, who may be an employee
of or counsel for the Company (except as otherwise provided in this Indenture)
and which opinion shall be reasonably acceptable to the Trustee.


 


“Outstanding” means, as of the date of
determination, all Notes theretofore authenticated and delivered under this
Indenture, except:


 


(i)            Notes theretofore canceled by the
Trustee or delivered to the Trustee for cancellation;


 


(ii)           Notes, or portions thereof, for the
payment, redemption or, in the case of an Asset Sale Offer or Change of Control
Offer, purchase of which money in the necessary amount has been theretofor
deposited with the Trustee or any Paying Agent (other than the Company, a
Subsidiary Guarantor or an Affiliate of the Company) in trust or set aside and
segregated in trust by the Company, a Subsidiary Guarantor or an Affiliate of
the Company (if the Company, a Subsidiary Guarantor or such Affiliate of the
Company is acting as Paying Agent) for the Holders of such Notes; provided that, if Notes (or portions
thereof) are to be redeemed or purchased, notice of such redemption or purchase
has been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;


 


(iii)          Notes which have been surrendered
pursuant to Section 2.9 or in exchange for or in lieu of which
other Notes have been authenticated and delivered pursuant to this Indenture,
other than any such Notes in respect of which there shall have been presented
to the Trustee proof satisfactory to it that such Notes are held by a bona fide purchaser in whose hands such Notes are
valid obligations of the Company; and


 


(iv)          solely to the extent provided in Article VIII,
Notes which are subject to Legal Defeasance or Covenant Defeasance as provided
in Article VIII;


 


17





















 


provided, however, that in determining whether the Holders
of the requisite aggregate principal amount of the Outstanding Notes have given
any request, demand, authorization, direction, notice, consent or waiver
hereunder, Notes owned by the Company or any other obligor upon the Notes or
any Affiliate of the Company or of such other obligor shall be disregarded and
deemed not to be Outstanding, except that, in determining whether the Trustee
shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Notes which a Trust Officer of the
Trustee actually knows to be so owned shall be so disregarded.  Notes so owned which have been pledged in
good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee’s right so to act with respect to such
Notes and that the pledgee is not the Company or any other obligor upon the
Notes or any Affiliate of the Company or of such other obligor.


 


“Paying Agent” has the meaning assigned to it
in Section 2.3(a).


 


“Permitted Acquisition Indebtedness” means
Indebtedness of the Company or any of its Restricted Subsidiaries to the extent
such Indebtedness was Indebtedness of (i) a Subsidiary prior to the date
on which such Subsidiary became a Restricted Subsidiary or (ii) a Person
that was merged or amalgamated into the Company or a Restricted Subsidiary, provided that on the date such Subsidiary
became a Restricted Subsidiary or the date such Person was merged and
amalgamated into the Company or a Restricted Subsidiary, as applicable, after
giving pro forma effect thereto, (a) the Company, would be permitted to
incur at least US$1.00 of additional Indebtedness pursuant to Section 3.9(a),
or (b) the Consolidated Fixed Charge Coverage Ratio of the Company and the
Restricted Subsidiaries would be greater than the Consolidated Fixed Charge
Coverage Ratio immediately prior to such transaction.


 


“Permitted Business” means the business or
businesses conducted by the Company and its Restricted Subsidiaries as of the
Issue Date and any business ancillary or complementary thereto.


 


“Permitted Holders” means (i) any member
of the Board of Directors of the Company on the Issue Date, (ii) a parent,
brother or sister of any of the individuals named in clause (i), (iii) the
spouse or a former spouse of any individual named in clause (i) or
(ii), (iv) the lineal descendants of any person named in clauses (i) through
(iii) and the spouse or a former spouse of any such lineal descendant, (v) the
estate or any guardian, custodian or other legal representative of any
individual named in clauses (i) through (iv), (vi) any trust
established principally for the benefit of any one or more of the individuals
named in clauses (i) through (v), and (vii) any Person in a
majority of the equity interests are owned, directly or indirectly, by any one
or more of the Persons named in clauses (i) through (vi).


 


“Permitted Indebtedness” has the meaning set
forth in Section 3.9.


 


“Permitted Investments” means:


 


(1)           Investments by the Company or any
Restricted Subsidiary in any Person that is, or that result in any Person
becoming, immediately after such Investment, a Restricted Subsidiary or
constituting a merger or consolidation of such Person into the Company or with
or into a Restricted Subsidiary, except for a Guarantee of Indebtedness of a
Restricted Subsidiary that is not a Subsidiary Guarantor;


 


(2)           Investments by any Restricted
Subsidiary in the Company;


 


(3)           Investments in cash and Cash
Equivalents;


 


(4)           any extension, modification or
renewal of any Investments existing as of the Issue Date (but not Investments
involving additional advances, contributions or other investments of cash or
property or other increases thereof, other than as a result of the accrual or
accretion of interest or original issue discount or payment-in-kind pursuant to
the terms of such Investment as of the Issue Date);


 


(5)           Investments permitted pursuant to Section 3.17(b)(2) and
Section 3.17(b)(5);


 


18





















 


(6)           Investments received as a result of
the bankruptcy or reorganization of any Person or taken in settlement of or
other resolution of claims or disputes, and, in each case, extensions,
modifications and renewals thereof;


 


(7)           Investments made by the Company or
its Restricted Subsidiaries as a result of non-cash consideration permitted to
be received in connection with an Asset Sale under Section 3.12.


 


(8)           Investments in the form of Hedging
Obligations permitted under Section 3.9(b)(5);


 


(9)           Investments in a Person engaged in a
Permitted Business not to exceed 10% of Consolidated Tangible Assets of the
Company and its Restricted Subsidiaries at any one time outstanding;


 


(10)         receivables owing to the Company or any
Restricted Subsidiary if created or acquired in the ordinary course of business
and payable or dischargeable in accordance with customary trade terms;


 


(11)         payroll, travel, entertainment,
relocation and similar advances to cover matters that are expected at the time
of such advances ultimately to be treated as expenses for accounting purposes
and that are made in the ordinary course of business;


 


(12)         loans or advances to employees made in
the ordinary course of business consistent with past practices of the Company
or such Restricted Subsidiary;


 


(13)         cash deposits with banks made in the
ordinary course of business of the Company and its Restricted Subsidiaries,
consistent with past practice, to secure payment of trade payables under
Supplier Factoring Facilities;


 


(14)         Investments in any Person to the extent
such Investments consist of prepaid expenses, negotiable instruments held for
collection and lease, utility and workers’ compensation, performance and other
similar deposits made in the ordinary course of business by the Company or any
Restricted Subsidiary;


 


(15)         Investments in a Receivables Entity in
connection with a Receivables Transaction; provided
that such Investment in any such Person is in the form of any equity interest
or interests in receivables and related assets generated by the Company or any
Restricted Subsidiary and transferred to such Person in connection with a
Receivables Transaction; and


 


(16)         any receivables or loans taken by the
Company or its Restricted Subsidiaries in connection with the sale of homes,
land, amenities and other improvements in the ordinary course of business
consistent with past practice.


 


provided, however,
that with respect to any Investment, the Company may, in its sole discretion,
allocate all or any portion of any Investment and later re-allocate all or any
portion of any Investment to, one or more of the above clauses (1) through
(16) so that the entire Investment would be Permitted Investment.


 


“Permitted Liens” means any of the following:


 


(1)           statutory Liens of landlords and
Liens of carriers, warehousemen, mechanics, suppliers, materialmen, repairmen
and other Liens imposed by law incurred in the ordinary course of business for
sums not yet delinquent or being contested in good faith;


 


(2)           Liens Incurred or deposits made in
the ordinary course of business in connection with workers’ compensation,
unemployment insurance and other types of social security, including any Lien
securing letters of credit issued in the ordinary course of business consistent
with past practice in connection therewith, or to secure the performance of
tenders, statutory obligations, surety and appeal bonds, bids, leases,
government performance and return-of-money bonds and other similar obligations
(exclusive of obligations for the payment of borrowed money);


 


19





















 


(3)           Liens upon specific items of
inventory or other goods and proceeds of any Person securing such Person’s
obligations in respect of bankers’ acceptances issued or created for the
account of such Person to facilitate the purchase, shipment or storage of such
inventory or other goods;


 


(4)           Liens securing reimbursement
obligations with respect to commercial letters of credit which encumber
documents and other property relating to such letters of credit and products
and proceeds thereof;


 


(5)           Liens encumbering deposits made to
secure obligations arising from statutory, regulatory, contractual, or warranty
requirements of the Company or a Restricted Subsidiary, including rights of
offset and set-off;


 


(6)           Liens securing Hedging Obligations
that relate to Indebtedness that is Incurred in accordance with Section 3.9
and that are secured by the same assets as secure such Hedging Obligations;


 


(7)           Liens existing on the Issue Date and
Liens to secure any Refinancing Indebtedness which is Incurred to Refinance any
Indebtedness below which has been secured by a Lien permitted under Section 3.16
(other than pursuant to clauses (9) or (10) below) and which
Indebtedness has been Incurred in accordance with Section 3.9; provided, that such new Liens:


 


(a)           are no less favorable to the Holders
of Notes and are not more favorable to the lienholders with respect to such
Liens than the Liens in respect of the Indebtedness being Refinanced and


 


(b)           do not extend to any property or
assets other than the property or assets securing the Indebtedness Refinanced
by such Refinancing Indebtedness;


 


(8)           Liens securing Acquired Indebtedness
Incurred in accordance with Section 3.9 not incurred in connection
with, or in anticipation or contemplation of, the relevant acquisition, merger
or consolidation; provided, that


 


(a)           such Liens secured such Acquired
Indebtedness at the time of and prior to the Incurrence of such Acquired
Indebtedness by the Company or a Restricted Subsidiary and were not granted in
connection with, or in anticipation of the Incurrence of such Acquired
Indebtedness by the Company or a Restricted Subsidiary and


 


(b)           such Liens do not extend to or cover
any property of the Company or any Restricted Subsidiary other than the
property that secured the Acquired Indebtedness prior to the time such
Indebtedness became Acquired Indebtedness of the Company or a Restricted
Subsidiary and are no more favorable to the lienholders than the Liens securing
the Acquired Indebtedness prior to the Incurrence of such Acquired Indebtedness
by the Company or a Restricted Subsidiary;


 


(9)           purchase money Liens securing
Purchase Money Indebtedness or Capitalized Lease Obligations Incurred to
finance the acquisition or leasing of property of the Company or a Restricted
Subsidiary used in a Permitted Business; provided,
that:


 


(a)           the related Purchase Money
Indebtedness does not exceed the cost of such property and shall not be secured
by any property of the Company or any Restricted Subsidiary other than the
property so acquired, and


 


(b)           the Lien securing such Indebtedness
will be created within 365 days of such acquisition;


 


(10)         Liens securing an amount of
Indebtedness under Credit Facilities outstanding at any one time not to exceed
the greater of (x) US$100 million and (y) 10% of the Consolidated Tangible
Assets of the Company at such time;


 


20





















 


(11)         any pledge or deposit of cash or
property in conjunction with obtaining surety and performance bonds and letters
of credit required to engage in constructing on-site and off-site improvements
required by municipalities or other governmental authorities in the ordinary
course of business;


 


(12)         Liens in favor of customs and revenue
authorities arising as a matter of law to secure payment of customs duties in
connection with the importation of goods;


 


(13)         Liens encumbering customary initial
deposits and margin deposits, and other Liens that are customary in the
industry and incurred in the ordinary course of business securing Indebtedness
under Hedging Obligation and forward contracts, options, futures contracts,
futures options or similar agreements or arrangement designed to protect the
Company and its Restricted Subsidiaries from fluctuations in the price of
commodities;


 


(14)         Liens for taxes, assessments or
governmental charges or claims that are not yet delinquent or that are being
contested in good faith by appropriate proceedings promptly instituted and
diligently concluded; provided
that any reserve or other appropriate provision as is required in conformity
with GAAP has been made therefor;


 


(15)         licenses of intellectual property in
the ordinary course of business;


 


(16)         Liens to secure a defeasance trust;


 


(17)         easements, rights of way, zoning and
similar restrictions, reservations, restrictions or encumbrances in respect of
real property or title defects that were not incurred in connection with
Indebtedness and that do not in the aggregate materially adversely affect the
value of said properties (as such properties are used by the Company or its
Restricted Subsidiaries) or materially impair their use in the operation of the
business of the Company and its Restricted Subsidiaries;


 


(18)         Liens arising from precautionary
Uniform Commercial Code financing statement filings regarding operating
leases entered into by the Company or any of its Restricted Subsidiaries in the
ordinary course of business;


 


(19)         judgment Liens not giving rise to an
Event of Default so long as any appropriate legal proceedings that may have
been duly initiated for the review of such judgment shall not have been finally
terminated or the period within which such legal proceedings may be initiated
shall not have expired;


 


(20)         Liens on Capital Stock of an
Unrestricted Subsidiary that secure Indebtedness or other obligations of such
Unrestricted Subsidiary; or


 


(21)         Liens on accounts receivable or related
assets incurred in connection with a Receivables Transaction.


 


“Person” means an individual, partnership,
limited partnership, corporation, company, limited liability company,
unincorporated organization, trust or joint venture, or a governmental agency
or political subdivision thereof.


 


“Post-Petition Interest” means all interest
accrued or accruing after the commencement of any insolvency or liquidation
proceeding (and interest that would accrue but for the commencement of any
insolvency or liquidation proceeding) in accordance with and at the contract
rate (including, without limitation, any rate applicable upon default)
specified in the agreement or instrument creating, evidencing or governing any
Indebtedness, whether or not, pursuant to applicable law or otherwise, the
claim for such interest is allowed as a claim in such insolvency or liquidation
proceeding.


 


“Preferred Stock”
of any Person means any Capital Stock of such Person that has preferential
rights over any other Capital Stock of such Person with respect to dividends,
distributions or redemptions or upon liquidation.


 


“Private Placement Legend” has the meaning
assigned to it in Section 2.7(b).


 


21





















 


 “Purchase
Money Indebtedness” means Indebtedness Incurred for the purpose of
financing all or any part of the purchase price, or other cost of construction
or improvement of any property; provided,
that the aggregate principal amount of such Indebtedness does not exceed the
lesser of the Fair Market Value of such property or such purchase price or
cost, including any Refinancing of such Indebtedness that does not increase the
aggregate principal amount (or accreted amount, if less) thereof as of the date
of Refinancing.


 


“QIB” means any “qualified institutional buyer”
(as defined in Rule 144A).


 


“Qualified Capital Stock” means any Capital
Stock that is not Disqualified Capital Stock and any warrants, rights or
options to purchase or acquire Capital Stock that is not Disqualified Capital
Stock that are not convertible into or exchangeable into Disqualified Capital
Stock.


 


“Rating Agencies” means S&P and Moody’s.


 


“Record Date” has the meaning assigned to it in
the Form of Face of Note contained in Exhibit A.


 


“Receivables Entity” means a Person in which
the Company or any Restricted Subsidiary makes an Investment and:


 


(1)           to which the Company or any
Restricted Subsidiary transfers receivables and related assets in connection
with a Receivables Transaction;


 


(2)           which engages in no activities other
than in connection with the Receivables Transaction;


 


(3)           no portion of the Indebtedness or any
other obligations (contingent or otherwise) of which:


 


(a)           is guaranteed by the Company or any
Restricted Subsidiary (excluding guarantees of Obligations (other than the
principal of, and interest on, Indebtedness) pursuant to Standard
Securitization Undertakings);


 


(b)           is recourse to or obligates the
Company or any Restricted Subsidiary in any way other than pursuant to Standard
Securitization Undertakings; or


 


(c)           subjects any property or asset of the
Company or any Restricted Subsidiary, directly or indirectly, contingently or
otherwise, to the satisfaction thereof, other than pursuant to Standard
Securitization Undertakings;


 


(4)           with which neither the Company nor
any Restricted Subsidiary has any material contract, agreement, arrangement or
understanding (except in connection with a Receivables Transaction) other than
on terms no less favorable to the Company or such Restricted Subsidiary than
those that might be obtained at the time from Persons that are not Affiliates
of the Company, other than fees payable in the ordinary course of business in
connection with servicing receivables; and


 


(5)           to which neither the Company nor any
Restricted Subsidiary has any obligation to maintain or preserve such entity’s
financial condition or cause such entity to achieve certain levels of operating
results.


 


“Receivables Transaction” means any
securitization, factoring, discounting or similar financing transaction or
series of transactions that may be entered into by the Company or any of its
Restricted Subsidiaries in the ordinary course of business pursuant to which
the Company or any of its Restricted Subsidiaries may sell, convey or otherwise
transfer to any Person (including a Receivables Entity), or may grant a
security interest in, any receivables (whether now existing or arising in the
future) of the Company or any of its Restricted Subsidiaries, and any assets
related thereto, including all collateral securing such receivables, all
contracts and all guarantees or other obligations in respect of such
receivables, the proceeds of such receivables and other assets which are
customarily transferred, or in respect of which security interests are
customarily granted, in connection with securitization, factoring or
discounting involving receivables.


 


22





















 


“Receivables Transaction Amount” means the
amount of obligations outstanding under the legal documents entered into as
part of a Receivables Transaction on any date of determination that would be
characterized as principal if such Receivables Transaction were structured as a
secured lending transaction rather than a purchase.


 


“Redemption Date” means, with respect to any
redemption of Notes, the date fixed for such redemption pursuant to this
Indenture and the Notes.


 


“Refinance” means, in respect of any
Indebtedness, to issue any Indebtedness in exchange for or to refinance,
replace, defease or refund such Indebtedness in whole or in part.  “Refinanced” and “Refinancing” will have
correlative meanings.


 


“Refinancing Indebtedness” means Indebtedness
of the Company or any Restricted Subsidiary issued to Refinance any other
Indebtedness of the Company or a Restricted Subsidiary so long as:


 


(1)           the aggregate principal amount (or
initial accreted value, if applicable) of such new Indebtedness as of the date of
such proposed Refinancing does not exceed the aggregate principal amount (or
initial accreted value, if applicable) of the Indebtedness being Refinanced
(plus the amount of any premium required to be paid under the terms of the
instrument governing such Indebtedness and the amount of reasonable expenses
incurred by the Company in connection with such Refinancing);


 


(2)           such new Indebtedness has:


 


(a)           a Weighted Average Life to Maturity
that is equal to or greater than the Weighted Average Life to Maturity of the
Indebtedness being Refinanced, and


 


(b)           a final maturity that is equal to or
later than the final maturity of the Indebtedness being Refinanced; and


 


(3)           if the Indebtedness being Refinanced
is:


 


(a)           Indebtedness of the Company, then
such Refinancing Indebtedness will be Indebtedness of the Company and/or a
Subsidiary Guarantor,


 


(b)           Indebtedness of a Subsidiary
Guarantor, then such Refinancing Indebtedness will be Indebtedness of the
Company and/or such Subsidiary Guarantor, and


 


(c)           Subordinated Indebtedness, then such
Refinancing Indebtedness shall be subordinate to the Notes or the relevant Note
Guarantee, if applicable, at least to the same extent and in the same manner as
the Indebtedness being Refinanced.


 


“Registered Exchange Offer” means an exchange
offer by the Company registered under the Securities Act pursuant to which
Notes originally issued pursuant to an exemption from registration under the
Securities Act are exchanged for Notes of like principal amount not bearing the
Private Placement Legend.


 


“Registrar” has the meaning assigned to it in Section 2.3(a).


 


“Registration Rights Agreement” means any
registration rights agreement between the Company, the Subsidiary Guarantors
and one or more investment banks acting as initial purchasers in connection
with any issuance of Notes under this Indenture, including the Issue Date
Registration Rights Agreement.


 


“Registration Statement” means an effective
Exchange Offer Registration Statement or Shelf Registration Statement.


 


23


















 


“Regulation S” means Regulation S
under the Securities Act or any successor regulation.


 


“Regulation S Global Note” has the meaning
assigned to it in Section 2.1(e).


 


“Representative” means any trustee, agent or
representative (if any) for an issue of Senior Indebtedness of the Company.


 


“Resale Restriction Termination Date” means,
for any Restricted Note (or beneficial interest therein), two years (or such
other period specified in Rule 144(k)) from the Issue Date or, if any
Additional Notes that are Restricted Notes have been issued before the Resale
Registration Termination Date for any Restricted Notes, from the latest such
original issue date of such Additional Notes.


 


“Restricted Note” means any Issue Date Note (or
beneficial interest therein) or any Additional Note (or beneficial interest
therein) not originally issued and sold pursuant to an effective registration
statement under the Securities Act or any Exchange Note, until such time as:


 


(i)            such Issue Date Note (or beneficial
interest therein) or Additional Note (or beneficial interest therein) has been
exchanged for a corresponding Exchange Note pursuant to an Exchange Offer
Registration Statement or transferred pursuant to a Shelf Registration
Statement;


 


(ii)           the Resale Restriction Termination Date
therefor has passed;


 


(iii)          such Note is a Regulation S
Global Note and the Distribution Compliance Period therefor has terminated; or


 


(iv)          the Private Placement Legend therefor
has otherwise been removed pursuant to Section 2.8(d) or, in
the case of a beneficial interest in a Global Note, such beneficial interest
has been exchanged for an interest in a Global Note not bearing a Private
Placement Legend.


 


“Restricted Payment” has the meaning set forth
in Section 3.11(a).


 


“Restricted Subsidiary”
means any Subsidiary of the Company, which, at the time of determination, is
not an Unrestricted Subsidiary.


 


“Revocation” has
the meaning set forth under Section 3.13(b).


 


“Rule 144” means Rule 144 under the
Securities Act (or any successor rule).


 


“Rule 144A” means Rule 144A under the
Securities Act (or any successor rule).


 


“Rule 144A Global Note” has the meaning
assigned to it in Section 2.1(d).


 


“S&P” means Standard & Poor’s
Ratings Services and its successors and assigns.


 


“Sale and Leaseback Transaction” means any
direct or indirect arrangement with any Person or to which any such Person is a
party providing for the leasing to the Company or a Restricted Subsidiary of
any property, whether owned by the Company or any Restricted Subsidiary at the
Issue Date or later acquired, which has been or is to be sold or transferred by
the Company or such Restricted Subsidiary to such Person or to any other Person
by whom funds have been or are to be advanced on the security of such Property.


 


“SEC” means the Securities and Exchange
Commission.


 


“Securities Act” means the Securities Act of
1933, as amended.


 


24





















 


“Senior Indebtedness” means the Notes and the
Note Guarantees and any other Indebtedness of the Company or any Subsidiary
Guarantor that ranks equal in right of payment with the Notes or the relevant
Note Guarantee, as the case may be.


 


“Shelf Registration Statement” shall have the
meaning assigned to such term in the Issue Date Registration Rights Agreement
and any other Registration Rights Agreement.


 


“Significant Subsidiary” means a Subsidiary of
the Company constituting a “Significant Subsidiary” of the Company in
accordance with Rule 1-02(w) of Regulation S-X under the Securities
Act in effect on the date hereof.


 


“Special Record Date” has the meaning assigned
to it in Section 2.12(a).


 


“Standard Securitization Undertakings” means
representations, warranties, covenants and indemnities entered into by the
Company or any Restricted Subsidiary, which are reasonably customary in
securitization of receivables transactions.


 


“Stated Maturity” means, with respect to any
security, the date specified in such security as the fixed date on which the
final payment of principal of such security is due and payable, including
pursuant to any mandatory redemption provision (but excluding any provision
providing for the repurchase of such security at the option of the holder
thereof upon the happening of any contingency unless such contingency has
occurred).


 


“Subordinated Indebtedness” means, with respect
to the Company or any Subsidiary Guarantor, any Indebtedness of the Company or
such Subsidiary Guarantor, as the case may be which is expressly subordinated
in right of payment to the Notes or the relevant Note Guarantee, as the case
may be.


 


“Subsidiary” means,
with respect to any Person, any other Person of which such Person owns,
directly or indirectly, more than 50% of the voting power of the other Person’s
outstanding Voting Stock.


 


“Subsidiary Guarantor” means any Restricted
Subsidiary which provides a Note Guarantee pursuant to this Indenture until
such time as its Note Guarantee is released in accordance with this Indenture.


 


“Supplier Factoring Facilities” means supplier
factoring facilities established by Mexican banks pursuant to (i) the
Convenio Denominado Cadenas Productivas Para el Desarollo de Proveedores Por
Medios Electrónicos or (ii) the AAA Homex Trust, Nacional Financiera,
S.N.C., as trustee, established on May 12, 2003, in each case as in effect
on the Issue Date and as amended from time to time on terms similar to those in
effect on the Issue Date, which provide for the sale and assignment from time
to time by suppliers on a discounted basis of then existing trade payables of
the Company and its Restricted Subsidiaries, and any similar supplier factoring
facilities supplementing or replacing such existing facilities; provided that any funds disbursed under
such facilities shall be solely in consideration for the sale and assignment of
then existing trade payables of the Company and its Restricted Subsidiaries
generated in the ordinary course of business.


 


“Surviving Entity” has the meaning assigned to
it in Section 4.1(a).


 


“Taxes” has the meaning assigned to it in Section 3.21.


 


“Taxing Authority” has the meaning assigned to
it in Section 3.21.


 


“TIA” or “Trust Indenture Act” means the
Trust Indenture Act of 1939, as amended, as in effect on the date of this
Indenture (except as otherwise provided in this Indenture).


 


“Trustee” means the party named as such in the
introductory paragraph of this Indenture until a successor replaces it in
accordance with the terms of this Indenture and, thereafter, means the
successor.


 


25





















 


“Trust Officer” means, when used with respect
to the Trustee, any officer within the corporate trust department of the
Trustee, including any vice president, assistant vice president, assistant
secretary, assistant treasurer, trust officer or any other officer of the
Trustee who customarily performs functions similar to those performed by the
Persons who at the time shall be such officers, respectively, or to whom any
corporate trust matter is referred because of such person’s knowledge of and
familiarity with the particular subject and who shall have direct
responsibility for the administration of this Indenture.


 


“Unrestricted Subsidiary” means any Subsidiary
of the Company Designated as such pursuant to Section 3.13.  Any such Designation may be revoked by a
Board Resolution of the Company, subject to the provisions of Section 3.13.


 


“U.S. Government Obligations” means direct
obligations (or certificates representing an ownership interest in such
obligations) of the United States of America (including any agency or
instrumentality thereof) for the payment of which the full faith and credit of
the United States of America is pledged and which are not callable or
redeemable at the issuer’s option.


 


“U.S. Legal Tender” means such coin or currency
of the United States of America as at the time of payment shall be legal tender
for the payment of public and private debts.


 


“Voting Stock” with respect to any Person,
means securities of any class of Capital Stock of such Person entitling the
holders thereof (whether at all times or only so long as no senior class of
stock has voting power by reason of any contingency) to vote in the election of
members of the Board of Directors (or equivalent governing body) of such
Person.


 


“Weighted Average Life to Maturity” means, when
applied to any Indebtedness at any date, the number of years (calculated to the
nearest one-twelfth) obtained by dividing:


 


(1)           the then outstanding aggregate
principal amount or liquidation preference, as the case may be, of such
Indebtedness into


 


(2)           the sum of the products obtained by
multiplying:


 


(a)           the amount of each then remaining
installment, sinking fund, serial maturity or other required payment of
principal or liquidation preference, as the case may be, including payment at
final maturity, in respect thereof, by


 


(b)           the number of years (calculated to
the nearest one-twelfth) which will elapse between such date and the making of
such payment.


 


“Wholly-Owned Subsidiary” means, for any
Person, any Subsidiary (Restricted Subsidiary in the case of the Company) of
which all the outstanding Capital Stock (other than, in the case of a
Subsidiary not organized in the United States, directors’ qualifying shares or
an immaterial amount of shares required to be owned by other Persons pursuant
to applicable law) is owned by such Person or any other Person that satisfies
this definition in respect of such Person.


 


Section 1.2             Incorporation
by Reference of Trust Indenture Act. 
If any provision of this Indenture limits, qualifies or conflicts with
the duties that would be imposed by any of Sections 310 to 317 of the
TIA through operation of Section 318(c) thereof on any person if this
Indenture were qualified under the TIA, such imposed duties shall control.


 


“obligor” on the indenture securities means the
Company and any other obligor on the indenture securities.


 


26





















 


All other TIA terms used in this Indenture that are
defined by the TIA, defined in the TIA by reference to another statute or
defined by Rules or Regulations of the SEC have the meanings assigned to
them by such definitions.


 


Section 1.3             Rules of
Construction.  Unless the context
otherwise requires:


 


(1)     a term has the meaning assigned to it;


 


(2)           an accounting term not otherwise
defined has the meaning assigned to it in accordance with GAAP;


 


(3)           “or” is not exclusive;


 


(4)           “including” means including without
limitation;


 


(5)           words in the singular include the
plural and words in the plural include the singular;


 


(6)           references to the payment of
principal of the Notes shall include applicable premium, if any.


 


(7)           references to payments on the Notes
shall include Additional Amounts and amounts payable under any Registration
Rights Agreement, if any.


 


ARTICLE II


 


THE NOTES


 


Section 2.1             Form and
Dating.


 


(a)           The Issue Date Notes are being originally
offered and sold by the Company pursuant to a Purchase Agreement, dated as of September 21,
2005, between the Company, the Subsidiary Guarantors party hereto and Credit
Suisse First Boston LLC and HSBC Securities (USA) Inc.  The Notes will be issued in fully-registered
certificated form without coupon, and only in denominations of US$2,000 and
integral multiples of US$1,000 in excess thereof.  The Notes and the Trustee’s certificate of
authentication shall be substantially in the form of Exhibit A.


 


(b)           The terms and provisions of the
Notes, the form of which is in Exhibit A, shall constitute, and are
hereby expressly made, a part of this Indenture, and, to the extent applicable,
the Company, the Subsidiary Guarantors and the Trustee, by their execution and
delivery of this Indenture expressly agree to such terms and provisions and to
be bound thereby.  Except as otherwise
expressly permitted in this Indenture, all Notes shall be identical in all
respects.  Notwithstanding any
differences among them, all Notes issued under this Indenture shall vote and
consent together on all matters as one class.


 


(c)           The Notes may have notations, legends
or endorsements as specified in Section 2.7 or as otherwise
required by law, stock exchange rule or DTC rule or usage.  The Company and the Trustee shall approve the
form of the Notes and any notation, legend or endorsement on them.  Each Note shall be dated the date of its
authentication.


 


(d)           Notes originally offered and sold to
QIBs in reliance on Rule 144A will be issued in the form of one or more
permanent Global Notes (each, a “Rule 144A Global Note”).


 


27





















 


(e)           Notes originally offered and sold
outside the United States of America will be issued in the form of one or more
permanent Global Notes (each, a “Regulation S Global Note”).


 


Section 2.2             Execution
and Authentication.


 


(a)           Two Officers, one of whom shall be
the Chairman of the Board, the President, the Chief Executive Officer or the
Chief Financial Officer of the Company, shall sign the Notes for the Company by
manual or facsimile signature.  If an
Officer whose signature is on a Note no longer holds that office at the time
the Trustee authenticates the Note, the Note shall be valid nevertheless.


 


(b)           A Note shall not be valid until an
authorized signatory of the Trustee manually authenticates the Note.  The signature of the Trustee on a Note shall
be conclusive evidence that such Note has been duly and validly authenticated
and issued under this Indenture.


 


(c)           At any time and from time to time
after the execution and delivery of this Indenture, the Trustee shall
authenticate and make available for delivery Notes upon a written order of the
Company signed by two Officers or by an Officer and either an Assistant Treasurer
or an Assistant Secretary of the Company (the “Company Order”).  A Company Order shall specify the amount of
the Notes to be authenticated and the date on which the original issue of Notes
is to be authenticated.


 


(d)           The Trustee may appoint an agent (the
“Authenticating Agent”) reasonably acceptable to the Company to
authenticate the Notes.  Unless limited
by the terms of such appointment, any such Authenticating Agent may
authenticate Notes whenever the Trustee may do so.  Each reference in this Indenture to
authentication by the Trustee includes authentication by the Authenticating
Agent.


 


(e)           In case a Surviving Entity has
executed an indenture supplemental hereto with the Trustee pursuant to Article IV,
any of the Notes authenticated or delivered prior to such transaction may, from
time to time, at the request of the Surviving Entity, be exchanged for other
Notes executed in the name of the Surviving Entity with such changes in
phraseology and form as may be appropriate, but otherwise identical to the
Notes surrendered for such exchange and of like principal amount; and the
Trustee, upon Company Order of the Surviving Entity, shall authenticate and
deliver Notes as specified in such order for the purpose of such exchange.  If Notes shall at any time be authenticated
and delivered in any new name of a Surviving Entity pursuant to this Section 2.2
in exchange or substitution for or upon registration of transfer of any Notes,
such Surviving Entity, at the option of the Holders but without expense to them,
shall provide for the exchange of all Notes at the time Outstanding for Notes
authenticated and delivered in such new name.


 


Section 2.3             Registrar
and Paying Agent.


 


(a)           The Company shall maintain an office
or agency in the Borough of Manhattan, City of New York, and, so long as the
Notes are listed on the Luxembourg Stock Exchange and the rules of the
Luxembourg Stock Exchange so require, in Luxembourg, where Notes may be
presented or surrendered for registration of transfer or for exchange (the “Registrar”),
where Notes may be presented for payment (the “Paying Agent”) and for
the service of notices and demands to or upon the Company in respect of the
Notes and this Indenture.  The Registrar
shall keep a register of the Notes and of their transfer and exchange (the “Note
Register”).  The Company may have one
or more co-Registrars and one or more additional paying agents.  The term “Paying Agent” includes any
additional paying agent.


 


(b)           The Company shall enter into an
appropriate agency agreement with any Registrar, Paying Agent or co-Registrar
not a party to this Indenture, which shall incorporate the terms of the
TIA.  The agreement shall implement the
provisions of this Indenture that relate to such agent.  The Company shall notify the Trustee of the
name and address of each such agent.  If
the Company fails to maintain a Registrar or Paying Agent, the Trustee shall
act as such and shall be entitled to appropriate compensation therefor pursuant
to Section 7.7.  The Company
or any Subsidiary Guarantor may act as Paying Agent, Registrar, co-Registrar or
transfer agent.


 


28





















 


(c)           The Company initially appoints the
Corporate Trust Office as Registrar, Paying Agent and agent for service of
demands and notices in connection with the Notes and this Indenture, until such
time as another Person is appointed as such.


 


(d)           The Company may change the Paying
Agent and the Registrar without notice to Holders.


 


Section 2.4             Paying
Agent to Hold Money in Trust.  The
Company shall require each Paying Agent (other than the Trustee) to agree in
writing that such Paying Agent shall hold in trust for the benefit of Holders
or the Trustee all money held by such Paying Agent for the payment of principal
of or interest on the Notes and shall notify the Trustee in writing of any
Default by the Company or any Subsidiary Guarantor in making any such
payment.  If the Company or any
Subsidiary Guarantor or an Affiliate of the Company or any Subsidiary Guarantor
acts as Paying Agent, it shall segregate the money held by it as Paying Agent
and hold it as a separate trust fund. 
The Company at any time may require a Paying Agent (other than the
Trustee) to pay all money held by it to the Trustee and to account for any
funds disbursed by such Paying Agent. 
Upon complying with this Section 2.4, the Paying Agent (if
other than the Company or a Subsidiary Guarantor) shall have no further
liability for the money delivered to the Trustee.  Upon any proceeding under any Bankruptcy Law
with respect to the Company or any Subsidiary Guarantor or any Affiliate of the
Company or any Subsidiary Guarantor, if the Company, a Subsidiary Guarantor or
such Affiliate is then acting as Paying Agent, the Trustee shall replace the
Company, such Subsidiary Guarantor or such Affiliate as Paying Agent.


 


Section 2.5             Holder
Lists.  The Trustee shall preserve in
as current a form as is reasonably practicable the most recent list available
to it of the names and addresses of Holders. 
If the Trustee is not the Registrar, or to the extent otherwise required
under the TIA, the Company shall furnish to the Trustee, in writing at least
seven Business Days before each Interest Payment Date and at such other times
as the Trustee may request in writing, a list in such form and as of such date
as the Trustee may reasonably require of the names and addresses of Holders.


 


Section 2.6             Global
Note Provisions.


 


(a)           Each Global Note initially
shall:  (i) be registered in the
name of DTC or the nominee of DTC, (ii) be delivered to the Note
Custodian, and (iii) bear the appropriate legend, as set forth in Section 2.7
and Exhibit A.  Any Global
Note may be represented by more than one certificate.  The aggregate principal amount of each Global
Note may from time to time be increased or decreased by adjustments made on the
records of the Note Custodian, as provided in this Indenture.


 


(b)           Members of, or participants in, DTC (“Agent
Members”) shall have no rights under this Indenture with respect to any
Global Note held on their behalf by DTC or by the Note Custodian under such
Global Note, and DTC may be treated by the Company, the Trustee, the Paying
Agent and the Registrar and any of their agents as the absolute owner of such
Global Note for all purposes whatsoever. 
Notwithstanding the foregoing, nothing herein shall prevent the Company,
the Trustee, the Paying Agent or the Registrar or any of their agents from
giving effect to any written certification, proxy or other authorization
furnished by DTC or impair, as between DTC and its Agent Members, the operation
of customary practices of DTC governing the exercise of the rights of an owner
of a beneficial interest in any Global Note. 
The registered Holder of a Global Note may grant proxies and otherwise
authorize any person, including Agent Members and persons that may hold
interests through Agent Members, to take any action that a Holder is entitled
to take under this Indenture or the Notes.


 


(c)           Except as provided below, owners of
beneficial interests in Global Notes will not be entitled to receive
Certificated Notes.  Certificated Notes
shall be issued to all owners of beneficial interests in a Global Note in
exchange for such interests if:


 


(i)            DTC notifies the Company that it is
unwilling or unable to continue as depositary for such Global Note or DTC
ceases to be a clearing agency registered under the Exchange Act, at a time
when DTC is required to be so registered in order to act as depositary, and in
each case a successor depositary is not appointed by the Company within
90 days of such notice,


 


29





















 


(ii)           the Company executes and delivers to
the Trustee and Registrar an Officers’ Certificate stating that such Global
Note shall be so exchangeable, or


 


(iii)          an Event of Default has occurred and
is continuing and the Registrar has received a request from DTC.


 


In connection with the exchange of an entire Global
Note for Certificated Notes pursuant to this paragraph (c), such Global
Note shall be deemed to be surrendered to the Trustee for cancellation, and the
Company shall execute, and upon Company Order the Trustee shall authenticate
and deliver, to each beneficial owner identified by DTC in exchange for its
beneficial interest in such Global Note, an equal aggregate principal amount of
Certificated Notes of authorized denominations.


 


Section 2.7             Legends.


 


(a)           Each Global Note shall bear the
legend specified therefor in Exhibit A on the face thereof.


 


(b)           Each Restricted Note shall bear the
private placement legend specified therefor in Exhibit A on the
face thereof (the “Private Placement Legend”).


 


Section 2.8             Transfer
and Exchange.


 


(a)           The following provisions shall apply
with respect to any proposed transfer of an interest in a Rule 144A Global
Note that is a Restricted Note:  If (1) the
owner of a beneficial interest in a Rule 144A Global Note wishes to
transfer such interest (or portion thereof) to a Non-U.S. Person pursuant to
Regulation S and (2) such Non-U.S. Person wishes to hold its interest
in the Notes through a beneficial interest in the Regulation S Global
Note, (x) upon receipt by the Note Custodian and Registrar of:


 


(A)          instructions from the Holder of the Rule 144A
Global Note directing the Note Custodian and Registrar to credit or cause to be
credited a beneficial interest in the Regulation S Global Note equal to
the principal amount of the beneficial interest in the Rule 144A Global
Note to be transferred, and


 


(B)           a certificate in the form of Exhibit C
from the transferor,


 


and (y) subject to the rules and procedures
of DTC, the Note Custodian and Registrar shall increase the Regulation S
Global Note and decrease the Rule 144A Global Note by such amount in
accordance with the foregoing.


 


(b)           If the owner of an interest in a
Regulation S Global Note wishes to transfer such interest (or any portion
thereof) to a QIB pursuant to Rule 144A prior to the expiration of the
Distribution Compliance Period therefor, (x) upon receipt by the Note
Custodian and Registrar of:


 


(A)          instructions from the Holder of the
Regulation S Global Note directing the Note Custodian and Registrar to
credit or cause to be credited a beneficial interest in the Rule 144A
Global Note equal to the principal amount of the beneficial interest in the
Regulation S Global Note to be transferred, and


 


(B)           a certificate in the form of Exhibit B
duly executed by the transferor,


 


and (y) in accordance with the rules and
procedures of DTC, the Note Custodian and Registrar shall increase the Rule 144A
Global Note and decrease the Regulation S Global Note by such amount in
accordance with the foregoing.


 


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(c)           Other Transfers.  Any transfer of Restricted Notes not
described above (other than a transfer of a beneficial interest in a Global
Note that does not involve an exchange of such interest for a Certificated Note
or a beneficial interest in another Global Note, which must be effected in
accordance with applicable law and the rules and procedures of DTC, but is
not subject to any procedure required by this Indenture) shall be made only
upon receipt by the Registrar of such opinions of counsel, certificates and/or
other information reasonably required by and satisfactory to it in order to
ensure compliance with the Securities Act or in accordance with paragraph (d) of
this Section 2.8.


 


(d)           Use and Removal of Private
Placement Legends.  Upon the
transfer, exchange or replacement of Notes (or beneficial interests in a Global
Note) not bearing (or not required to bear upon such transfer, exchange or
replacement) a Private Placement Legend, the Note Custodian and Registrar shall
exchange such Notes (or beneficial interests) for beneficial interests in a
Global Note (or Certificated Notes if they have been issued pursuant to Section 2.6(c))
that does not bear a Private Placement Legend. 
Upon the transfer, exchange or replacement of Notes (or beneficial
interests in a Global Note) bearing a Private Placement Legend, the Note
Custodian and Registrar shall deliver only Notes (or beneficial interests in a
Global Note) that bear a Private Placement Legend unless:


 


(i)            such Notes (or beneficial interests)
are exchanged in a Registered Exchange Offer;


 


(ii)           such Notes (or beneficial interests)
are transferred pursuant to a Shelf Registration Statement;


 


(iii)          such Notes (or beneficial interests)
are transferred pursuant to Rule 144 upon delivery to the Registrar of a
certificate of the transferor in the form of Exhibit D and an
Opinion of Counsel reasonably satisfactory to the Registrar;


 


(iv)          such Notes (or beneficial interests)
are transferred, replaced or exchanged after the Resale Restriction Termination
Date therefor; or


 


(v)           in connection with such transfer,
exchange or replacement the Registrar shall have received an Opinion of Counsel
and other evidence reasonably satisfactory to it to the effect that neither
such Private Placement Legend nor the related restrictions on transfer are
required in order to maintain compliance with the provisions of the Securities
Act.


 


The Private Placement Legend on any Note shall be
removed at the request of the Holder on or after the Resale Restriction
Termination Date therefor.  The Holder of
a Global Note may exchange an interest therein for an equivalent interest in a
Global Note not bearing a Private Placement Legend (other than a Regulation S
Global Note) upon transfer of such interest pursuant to any of clauses (i) through (v) of
this paragraph (d).  The Company
shall deliver to the Trustee an Officers’ Certificate promptly upon
effectiveness, withdrawal or suspension of any Registration Statement.


 


(e)           Consolidation of Global Notes and
Exchange of Certificated Notes for Beneficial Interests in Global Notes.


 


(i)            If a Global Note not bearing a
Private Placement Legend (other than a Regulation S Global Note) is Outstanding
at the time of a Registered Exchange Offer, any interests in a Global Note
exchanged in such Registered Exchange Offer shall be exchanged for interests in
such Outstanding Global Note.


 


(ii)           Nothing in this Indenture shall
provide for the consolidation of any Notes with any other Notes to the extent
that they constitute, as determined pursuant to an Opinion of Counsel,
different classes of securities for U.S. federal income tax purposes.


 


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(f)            Retention of Documents.  The Registrar shall retain copies of all
letters, notices and other written communications received pursuant to this Article II.  The Company shall have the right to inspect
and make copies of all such letters, notices or other written communications at
any reasonable time upon the giving of reasonable written notice to the
Registrar.


 


(g)           Execution, Authentication of
Notes, etc.


 


(i)            Subject to the other provisions of
this Section 2.8, when Notes are presented to the Registrar or a
co-Registrar with a request to register the transfer of such Notes or to
exchange such Notes for an equal principal amount of Notes of other authorized
denominations, the Registrar or co-Registrar shall register the transfer or
make the exchange as requested if its requirements for such transaction are
met; provided that any Notes
presented or surrendered for registration of transfer or exchange shall be duly
endorsed or accompanied by a written instrument of transfer in form
satisfactory to the Registrar or co-Registrar, duly executed by the Holder
thereof or his attorney duly authorized in writing.  To permit registrations of transfers and
exchanges and subject to the other terms and conditions of this Article II,
the Company will execute and upon Company Order the Trustee will authenticate
Certificated Notes and Global Notes at the Registrar’s or co-Registrar’s
request.  In accordance with any Issue
Date Registration Rights Agreement, Company will execute and upon Company Order
the Trustee will authenticate Exchange Notes in exchange for Issue Date Notes.


 


(ii)           No service charge shall be made to a
Holder for any registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any transfer tax, assessments, or
similar governmental charge payable in connection therewith (other than any
such transfer taxes, assessments or similar governmental charges payable upon
exchange or transfer pursuant to a Registered Exchange Offer or to Section 3.8,
Section 3.12, Section 4.1 or Section 8.5.


 


(iii)          The Registrar or co-Registrar shall
not be required to register the transfer of or exchange of any Note for a
period beginning:  (1) 15 days
before the mailing of a notice of an offer to repurchase or redeem Notes and
ending at the close of business on the day of such mailing or (2) 15 days
before an Interest Payment Date and ending on such Interest Payment Date.


 


(iv)          Prior to the due presentation for
registration of transfer of any Note, the Company, the Trustee, the Paying
Agent, the Registrar or any co-Registrar may deem and treat the person in whose
name a Note is registered as the absolute owner of such Note for the purpose of
receiving payment of principal of and interest on such Note and for all other
purposes whatsoever, whether or not such Note is overdue, and none of the
Company, the Trustee, the Paying Agent, the Registrar or any co-Registrar shall
be affected by notice to the contrary.


 


(v)           All Notes issued upon any transfer or
exchange pursuant to the terms of this Indenture shall evidence the same debt
and shall be entitled to the same benefits under this Indenture as the Notes
surrendered upon such transfer or exchange.


 


(h)           No Obligation of the Trustee.


 


(i)            The Trustee shall have no
responsibility or obligation to any beneficial owner of an interest in a Global
Note, a member of, or a participant in, DTC or other Person with respect to the
accuracy of the records of DTC or its nominee or of any participant or member
thereof, with respect to any ownership interest in the Notes or with respect to
the delivery to any participant, member, beneficial owner or other Person
(other than DTC) of any notice (including any notice of redemption) or the
payment of any amount or delivery of any Notes (or other security or property)
under or with respect to such Notes.  All
notices and communications to be given to the Holders and all payments to be
made to Holders in respect of the Notes shall be given or made only to or upon
the order of the registered Holders (which shall be DTC or its nominee in the
case of a Global Note).  The rights of
beneficial owners in any Global Note shall be exercised only through DTC
subject to the applicable rules and procedures of DTC.  The Trustee may rely


 


32





















 


and shall be fully protected in relying upon
information furnished by DTC with respect to its members, participants and any
beneficial owners.


 


(ii)           The Trustee shall have no obligation
or duty to monitor, determine or inquire as to compliance with any restrictions
on transfer imposed under this Indenture or under applicable law with respect
to any transfer of any interest in any Note (including any transfers between or
among DTC participants, members or beneficial owners in any Global Note) other
than to require delivery of such certificates and other documentation or
evidence as are expressly required by, and to do so if and when expressly
required by, the terms of this Indenture, and to examine the same to determine
substantial compliance as to form with the express requirements hereof.


 


Section 2.9             Mutilated,
Destroyed, Lost or Stolen Notes.


 


(a)           If a mutilated Note is surrendered to
the Registrar or if the Holder of a Note claims that the Note has been lost,
destroyed or wrongfully taken, the Company shall execute and upon Company Order
the Trustee shall authenticate a replacement Note if the requirements of Section 8-405
of the Uniform Commercial Code are met and the Holder satisfies any other
reasonable requirements of the Trustee. 
If required by the Trustee or the Company, such Holder shall furnish an
affidavit of loss and indemnity bond sufficient in the judgment of the Company
and the Trustee to protect the Company, the Trustee, the Paying Agent, the
Registrar and any co-Registrar from any loss that any of them may suffer if a
Note is replaced, and, in the absence of notice to the Company or the Trustee
that such Note has been acquired by a protected purchaser, the Company shall
execute and upon Company Order the Trustee shall authenticate and make
available for delivery, in exchange for any such mutilated Note or in lieu of
any such destroyed, lost or stolen Note, a new Note of like tenor and principal
amount, bearing a number not contemporaneously Outstanding.


 


(b)           Upon the issuance of any new Note
under this Section 2.9, the Company may require the payment of a
sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and
expenses of the Trustee) in connection therewith.


 


(c)           Every new Note issued pursuant to
this Section 2.9 in exchange for any mutilated Note, or in lieu of
any destroyed, lost or stolen Note, shall constitute an original additional
contractual obligation of the Company, any Subsidiary Guarantor and any other
obligor upon the Notes, whether or not the mutilated, destroyed, lost or stolen
Note shall be at any time enforceable by anyone, and shall be entitled to all
benefits of this Indenture equally and proportionately with any and all other
Notes duly issued hereunder.


 


Section 2.10           Temporary
Notes.  Until definitive Notes are
ready for delivery, the Company may execute and upon Company Order the Trustee
will authenticate temporary Notes. 
Temporary Notes will be substantially in the form of definitive Notes
but may have variations that the Company considers appropriate for temporary
Notes.  Without unreasonable delay, the
Company will prepare and execute and upon Company Order the Trustee will
authenticate definitive Notes.  After the
preparation of definitive Notes, the temporary Notes will be exchangeable for
definitive Notes upon surrender of the temporary Notes at any office or agency
maintained by the Company for that purpose and such exchange shall be without
charge to the Holder.  Upon surrender for
cancellation of any one or more temporary Notes, the Company will execute and
upon Company Order the Trustee will authenticate and make available for
delivery in exchange therefor one or more definitive Notes representing an
equal principal amount of Notes.  Until
so exchanged, the Holder of temporary Notes shall in all respects be entitled
to the same benefits under this Indenture as a Holder of definitive Notes.


 


Section 2.11           Cancellation.  The Company at any time may deliver Notes to
the Trustee for cancellation.  The
Registrar and the Paying Agent shall forward to the Trustee any Notes
surrendered to them for registration of transfer, exchange or payment.  The Trustee and no one else shall cancel and
dispose of cancelled Notes in accordance with its policy of disposal or return
to the Company all Notes surrendered for registration of transfer, exchange,
payment or cancellation.  The Company may
not issue new Notes to replace Notes it has paid or delivered to the Trustee
for cancellation for any reason other than in connection with a transfer or
exchange upon Company Order.


 


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Section 2.12           Defaulted
Interest.  When any installment of
interest becomes Defaulted Interest, such installment shall forthwith cease to
be payable to the Holders in whose names the Notes were registered on the
Record Date applicable to such installment of interest.  Defaulted Interest (including any interest on
such Defaulted Interest) may be paid by the Company, at its election, as provided
in Section 2.12(a) or (b).


 


(a)           The Company may elect to make payment
of any Defaulted Interest (including any interest on such Defaulted Interest)
to the Holders in whose names the Notes are registered at the close of business
on a special record date for the payment of such Defaulted Interest (a “Special
Record Date”), which shall be fixed in the following manner.  The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid and the date of
the proposed payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the Holders
entitled to such Defaulted Interest as provided in this Section 2.12(a).  Thereupon the Trustee shall fix a Special
Record Date for the payment of such Defaulted Interest, which shall be not more
than 15 calendar days and not less than ten calendar days prior to the date of
the proposed payment and not less than ten calendar days after the receipt by
the Trustee of the notice of the proposed payment.  The Trustee shall promptly notify the Company
of such Special Record Date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be sent, first-class mail, postage prepaid, to
each Holder at such Holder’s address as it appears in the registration books of
the Registrar, not less than ten calendar days prior to such Special Record
Date.  Notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor having been mailed
as aforesaid, such Defaulted Interest shall be paid to the Holders in whose
names the Notes are registered at the close of business on such Special Record
Date and shall no longer be payable pursuant to Section 2.12(b).


 


(b)           Alternatively, the Company may make
payment of any Defaulted Interest (including any interest on such Defaulted
Interest) in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Notes may be listed, and upon such notice as
may be required by such exchange, if, after notice given by the Company to the
Trustee of the proposed payment pursuant to this Section 2.12(b),
such manner of payment shall be deemed practicable by the Trustee.


 


Section 2.13           Additional
Notes.  The Company may, from time to
time, subject to compliance with any other applicable provisions of this
Indenture, without the consent of the Holders, create and issue pursuant to
this Indenture Additional Notes having terms and conditions set forth in Exhibit A
identical to those of the other Outstanding Notes, except that Additional
Notes:


 


(i)            may have a different issue date from
other Outstanding Notes;


 


(ii)           may have a different amount of
interest payable on the first Interest Payment Date after issuance than is payable
on other Outstanding Notes;


 


(iii)          may have terms specified in the
Additional Note Board Resolution or Additional Note Supplemental Indenture for
such Additional Notes making appropriate adjustments to this Article II
and Exhibit A (and related definitions) applicable to such
Additional Notes in order to conform to and ensure compliance with the
Securities Act (or other applicable securities laws) and any registration
rights or similar agreement applicable to such Additional Notes, which are not
adverse in any material respect to the Holder of any Outstanding Notes (other
than such Additional Notes); and


 


(iv)          may be entitled to liquidated damages
as provided in Section 2.14 not applicable to other Outstanding
Notes and may not be entitled to such liquidated damages applicable to other
Outstanding Notes.


 


provided, that no
adjustment pursuant to this Section 2.13 shall cause such
Additional Notes to constitute, a different class of securities than the Issue
Date Notes for U.S. federal income tax purposes except for Additional Notes
that have a separate CUSIP number from other Outstanding Notes.


 


34





















 


Section 2.14           Liquidated
Damages Under Registration Rights Agreements.  Under certain circumstances, the Company may
be obligated to pay liquidated damages to Holders, all as and to the extent set
forth in the Issue Date Registration Rights Agreement or any Registration
Rights Agreement applicable to Additional Notes.  The terms thereof are hereby incorporated herein
by reference and such liquidated damages are deemed to be interest for purposes
of this Indenture.


 


ARTICLE III


 


COVENANTS


 


Section 3.1             Payment
of Notes.


 


(a)                                  (1)           The Company shall pay the principal
of and interest (including Defaulted Interest) on the Notes in U.S. Legal
Tender on the dates and in the manner provided in the Notes and in this
Indenture.  Prior to 11:00 a.m. New
York City time on each Interest Payment Date and the Maturity Date, the Company
shall deposit with the Paying Agent in immediately available funds U.S. Legal
Tender sufficient to make cash payments due on such Interest Payment Date or
Maturity Date, as the case may be.  If
the Company, a Subsidiary Guarantor or an Affiliate of the Company or a
Subsidiary Guarantor is acting as Paying Agent, the Company, such Subsidiary
Guarantor or such Affiliate shall, prior to 11:00 a.m. New York City time
on each Interest Payment Date and the Maturity Date, segregate and hold in
trust U.S. Legal Tender sufficient to make cash payments due on such Interest
Payment Date or Maturity Date, as the case may be.  Principal and interest shall be considered
paid on the date due if on such date the Trustee or the Paying Agent (other
than the Company, a Subsidiary Guarantor or an Affiliate of the Company or a
Subsidiary Guarantor) holds in accordance with this Indenture U.S. Legal Tender
designated for and sufficient to pay all principal and interest then due and
the Trustee or the Paying Agent, as the case may be, is not prohibited from
paying such money to the Holders on that date pursuant to the terms of this
Indenture.  Notwithstanding the
foregoing, the Company may elect to make the payments of interest by check
mailed to the registered Holders at their registered addresses.


 


(2)           If a Holder of US$10.0 million or
more in aggregate principal amount of Notes has given wire transfer
instructions to the Company at least 10 Business Days prior to the Interest
Payment Date or the Maturity Date, the Company shall make all principal,
premium and interest payments on those Notes in accordance with such
instructions.


 


(b)           Notwithstanding anything to the
contrary contained in this Indenture, the Company may, to the extent it is
required to do so by law, deduct or withhold income or other similar taxes
imposed by the United States of America from principal or interest payments
hereunder.


 


Section 3.2             Maintenance
of Office or Agency.


 


(a)           The Company shall maintain each
office or agency required under Section 2.3.  The Company will give prompt written notice
to the Trustee of any change in the location of any such office or agency.  If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the Trustee, and
the Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.


 


(b)           The Company may also from time to
time designate one or more other offices or agencies (in or outside of The City
of New York) where the Notes may be presented or surrendered for any or all
such purposes and may from time to time rescind any such designation; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in The City of New York or, so long
as the Notes are listed on the Euro MTF, the alternative market of the
Luxembourg Stock Exchange and the rules of the Luxembourg Stock Exchange
so require, in Luxembourg, for such purposes. 
The


 


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Company will give
prompt written notice to the Trustee of any such designation or rescission and
any change in the location of any such other office or agency.


 


Section 3.3             Corporate
Existence.  Subject to Article IV,
the Company will do or cause to be done all things necessary to preserve and
keep in full force and effect its corporate existence.


 


Section 3.4             Payment
of Taxes.  The Company will pay or
discharge or cause to be paid or discharged, before the same shall become
delinquent, all taxes, assessments and governmental charges levied or imposed
upon the Company or any Restricted Subsidiary or for which it or any of them are
otherwise liable, or upon the income, profits or property of the Company or any
Restricted Subsidiary; provided, however,
that the Company shall not be required to pay or discharge or cause to be paid
or discharged any such tax, assessment or charge whose amount, applicability or
validity is being contested in good faith by appropriate proceedings and for
which appropriate reserves, if necessary (in the good faith judgment of
management of the Company), are being maintained in accordance with GAAP or where
the failure to effect such payment will not be disadvantageous to the Holders.


 


Section 3.5             Compliance
Certificate.


 


The Company and each Subsidiary Guarantor shall
deliver to the Trustee within 105 days after the end of each fiscal year of the
Company an Officers’ Certificate that complies with TIA § 314(a)(4) stating
that in the course of the performance by the signers of their duties as
Officers of the Company or such Subsidiary Guarantor, as the case may be, they
would normally have knowledge of any Default or Event of Default and whether or
not the signers know of any Default or Event of Default that occurred during
the previous fiscal year.  If they do,
the certificate shall describe the Default or Event of Default, its status and
what action the Company or such Subsidiary Guarantor is taking or proposes to
take with respect thereto.  The Company
and the Subsidiary Guarantors also shall comply with any other applicable
requirements of TIA § 314(a)(4).


 


Section 3.6             Further
Instruments and Acts.  The Company
and each Subsidiary Guarantor will execute and deliver such further instruments
and do such further acts as may be reasonably necessary or proper or as the
Trustee may reasonably request to carry out more effectively the purpose of
this Indenture.


 


Section 3.7             Waiver
of Stay, Extension or Usury Laws. 
The Company and each Subsidiary Guarantor covenants (to the fullest
extent permitted by applicable law) 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 or extension law or any usury law or other law that would prohibit or
forgive the Company or such Subsidiary Guarantor from paying all or any portion
of the principal of or interest on the Notes as contemplated herein, wherever
enacted, now or at any time hereafter in force, or which may affect the
covenants or the performance of this Indenture. 
The Company and each Subsidiary Guarantor hereby expressly waives (to
the fullest extent permitted by applicable law) all benefit or advantage of any
such law, and covenants that it will not hinder, delay or impede the execution
of any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.


 


Section 3.8             Change
of Control.


 


(a)           Upon the occurrence of a Change of
Control, the Company shall be required, if requested by any Holders, to
purchase all or a portion (in integral multiples of US$1,000) of the Holder’s
Notes at a purchase price equal to 101% of the principal amount thereof, plus
accrued and unpaid interest thereon through the date of purchase (the “Change
of Control Payment”).


 


(b)           On the Change of Control Payment
Date, the Company shall, to the extent lawful:


 


(1) accept for payment
all Notes or portions thereof properly tendered and not withdrawn pursuant to
the Change of Control Offer;


 


(2) deposit with the
Paying Agent funds in an amount equal to the Change of Control Payment in
respect of all Notes or portions thereof so tendered; and


 


36





















 


(3) deliver or cause to
be delivered to the Trustee the Notes so accepted together with an Officers’
Certificate stating the aggregate principal amount of Notes or portions thereof
being purchased by the Company.


 


(c)           If only a portion of a Note is
purchased pursuant to a Change of Control Offer, a new Note in a principal
amount equal to the portion thereof not purchased shall be issued in the name
of the Holder thereof upon cancellation of the original Note (or appropriate
adjustments to the amount and beneficial interests in a Global Note will be
made, as appropriate).


 


(d)           The Company shall not be required to
make a Change of Control Offer upon a Change of Control if:


 


(1) a third party makes
the Change of Control Offer in the manner, at the times and otherwise in
compliance with the requirements set forth in this Indenture applicable to a
Change of Control Offer made by the Company and purchases all Notes properly
tendered and not withdrawn under the Change of Control Offer, or


 


(2) notice of redemption
has been given pursuant to Section 5.3 hereof, unless and until
there is a default in payment of the applicable redemption price.


 


(e)           In the event that Holders of not less
than 95% of the aggregate principal amount of the outstanding Notes accept a
Change of Control Offer and the Company or a third party purchases all of the
Notes held by such Holders, the Company shall have the right, on not less than
30 nor more than 60 days’ prior notice, given not more than 30 days following
the purchase pursuant to the Change of Control Offer described above, to redeem
all of the Notes that remain outstanding following such purchase at a purchase
price equal to the Change of Control Payment plus, to the extent not included
in the Change of Control Payment, accrued and unpaid interest, if any, on the
Notes that remain outstanding, to the date of redemption (subject to the right
of Holders on the relevant record date to receive interest due on the relevant
interest payment date).


 


(f)            The Company shall comply with the
requirements of Rule 14e-1 under the Exchange Act and any other applicable
securities laws and regulations in connection with the purchase of Notes in
connection with a Change of Control Offer. 
To the extent that the provisions of any securities laws or regulations
conflict with this Section 3.8, the Company shall comply with the
applicable securities laws and regulations and will not be deemed to have
breached its obligations under this Indenture by doing so.


 


Section 3.9             Limitation
on Incurrence of Additional Indebtedness.


 


(a)           The Company shall not, and shall not
cause or permit any of its Restricted Subsidiaries to, directly or indirectly,
Incur any Indebtedness, including Acquired Indebtedness, except that:


 


(1) the Company and any
Subsidiary Guarantor may Incur Indebtedness, including Acquired Indebtedness,
and


 


(2) any Restricted
Subsidiary may Incur Acquired Indebtedness not Incurred in connection with, or
in anticipation or contemplation of, the relevant acquisition, merger or
consolidation,


 


if, at the time of and immediately after giving pro
forma effect to the Incurrence thereof and the application of the proceeds
therefrom, the Consolidated Fixed Charge Coverage Ratio of the Company is
greater than 2.25 to 1.0.


 


(b)           Notwithstanding clause (a) above,
the Company and its Restricted Subsidiaries, as applicable, may Incur the
following Indebtedness (“Permitted Indebtedness”):


 


37





















 


(1) Indebtedness in
respect of the Notes excluding Additional Notes;


 


(2) Guarantees by any
Subsidiary Guarantor of Indebtedness of the Company or any other Subsidiary
Guarantor permitted hereunder provided,
that if any such Guarantee is of Subordinated Indebtedness, then the Note
Guarantee of such Subsidiary Guarantor shall be senior to such Subsidiary
Guarantor’s Guarantee of such Subordinated Indebtedness;


 


(3) Indebtedness Incurred
by the Company or any Subsidiary Guarantor under Credit Facilities in an
aggregate principal amount at any time outstanding not to exceed the greater of
(x) US$100 million or (y) 10% of Consolidated Tangible Assets;


 


(4) other Indebtedness of
the Company and its Restricted Subsidiaries outstanding on the Issue Date,
other than Indebtedness otherwise specified under any of the other clauses of
this definition of Permitted Indebtedness;


 


(5) Hedging Obligations
entered into by the Company and its Restricted Subsidiaries in the ordinary
course of business and not for speculative purposes;


 


(6) intercompany
Indebtedness between the Company and any Restricted Subsidiary or between any
Restricted Subsidiaries; provided that:


 


(x)            if the Company or any Subsidiary
Guarantor is the obligor on such Indebtedness and the payee is not the Company
or any Subsidiary Guarantor, such Indebtedness must be expressly subordinated
to the prior payment in full of all obligations under the Notes and this
Indenture, in the case of the Company, or such Subsidiary Guarantor’s Note
Guarantee, in the case of any such Subsidiary Guarantor, and


 


(y)           in the event that at any time any
such Indebtedness ceases to be held by the Company or a Restricted Subsidiary,
such Indebtedness shall be deemed to be Incurred and not permitted by this
clause (6) at the time such event occurs;


 


(7) Indebtedness of the
Company or any of its Restricted Subsidiaries arising from the honoring by a
bank or other financial institution of a check, draft or similar instrument
inadvertently (including daylight overdrafts paid in full by the close of
business on the day such overdraft was Incurred) drawn against insufficient
funds in the ordinary course of business; provided,
that such Indebtedness is extinguished within five business days of Incurrence;


 


(8) Indebtedness of the
Company or any of its Restricted Subsidiaries represented by letters of credit
for the account of the Company or any Restricted Subsidiary, as the case may
be, in order to provide security for workers’ compensation claims, payment
obligations in connection with self-insurance or similar requirements in the
ordinary course of business;


 


(9) Indebtedness of the
Company or any Restricted Subsidiary represented by Capitalized Lease
Obligations or Purchase Money Indebtedness, in each case Incurred for the
purpose of acquiring or financing all or any part of the purchase price or cost
of construction or improvement of property or equipment used in the business of
the Company or such Restricted Subsidiary in an aggregate amount at any time
not to exceed the greater of (x) US$15 million or (y) 1.5% of Consolidated
Tangible Assets;


 


38





















 


(10)         Indebtedness in respect of bid,
performance or surety bonds in the ordinary course of business for the account
of the Company or any of its Restricted Subsidiaries, including Guarantees or
obligations of the Company or any Restricted Subsidiary with respect to letters
of credit supporting such bid, performance or surety obligations (in each case
other than for the payment of borrowed money);


 


(11)         Refinancing Indebtedness in respect of:


 


(x)            Indebtedness (other than
Indebtedness owed to the Company or any Subsidiary of the Company) Incurred
pursuant to clause (a) above (it being understood that no
Indebtedness outstanding on the Issue Date is Incurred pursuant to such
clause (a) above), or


 


(y)           Indebtedness Incurred pursuant to
clause (b)(1), (b)(4) (excluding Indebtedness outstanding on the
Issue Date deemed to be incurred under clause (b)(3) above or
Indebtedness owed to the Company or a Subsidiary of the Company) or (b)(12) of
this Section;


 


(12)         Permitted Acquisition Indebtedness in
an aggregate principal amount not to exceed the greater of (x) US$175 million
and (y) 17.5% of Consolidated Tangible Assets at any one time outstanding; and


 


(13)         Additional Indebtedness of the Company
or any Restricted Subsidiary in an aggregate principal amount not to exceed
US$15 million at any one time outstanding (which amount may, but need not, be
Incurred, in whole or in part, under Credit Facilities).


 


(c)           For purposes of determining
compliance with, and the outstanding principal amount of, any particular
Indebtedness Incurred pursuant to and in compliance with this Section 3.9,
the amount of Indebtedness issued at a price that is less than the principal
amount thereof shall be equal to the amount of the liability in respect thereof
determined in accordance with GAAP. 
Accrual of interest, the accretion or amortization of original issue
discount, the payment of regularly scheduled interest in the form of additional
Indebtedness of the same instrument or the payment of regularly scheduled
dividends on Disqualified Capital Stock in the form of additional Disqualified
Capital Stock with the same terms shall not be deemed to be an Incurrence of
Indebtedness for purposes of this Section 3.9; provided that any such outstanding
additional Indebtedness or Disqualified Capital Stock paid in respect of
Indebtedness Incurred pursuant to any provision of Section 3.9(b) shall
be counted as Indebtedness outstanding thereunder for purposes of any future
Incurrence under such provision.  For
purposes of determining compliance with this Section 3.9, in the
event that an item of proposed Indebtedness meets the criteria of more than one
of the categories under clauses (1) through (13) of Section 3.9(b),
or is entitled to be incurred pursuant to Section 3.9(a) hereof,
the Company shall be permitted to classify such item of Indebtedness on the
date of its incurrence and shall only be required to include the amount and
type of the above clauses, although the Company may divide and classify an item
of Indebtedness in one or more of the types of Indebtedness and may later
re-divide or reclassify all or a portion of such item of Indebtedness in any
manner that complies with this Section 3.9.  Notwithstanding any other provision of this Section 3.9,
the maximum amount of Indebtedness that the Issuer or any Restricted Subsidiary
may incur under this Section 3.9 shall not be deemed to be exceeded
as a result solely of fluctuations in exchange rates or currency values.


 


Section 3.10           Limitation
on Guarantees.  The Company shall not
permit any Restricted Subsidiary of the Company that is not a Subsidiary
Guarantor to Guarantee any Indebtedness of the Company or to secure any
Indebtedness of the Company with a Lien on the assets of such Restricted
Subsidiary, unless contemporaneously therewith (or prior thereto) effective
provision is made to Guarantee or secure the Notes on an equal and ratable
basis with such Guarantee or Lien for so long as such Guarantee or Lien remains
effective, and in an amount equal to the amount of Indebtedness so Guaranteed
or secured.  Any Guarantee by any such
Restricted Subsidiary of Subordinated Indebtedness of the Company will be
subordinated and junior in right of payment to the contemporaneous Guarantee of
the Notes by such Restricted Subsidiary.


 


39





















 


Section 3.11           Limitation
on Restricted Payments.


 


(a)           The Company shall not, and shall not
cause or permit any of its Restricted Subsidiaries to, directly or indirectly,
take any of the following actions (each, a “Restricted Payment”):


 


(1) declare or pay any
dividend or return of capital or make any distribution on or in respect of
shares of Capital Stock of the Company or any Restricted Subsidiary to holders
of such Capital Stock, other than:


 


(x)            dividends or distributions payable
in Qualified Capital Stock of the Company,


 


(y)           dividends or distributions payable to
the Company and/or a Restricted Subsidiary, or


 


(z)            dividends, distributions or returns
of capital made on a pro rata
basis to the Company and its Restricted Subsidiaries, on the one hand, and
minority holders of Capital Stock of a Restricted Subsidiary, on the other hand
(or on a less than pro rata basis
to any minority holder);


 


(2) purchase, redeem or
otherwise acquire or retire for value:


 


(x)            any Capital Stock of the Company, or


 


(y)           any
Capital Stock of any Restricted Subsidiary held by an Affiliate of the Company
(other than a Restricted Subsidiary) or any Preferred Stock of a Restricted
Subsidiary, except for Capital Stock held by the Company or a Restricted
Subsidiary or purchases, redemptions, acquisitions or retirements for value of
Capital Stock on a pro rata basis
from the Company and/or any Restricted Subsidiaries, on the one hand, and minority
holders of Capital Stock of a Restricted Subsidiary, on the other hand,
according to their respective percentage ownership of the Capital Stock of such
Restricted Subsidiary;


 


(3) make any principal
payment on, purchase, defease, redeem, prepay, decrease or otherwise acquire or
retire for value, prior to any scheduled final maturity, scheduled repayment or
scheduled sinking fund payment, as the case may be, any Subordinated
Indebtedness (excluding (x) any intercompany Indebtedness between or among
the Company and/or any Restricted Subsidiaries or (y) the purchase,
repurchase or other acquisition of Indebtedness that is contractually
subordinate to the Notes or any Note Guarantee, as the case may be, purchased
in anticipation of satisfying a sinking fund obligation, principal installment
or final maturity, in each case within one year of such date of purchase,
repurchase or acquisition); or


 


(4) make any Investment
(other than Permitted Investments);


 


if at
the time of the Restricted Payment and immediately after giving effect thereto:


 


(A)          a Default or an Event of Default shall
have occurred and be continuing;


 


(B)           the Company is not able to Incur at
least US$1.00 of additional Indebtedness pursuant to Section 3.9(a);
or


 


40





















 


(C)           the aggregate amount (the amount
expended for these purposes, if other than in cash, being the Fair Market Value
of the relevant property) of the proposed Restricted Payment and all other
Restricted Payments made subsequent to the Issue Date up to the date thereof,
shall exceed the sum of:


 


(i)            50% of cumulative Consolidated Net
Income of the Company or, if such cumulative Consolidated Net Income of the
Company is a loss, minus 100% of the loss, accrued during the period, treated
as one accounting period, beginning on the fiscal quarter beginning October 1,
2005 to the end of the most recent fiscal quarter for which consolidated
financial information of the Company is available; plus


 


(ii)           100% of the aggregate net cash
proceeds received by the Company from any Person from any:


 


(1)           contribution to the equity capital of
the Company not representing an interest in Disqualified Capital Stock or
issuance and sale of Qualified Capital Stock of the Company, in each case,
subsequent to the Issue Date, or


 


(2)           issuance and sale subsequent to the
Issue Date (and, in the case of Indebtedness of a Restricted Subsidiary, at
such time as it was a Restricted Subsidiary) of any Indebtedness of the Company
or any Restricted Subsidiary that has been converted into or exchanged for
Qualified Capital Stock of the Company,


 


excluding, in each case, any net cash proceeds:


 


(x)            received from a Subsidiary of the
Company;


 


(y)           used
to redeem Notes in accordance with the provisions in Exhibit A
under the heading “Optional Redemption Upon Equity Offerings”; or


 


(z)            applied
in accordance with Section 3.11(b)(2) or (3) below; plus


 


(iii)          any Investment Return; plus


 


(iv)          US$15 million.


 


(b)           Notwithstanding the subsection (a) above,
this Section 3.11 does not prohibit:


 


(1) the payment of any
dividend or the consummation of any irrevocable redemption of Subordinated
Indebtedness within 60 days after the date of declaration of such dividend or
giving of the redemption notice, as the case may be, if the dividend or redemption
would have been permitted on the date of declaration or notice pursuant to the
preceding paragraph; provided
that such redemption shall be included (without duplication for the
declaration) in the calculation of the amount of Restricted Payments;


 


(2) the acquisition of
any shares of Capital Stock of the Company,


 


(x)                                          in
exchange for Qualified Capital Stock of the Company, or


 


(y)                                        through
the application of the net proceeds received by the Company from a
substantially concurrent sale of Qualified Capital Stock of the Company or a
contribution to the equity


 


41





















 


capital of the Company not representing an interest in
Disqualified Capital Stock, in each case not received from a Subsidiary of the
Company;


 


provided, that the
value of any such Qualified Capital Stock issued in exchange for such acquired
Capital Stock and any such proceeds shall be excluded from Section 3.11(a)(C)(ii) above
(and were not included therein at any time);


 


(3)           the voluntary prepayment, purchase,
defeasance, redemption or other acquisition or retirement for value of any
Subordinated Indebtedness solely in exchange for, or through the application of
net proceeds of a substantially concurrent sale, other than to a Subsidiary of
the Company, of:


 


(x)            Qualified
Capital Stock of the Company, or


 


(y)                                 Refinancing
Indebtedness for such Subordinated Indebtedness;


 


provided, that the value of any Qualified Capital
Stock issued in exchange for Subordinated Indebtedness and any net proceeds referred
to above shall be excluded from Section 3.11(a)(C)(ii) above
(and were not included therein at any time);


 


(4)           if no Default or Event of Default
shall have occurred and be continuing, repurchases by the Company of Common
Stock of the Company or options, warrants or other securities exercisable or
convertible into Common Stock of the Company from any current or former
employees, officers, directors or consultants of the Company or any of its
Subsidiaries or their authorized representatives upon the death, disability or
termination of employment or directorship of such employees, officers or
directors, or the termination of retention of any such consultants, in an
amount not to exceed US$5 million in any calendar year (with unused amounts in
any calendar year being permitted to be carried over into succeeding calendar
years) plus the cash proceeds of key man life insurance policies received by
the Company and its Restricted Subsidiaries;


 


(5)           the repurchase of Capital Stock
deemed to occur upon the exercise of stock options or warrants to the extent
such Capital Stock represents a portion of the exercise price of those stock
options or warrants;


 


(6)           the declaration and payment of
regularly scheduled or accrued dividends or distributions to holders of any class
or series of Disqualified Capital Stock of the Company or any Restricted
Subsidiary issued on or after the Issue Date in accordance with Section 3.9(a);


 


(7)           upon the occurrence of a Change of
Control and within 60 days after the completion of the offer to repurchase the
Notes pursuant to Section 3.8, any repurchase, redemption or other
acquisition or retirement for value of any Subordinated Indebtedness of the
Company or any Subsidiary Guarantor required pursuant to the terms thereof as a
result of such Change of Control; provided that
(A) the terms of such purchase or redemption are substantially similar in
all material respects to the comparable provision included herein, and (B) at
the time of such purchase or redemption no Default or Event of Default shall
have occurred and be continuing (or would result therefrom); and


 


(8)           if no Default or Event of Default
shall have occurred and be continuing, the purchase by the Company of
fractional shares arising out of stock dividends, splits or combinations or
business combinations.


 


42





















 


In determining the aggregate amount of Restricted
Payments made subsequent to the Issue Date, amounts expended pursuant to
clauses (1) (without duplication for the declaration of the relevant
dividend), (4) and (7) of paragraph (b) of this Section 3.11
shall be included in such calculation and amounts expended pursuant to
clauses (2), (3), (5),(6), and (8) above shall not be included
in such calculation.


 


Section 3.12           Limitation
on Asset Sales and Sales of Subsidiary Stock.


 


(a)           The Company shall not, and shall not
permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:


 


(1) the Company or the
applicable Restricted Subsidiary, as the case may be, receives consideration at
the time of the Asset Sale at least equal to the Fair Market Value of the
assets or Capital Stock sold or otherwise disposed of, and


 


(2) at least 75% of the
consideration received for the assets or Capital Stock sold by the Company or
the Restricted Subsidiary, as the case may be, in the Asset Sale shall be in
the form of cash or Cash Equivalents received at the time of such Asset Sale; provided that each of the following will
be deemed to be cash:


 


(x)            any securities, notes or other
obligations received by the Company or any such Restricted Subsidiary from such
transferee that are converted by the Company or such Restricted Subsidiary into
cash or Cash Equivalents within 120 days of the receipt thereof (subject to
ordinary settlement periods), to the extent of the cash or Cash Equivalents
received in that conversion; and


 


(y)           any Capital Stock of a Person engaged
in a Permitted Business that will become, upon purchase, a Restricted
Subsidiary or assets (other than current assets as determined in accordance
with GAAP or Capital Stock) to be used by the Company or any Restricted
Subsidiary in a Permitted Business;


 


provided, that amounts received
pursuant to clauses (x) and (y) shall not be deemed to constitute Net Cash
Proceeds for purposes of making an Asset Sale Offer.


 


(b)           The Company or such Restricted
Subsidiary, as the case may be, may apply the Net Cash Proceeds of any such
Asset Sale within 365 days thereof to:


 


(1) repay any Senior
Indebtedness of the Company or a Restricted Subsidiary or Indebtedness of any
Restricted Subsidiary that is not a Subsidiary Guarantor (including, in each
case without limitation, Capital Lease Obligations), or


 


(2) make capital
expenditures in a Permitted Business, or


 


(3) to purchase


 


(x)            assets (other than current assets as
determined in accordance with GAAP or Capital Stock) to be used by the Company
or any Restricted Subsidiary in a Permitted Business, or


 


(y)           all or substantially all of the
assets of, or any Capital Stock of, a Person engaged in a Permitted Business
if, after giving effect to any such acquisition of Capital Stock, the Permitted
Business is or becomes a Restricted Subsidiary,


 


43





















 


from a Person other than
the Company and its Restricted Subsidiaries;


 


provided that in
the cases of clauses (x) and (y) the Company will have complied with its
obligations if it enters into a binding commitment to acquire such assets or
such Capital Stock within 365 days after receipt of such Net Cash Proceeds; provided further that such binding
commitment shall be subject only to customary conditions and that such
acquisition is consummated within six months from the date of signing such
binding commitment.


 


(c)           To the extent all or a portion of the
Net Cash Proceeds of any Asset Sale are not applied within the 365 days of the
Asset Sale as described in Section 3.12(b)(1), (2) and (3),
the Company shall make an offer to purchase Notes (the “Asset Sale Offer”), at
a purchase price equal to 100% of the principal amount of the Notes to be
purchased, plus accrued and unpaid interest thereon, to the date of purchase
(the “Asset Sale Offer Amount”).  The
Company shall purchase pursuant to an Asset Sale Offer from all tendering
Holders on a pro rata basis, and,
at the Company’s option, on a pro rata
basis with the holders of any other Senior Indebtedness with similar provisions
requiring the Company to offer to purchase the other Senior Indebtedness with
the proceeds of Asset Sales, that principal amount (or accreted value in the
case of Indebtedness issued with original issue discount) of Notes and the
other Senior Indebtedness to be purchased equal to such unapplied Net Cash
Proceeds.  The Company may satisfy its
obligations under this Section 3.12 with respect to the Net Cash
Proceeds of an Asset Sale by making an Asset Sale Offer prior to the expiration
of the relevant 365-day period.


 


(d)           The purchase of Notes pursuant to an
Asset Sale Offer shall occur on a date not less than 20 business days following
the date thereof, or any longer period as may be required by law, nor more than
45 days following the 365th day following the Asset Sale.  The Company may, however, defer an Asset Sale
Offer until there is an aggregate amount of unapplied Net Cash Proceeds from
one or more Asset Sales equal to or in excess of US$15 million.  At that time, the entire amount of unapplied
Net Cash Proceeds, and not just the amount in excess of US$15 million,
shall be applied as required pursuant to this Section 3.12.  Pending application in accordance with this Section 3.12,
Net Cash Proceeds shall be applied to temporarily reduce revolving credit
borrowings that can be reborrowed or Invested in Cash Equivalents.


 


(e)           Upon receiving the Asset Sale Offer
Notice, Holders may elect to tender their Notes in whole or in part in integral
multiples of US$1,000 in exchange for cash.


 


(f)            On the Asset Sale Offer Payment
Date, the Company shall, to the extent lawful:


 


(1) accept for payment
all Notes or portions thereof properly tendered pursuant to the Asset Sale
Offer;


 


(2) deposit with the
Paying Agent funds in an amount equal to the Asset Sale Offer Amount in respect
of all Notes or portions thereof so tendered; and


 


(3) deliver or cause to
be delivered to the Trustee the Notes so accepted together with an Officers’
Certificate stating the aggregate principal amount of Notes or portions thereof
being purchased by the Company.


 


(g)           To the extent Holders of Notes and
holders of other Senior Indebtedness, if any, which are the subject of an Asset
Sale Offer properly tender and do not withdraw Notes or the other Senior
Indebtedness in an aggregate amount exceeding the amount of unapplied Net Cash
Proceeds, the Company shall purchase the Notes and the other Senior
Indebtedness on a pro rata basis
(based on amounts tendered).  If only a
portion of a Note is purchased pursuant to an Asset Sale Offer, a new Note in a
principal amount equal to the portion thereof not purchased will be issued in
the name of the Holder thereof upon cancellation of the original Note (or
appropriate adjustments to the amount and beneficial interests in a global note
will be made, as appropriate).  Notes (or
portions thereof) purchased pursuant to an Asset Sale Offer shall be cancelled
and cannot be reissued.


 


44





















 


(h)           The Company shall comply with the
requirements of Rule 14e-1 under the Exchange Act and any other applicable
securities laws in connection with the purchase of Notes pursuant to an Asset
Sale Offer.  To the extent that the provisions
of any applicable securities laws or regulations conflict with this Section 3.12,
the Company shall comply with those laws and regulations and shall not be
deemed to have breached its obligations under this Section 3.12 by
doing so.


 


(i)            Upon completion of an Asset Sale
Offer, the amount of Net Cash Proceeds will be reset at zero.  Accordingly, to the extent that the aggregate
amount of Notes and other Indebtedness tendered pursuant to an Asset Sale Offer
is less than the aggregate amount of unapplied Net Cash Proceeds, the Company
and its Restricted Subsidiaries may use any remaining Net Cash Proceeds for any
purpose not otherwise prohibited hereby.


 


(j)            In the event of the transfer of
substantially all (but not all) of the property and assets of the Company and
its Restricted Subsidiaries as an entirety to a Person in a transaction
permitted under Section 4.1, the Surviving Entity shall be deemed
to have sold the properties and assets of the Company and its Restricted
Subsidiaries not so transferred for purposes of this Section 3.12,
and shall comply with the provisions of this covenant with respect to the
deemed sale as if it were an Asset Sale. 
In addition, the Fair Market Value of properties and assets of the
Company or its Restricted Subsidiaries so deemed to be sold shall be deemed to
be Net Cash Proceeds for purposes of this Section 3.12.


 


(k)           If at any time any non-cash
consideration received by the Company or any Restricted Subsidiary, as the case
may be, in connection with any Asset Sale is converted into or sold or
otherwise disposed of for cash (other than interest received with respect to
any non-cash consideration), the conversion or disposition shall be deemed to
constitute an Asset Sale hereunder and the Net Cash Proceeds thereof shall be
applied in accordance with this Section 3.12 within 365 days of conversion or
disposition.


 


Section 3.13           Limitation
on Designation of Unrestricted Subsidiaries.


 


(a)           The Company may designate after the
Issue Date any Subsidiary of the Company as an “Unrestricted Subsidiary” under
this Indenture (a “Designation”) only if:


 


(1)           no Default or Event of Default shall
have occurred and be continuing at the time of or after giving effect to such
Designation and any transactions between the Company or any of its Restricted
Subsidiaries and such Unrestricted Subsidiary are in compliance with Section 3.17;


 


(2)           at the time of and after giving
effect to such Designation, the Company could Incur US$1.00 of additional
Indebtedness pursuant to Section 3.9(a);


 


(3)           the Company would be permitted to
make an Investment at the time of Designation (assuming the effectiveness of
such Designation and treating such Designation as an Investment at the time of
Designation) as a Restricted Payment pursuant to Section 3.11(a) or
as a Permitted Investment in an amount (the “Designation Amount”) equal
to the amount of the Company’s Investment in such Subsidiary on such date, and


 


(4)           at the time of such Designation,
neither the Company nor any Restricted Subsidiary will:


 


(1)           provide credit support for, subject
any of its property or assets (other than the Capital Stock of any Unrestricted
Subsidiary) to the satisfaction of, or Guarantee, any Indebtedness of such
Subsidiary (including any undertaking, agreement or instrument evidencing such
Indebtedness);


 


(2)           be directly or indirectly liable for
any Indebtedness of such Subsidiary; or


 


(3)           be directly or indirectly liable for
any Indebtedness which provides that the holder thereof may (upon notice, lapse
of time or both) declare a default thereon or cause the payment thereof to be
accelerated or


 


45





















 


payable prior to
its final scheduled maturity upon the occurrence of a default with respect to
any Indebtedness of such Subsidiary, except for any non-recourse Guarantee
given solely to support the pledge by the Company or any Restricted Subsidiary
of the Capital Stock of such Subsidiary.


 


(b)           The Company may revoke any
Designation of a Subsidiary as an Unrestricted Subsidiary (a “Revocation”)
only if:


 


(1)           No Default or Event of Default shall
have occurred and be continuing at the time of and after giving effect to such
Revocation; and


 


(2)           all Liens and Indebtedness of such
Unrestricted Subsidiary outstanding immediately following such Revocation
would, if Incurred at such time, have been permitted to be Incurred for all
purposes of this Indenture.


 


(c)           The Designation of a Subsidiary of
the Company as an Unrestricted Subsidiary shall be deemed to include the
Designation of all of the Subsidiaries of such Subsidiary.  All Designations and Revocations must be
evidenced by resolutions of the Board of Directors of the Company, delivered to
the Trustee certifying compliance with the preceding provisions.


 


Section 3.14           Limitation
on Dividends; Payment Restrictions Affecting Restricted Subsidiaries.


 


(a)           Except as provided in paragraph (b) of
this Section 3.14, the Company shall not, and shall not cause or
permit any of its Restricted Subsidiaries to, directly or indirectly, create or
otherwise cause or permit to exist or become effective any encumbrance or
restriction on the ability of any Restricted Subsidiary to:


 


(1)           pay dividends or make any other
distributions on or in respect of its Capital Stock to the Company or any other
Restricted Subsidiary or pay any Indebtedness owed to the Company or any other
Restricted Subsidiary;


 


(2)           make loans or advances to, or
Guarantee any Indebtedness or other obligations of, or make any Investment in,
the Company or any other Restricted Subsidiary; or


 


(3)           transfer any of its property or
assets to the Company or any other Restricted Subsidiary.


 


(b)           Paragraph (a) of this Section 3.14
shall not apply to encumbrances or restrictions existing under or by reason of:


 


(1)           applicable law rule, regulation or
order;


 


(2)           this Indenture, the Notes and the
Note Guarantees;


 


(3)           the terms of any Indebtedness
outstanding on the Issue Date, and any amendment, modification, restatement,
renewal, restructuring, replacement or refinancing thereof; provided, that any amendment, modification,
restatement, renewal, restructuring, replacement or refinancing is not
materially more restrictive, taken as a whole, with respect to such
encumbrances or restrictions than those in existence on the Issue Date;


 


(4)           customary non-assignment provisions
of any contract and customary provisions restricting assignment or subletting
in any lease governing a leasehold interest of any Restricted Subsidiary, or
any customary restriction on the ability of a Restricted


 


46





















 


Subsidiary to dividend, distribute or otherwise
transfer any asset which secures Indebtedness secured by a Lien, in each case
permitted to be Incurred hereunder;


 


(5)           any instrument governing Acquired
Indebtedness not Incurred in connection with, or in anticipation or
contemplation of, the relevant acquisition, merger or consolidation, which
encumbrance or restriction is not applicable to any Person, or the properties
or assets of any Person, other than the Person or the properties or assets of
the Person so acquired;


 


(6)           restrictions with respect to a
Restricted Subsidiary of the Company imposed pursuant to a binding agreement
which has been entered into for the sale or disposition of Capital Stock or
assets of such Restricted Subsidiary; provided,
that such restrictions apply solely to the Capital Stock or assets of such
Restricted Subsidiary being sold;


 


(7)           customary restrictions imposed on the
transfer of copyrighted or patented materials;


 


(8)           an agreement governing Indebtedness
of the Company or any Restricted Subsidiaries permitted to be Incurred
subsequent to the date hereof in accordance with Section 3.9; provided that the provisions relating to
such encumbrance or restriction contained in such agreement are no more
restrictive than those contained in the agreement referred to in Section 3.14(b)(3) above;


 


(9)           purchase money obligations for
property (including Capital Stock) acquired in the ordinary course of business
and Capital Lease Obligations that impose restrictions on the property
purchased or leased of the nature described in Section 3.14(a)(3) above;


 


(10)         Liens permitted to be incurred under Section 3.16
that limits the right of the debtor to dispose of the assets securing such
Indebtedness;


 


(11)         provisions limiting the payment of
dividends in the organizational documents, shareholders’ agreements, joint
venture agreements or similar documents of, or related to, Restricted
Subsidiaries that are not Wholly Owned Subsidiaries and which have been entered
into with the approval of the Company’s Board of Directors;


 


(12)         restrictions on cash deposited with
banks in the ordinary course of business consistent with past practice to
secure trade payable obligations and guarantees of such trade payable
obligations of the Company and its Restricted Subsidiaries under Supplier
Factoring Facilities; or


 


(13)         restrictions customarily granted in
connection with securitization, factoring or discounting involving receivables
that are imposed in connection with a Receivables Transaction.


 


Section 3.15           Limitation
on Layered Indebtedness.  The Company
shall not, and shall not permit any Subsidiary Guarantor to, directly or
indirectly, Incur any Indebtedness that is subordinate in right of payment to
any other Senior Indebtedness, unless such Indebtedness is expressly
subordinate in right of payment to the Notes or, in the case of a Subsidiary
Guarantor, its Note Guarantee to the same extent and on the same terms as such
Indebtedness is subordinate to such other Indebtedness.


 


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Section 3.16           Limitation
on Liens.


 


(a)           The Company shall not, and shall not
cause or permit any of its Restricted Subsidiaries to, directly or indirectly,
Incur any Liens of any kind (except for Permitted Liens) against or upon any of
their respective properties or assets, whether owned on the Issue Date or
acquired after the Issue Date, or any proceeds therefrom, to secure any
Indebtedness or trade payables unless contemporaneously therewith effective
provision is made:


 


(1) in the case of the
Company or any Restricted Subsidiary other than a Subsidiary Guarantor, to
secure the Notes and all other amounts due hereunder; and


 


(2) in the case of a
Subsidiary Guarantor, to secure such Subsidiary Guarantor’s Note Guarantee and
all other amounts due hereunder;


 


in each case, equally and ratably with such
Indebtedness or other obligation (or, in the event that such Indebtedness is
subordinated in right of payment to the Notes or such Note Guarantee, as the
case may be, prior to such Indebtedness or other obligation) with a Lien on the
same properties and assets securing such Indebtedness or other obligation for
so long as such Indebtedness or other obligation is secured by such Lien.


 


Section 3.17           Limitation
on Transactions with Affiliates.


 


(a)           The Company shall not, and shall not
permit any of its Restricted Subsidiaries to, directly or indirectly, enter
into any transaction or series of related transactions (including, without
limitation, the purchase, sale, lease or exchange of any property or the
rendering of any service) with, or for the benefit of, any of its Affiliates
(each an “Affiliate Transaction”), unless:


 


(1) the terms of such
Affiliate Transaction are no less favorable than those that could reasonably be
expected to be obtained in a comparable transaction at such time on an arm’s-length
basis from a Person that is not an Affiliate of the Company;


 


(2) in the event that
such Affiliate Transaction involves aggregate payments, or transfers of
property or services with a Fair Market Value, in excess of US$5 million,
the terms of such Affiliate Transaction will be approved by a majority of the
members of the Board of Directors of the Company (including a majority of the
disinterested members thereof), the approval to be evidenced by a Board
Resolution stating that the Board of Directors has determined that such
transaction complies with the preceding provisions; and


 


(3) in the event that
such Affiliate Transaction involves aggregate payments, or transfers of
property or services with a Fair Market Value, in excess of US$25 million, the
Company will, prior to the consummation thereof, obtain a favorable opinion as
to the fairness of such Affiliate Transaction to the Company and the relevant
Restricted Subsidiary (if any) from a financial point of view from an
Independent Financial Advisor and file the same with the Trustee.


 


(b)           The provisions of Section 3.17(a) above
will not apply to:


 


(1) Affiliate
Transactions with or among the Company and any Restricted Subsidiary or between
or among Restricted Subsidiaries;


 


(2) reasonable fees and
compensation paid to, and any indemnity provided on behalf of, officers,
directors, employees, consultants or agents of the Company or any Restricted
Subsidiary as determined in good faith by the Company’s Board of Directors;


 


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(3) Affiliate
Transactions undertaken pursuant to any contractual obligations or rights in
existence on the Issue Date and any amendment, modification or replacement of
such agreement (so long as such amendment, modification or replacement is not
materially more disadvantageous to the Holders of the Notes, taken as a whole,
than the original agreement as in effect on the Issue Date);


 


(4) any Restricted
Payments made in compliance with Section 3.11 or any Permitted
Investments;


 


(5) loans and advances to
officers, directors and employees of the Company or any Restricted Subsidiary
for travel, entertainment, moving and other relocation expenses, in each case
made in the ordinary course of business and not exceeding US$2.5 million
outstanding at any one time; and


 


(6) any issuance of
Capital Stock (other than Disqualified Stock) of the Company to Affiliates of
the Company or to any director, officer, employee or consultant of the Company,
and the granting and performance of registration rights.


 


Section 3.18           Conduct
of Business.  The Company and its
Restricted Subsidiaries shall not engage in any business other than a Permitted
Business.


 


Section 3.19           Reports
to Holders.


 


(a)           Notwithstanding that the Company may
not be required to file with the SEC information, documents, or reports
pursuant to Section 13 or Section 15(d) of the Exchange Act, it
shall:


 


(i)            file with the SEC (with a copy to
the Trustee), to the extent permitted,


 


(A)          annual reports on Form 20-F (or
any successor form) containing the information required to be contained therein
(or such successor form) within the time period required under the rules of
the SEC for the filing of Form 20-F (or any successor form) by foreign
private issuers subject thereto, and


 


(B)           reports on Form 6-K (or any
successor form) including, whether or not required, unaudited quarterly
financial statements (which shall include at least a balance sheet, income
statement and cash flow statement in each case prepared in accordance with
Mexican GAAP) along with other financial information and a discussion of
results in each case with a substantially similar level of information in all
material respects as provided by the Company in its Form 6-K for the
second quarter of 2005, within 45 days after the end of each of the first three
fiscal quarters of each fiscal year, and


 


(ii)           to the extent not filed with the SEC
provide the Trustee and the holders with the information, documents and reports
referred to in clause (i) above within the periods specified above.


 


(iii)          transmit
within 30 days after the filing thereof with the Trustee, in the manner and to
the extent provided in Section 313(c) of the Trust Indenture Act,
such summaries of any information, documents and reports required to be filed
by the Company pursuant to paragraphs (i) and (ii) of this Section as
may be required by rules and regulations prescribed from time to time by
the Commission.


 


(b)           At any time when the Company is not
subject to or is not current in its reporting obligations under Section 3.19(a)(i),
the Company shall make available, upon request, to any holder and any
prospective purchaser of Notes the information required pursuant to Rule 144A(d)(4) under
the Securities Act.


 


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(c)           So long as the Notes are listed on
Euro MTF, the alternative market of the Luxembourg Stock Exchange, the Company
shall make available the information specified in Section 3.19(b) at
the specified office of the Luxembourg paying agent for the Notes.


 


Section 3.20           Listing.


 


(a)           In the event that the Notes are
listed on Euro MTF, the alternative market of the Luxembourg Stock Exchange,
the Company shall use its reasonable best efforts to maintain such listing; provided that if, as a result of the
European Union regulated market amended Directive 2001/34/EC (the “Transparency
Directive”) or any legislation implementing the Transparency Directive the
Company could be required to publish financial information either more
regularly than it otherwise would be required to or according to accounting
principles which are materially different from the accounting principles which
the Company would otherwise use to prepare its published financial information,
the Company may delist the Notes from the Euro MTF in accordance with the rules of
the Luxembourg Stock Exchange and seek an alternative admission to listing,
trading and/or quotation for the Note on a different section of the
Luxembourg Stock Exchange or by such other listing authority, stock exchange
and/or quotation system inside or outside the European Union as the Company may
reasonably decide.


 


(b)           From and after the date the Notes are
listed on the Euro MTF, the alternative market of the Luxembourg Stock
Exchange, and so long as it is required by the rules of such exchange, all
notices to the Holders will be published in English in accordance with Section 11.2(b).


 


Section 3.21           Payment
of Additional Amounts.


 


(a)           The Company and the Subsidiary
Guarantors shall pay to holders of the Notes all additional amounts (“Additional
Amounts”) that may be necessary so that every net payment of interest
(including any premium paid upon redemption of the Notes) or principal to the
Holder shall not be less than the amount provided for in the Notes.  The term “net payment” means the amount the
Company or its paying agent pay the Holder after deducting or withholding an
amount for or on account of any present or future taxes, duties, assessments or
other governmental charges (“Taxes”) imposed with respect to that
payment by a Mexican taxing authority (“Taxing Authority”).


 


(b)           The Company and the Subsidiary
Guarantors shall not pay additional amounts to any Holder for or solely on
account of any of the following:


 


(1)           any taxes, duties, assessments or other governmental
charges imposed solely because at any time there is or was a connection between
the Holder or beneficial owner of the Note and Mexico (or any political
subdivision or territory or possession thereof), including such Holder or
beneficial owner (i) being or having been a citizen or resident thereof, (ii) maintaining
or having maintained an office, permanent establishment, or branch subject to
taxation therein, or (iii) being or having been present or engaged in a
trade or business therein (other than the mere receipt of a payment or the
ownership or holding of a Note),


 


(2)           any estate, inheritance, gift, transfer or similar tax,
assessment or other governmental charge imposed with respect to the Notes,


 


(3)           any taxes, duties, assessments or other governmental
charges imposed solely because the Holder or any other person fails to comply
with any certification, identification, information, documentation or other
reporting requirement concerning the nationality, residence, identity or
connection with Mexico (or any political subdivision or territory or possession
thereof) of the Holder or any beneficial owner of the Note, if compliance is
required by statute, regulation, officially published administrative practice
of the taxing jurisdiction or by an applicable income tax treaty, which is in
effect to which Mexico is a party, as a precondition to exemption from, or
reduction in the rate of, the tax, assessment or other governmental charge and
we have given the


 


50





















 


Holders at least
30 days’ notice that Holders will be required to provide such information
and identification;


 


(4)           any tax, duty, assessment or other governmental charge
payable otherwise than by deduction or withholding from payments on the Notes,


 


(5)           any taxes, duties, assessments or other governmental
charges with respect to such Note presented for payment more than 30 days
after the date on which the payment became due and payable or the date on which
payment thereof is duly provided for and notice thereof given to Holders,
whichever occurs later, except to the extent that the holders of such Note
would have been entitled to such additional amounts on presenting such Note for
payment on any date during such 30 day period, and


 


(6)           any payment on the Note to a Holder that is a fiduciary or
partnership or a person other than the sole beneficial owner of any such
payment, to the extent that a beneficiary or settlor with respect to such
fiduciary, a member of such a partnership or the beneficial owner of the
payment would not have been entitled to the additional amounts had the
beneficiary, settlor, member or beneficial owner been the holder of the Note.


 


(c)           (1)           The
limitations on the Company’s and Subsidiary Guarantors’ obligations to pay
Additional Amounts set forth in Section 3.21(b)(3) above shall
not apply:


 


(i)            if the provision of information,
documentation or other evidence described in such Section 3.21(b)(3) would
be materially more onerous, in form, in procedure or in the substance of
information disclosed, to a Holder or beneficial owner of a Note, taking into
account any relevant differences between U.S. and Mexican law, regulation
or administrative practice, than comparable information or other reporting requirements
imposed under U.S. tax law (including the United States-Mexico income tax
treaty), regulation (including proposed regulations) and administrative
practice.


 


(ii)           unless (A) the provision of the
information, documentation or other evidence described in such Section 3.21(b)(3) becomes
expressly required by the applicable Mexican statutes, regulations and
administrative practices, and (B) the Company otherwise would not meet the
requirements for application of the reduced Mexican tax rate.


 


(iii)          if the provisions of Article 195,
Section II, subsection a) of the Mexican Income Tax Law (or a
substitute equivalent provision) would apply.


 


(2)           In addition, such Section 3.21(b)(3) does
not require, and shall not be construed to require that any person, including
any non-Mexican pension fund, retirement fund or financial institution,
register with the Ministry of Finance and Public Credit to establish
eligibility for an exemption from, or a reduction of, Mexican withholding tax.


 


(d)           Upon request, the Company and the
Subsidiary Guarantors shall provide the Trustee with documentation satisfactory
to the Trustee evidencing the payment of Mexican taxes in respect of which we
have paid any Additional Amount.  The
Company shall make copies of such documentation available to the Holders of the
Notes or the Paying Agent upon request.


 


(e)           In the event that Additional Amounts
actually paid with respect to the Notes pursuant to this Section 3.21
are based on rates of deduction or withholding of withholding taxes in excess
of the appropriate rate applicable to the Holder of such Notes, and as a result
thereof such Holder is entitled to make a claim for a refund or credit of such
excess from the authority imposing such withholding tax, then such Holder
shall, by accepting such Notes, be deemed to have assigned and transferred all
right, title and interest to any such claim for a refund or credit of such
excess to the Company.  However, by
making such assignment, the Holder makes no


 


51





















 


representation or
warranty that the Company will be entitled to receive such claim for a refund
or credit and incurs no other obligation with respect thereto.


 


(f)            In the event of any merger or other
transaction described and permitted under Section 4.1, then all
references to Mexico, Mexican law or regulations, and Mexican taxing
authorities under this Section 3.21 (other than Section 3.21(c)(1))
and under Article V and Section 5 of Exhibit A
shall be deemed to also include the United States and any political subdivision
therein or thereof, United States law or regulations, and any taxing authority
of the United States or any political subdivision therein or thereof,
respectively.


 


Section 3.22           Suspension
of Covenants.


 


(a)           During any period of time that (i) the
Notes have Investment Grade Ratings from both Rating Agencies and (ii) no
Default or Event of Default has occurred and is continuing (the occurrence of
the events described in the foregoing clauses (i) and (ii) being
collectively referred to as a “Covenant Suspension Event”), the Company and its
Restricted Subsidiaries will not be subject to Sections 3.8, 3.9,
3.10, 3.11, 3.12, 3.13, 3.14, 3.15, 3.17,
3.18 and 4.1(a)(2) (collectively, the “Suspended
Covenants”).


 


(b)           In the event that the Company and its
Restricted Subsidiaries are not subject to the Suspended Covenants for any
period of time as a result of the foregoing, and on any subsequent date (the “Reversion
Date”) one of the Rating Agencies withdraws its Investment Grade Rating or
downgrades its rating assigned to the Notes below an Investment Grade Rating,
then the Company and its Restricted Subsidiaries will thereafter again be
subject to the Suspended Covenants.  The
period of time between the Suspension Date and the Reversion Date is referred
to as the “Suspension Period.” 
Notwithstanding that the Suspended Covenants may be reinstated, no
Default or Event of Default will be deemed to have occurred as a result of a
failure to comply with the Suspended Covenants during the Suspension Period (or
upon termination of the Suspension Period or after that time based solely on
events that occurred during the Suspension Period).


 


(c)           On the Reversion Date, all
Indebtedness incurred during the Suspension Period will be classified to have
been incurred pursuant to Section 3.9(a) or Section 3.9(b) (to
the extent such Indebtedness would be permitted to be incurred thereunder as of
the Reversion Date and after giving effect to Indebtedness incurred prior to
the Suspension Period and outstanding on the Reversion Date).  To the extent such Indebtedness would not be
so permitted to be incurred pursuant to Section 3.9(a) or Section 3.9(b),
such Indebtedness will be deemed to have been outstanding on the Issue Date, so
that it is classified as permitted under Section 3.9(b)(4).  Calculations made after the Reversion Date of
the amount available to be made as Restricted Payments under Section 3.11
will be made as though Section 3.11 had been in effect since the
Issue Date and throughout the Suspension Period.


 


ARTICLE IV


 


SURVIVING ENTITY


 


Section 4.1             Merger,
Consolidation and Sale of Assets.


 


(a)           The Company shall not, in a single
transaction or series of related transactions, consolidate or merge with or
into any Person (whether or not the Company is the surviving or continuing
Person), or sell, assign, transfer, lease, convey or otherwise dispose of (or
cause or permit any Restricted Subsidiary to sell, assign, transfer, lease,
convey or otherwise dispose of) all or substantially all of the Company’s
properties and assets (determined on a consolidated basis for the Company and
its Restricted Subsidiaries), to any Person unless:


 


(1)           either:


 


(i)            the Company shall be the surviving
or continuing corporation, or


 


(ii)           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,


 


52





















 


conveyance or other disposition the properties and
assets of the Company and of the Company’s Restricted Subsidiaries
substantially as an entirety (the “Surviving Entity”):


 


(A)          shall be a corporation, organized and
validly existing under the laws of Mexico or the United States of America, any
State thereof or the District of Columbia, and


 


(B)           shall expressly assume, 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 Notes and the
performance and observance of every covenant of the Notes and this Indenture on
the part of the Company to be performed or observed;


 


(2)          immediately after giving effect to
such transaction and the assumption contemplated by Section (a)(1)(ii)(B) of
this Section 4.1 (including giving effect on a pro forma basis to
any Indebtedness, including any Acquired Indebtedness, Incurred or anticipated
to be Incurred in connection with or in respect of such transaction), the
Company or such Surviving Entity, as the case may be:


 


(i)            will be able to Incur at least
US$1.00 of additional Indebtedness pursuant to Section 3.9(a), or


 


(ii)           will have a Consolidated Fixed Charge
Coverage Ratio of not less than the Consolidated Fixed Charge Coverage Ratio of
the Company and its Restricted Subsidiaries immediately prior to such
transaction;


 


provided that provisions of the subsection (2)(i) above
shall not apply to:


 


(A)          any transfer of the properties or
assets of a Restricted Subsidiary to the Company or to a Subsidiary Guarantor;


 


(B)           any merger of a Restricted Subsidiary
into the Company or a Subsidiary Guarantor; or


 


(C)           any merger of the Company into a
Wholly Owned Subsidiary of the Company created for the purpose of holding the
Capital Stock of the Company;


 


so long as, in each case the Indebtedness of the Company and its
Restricted Subsidiaries taken as a whole is not increased thereby.


 


(3)          immediately before and immediately
after giving effect to such transaction and the assumption contemplated by Section (a)(1)(ii)(B) of
this Section 4.1 (including, without limitation, giving effect on a
pro forma basis to any Indebtedness, including any Acquired Indebtedness,
Incurred or anticipated to be Incurred and any Lien granted in connection with
or in respect of the transaction), no Default or Event of Default shall have
occurred or be continuing;


 


(4)          each Subsidiary Guarantor (including
Persons that become Subsidiary Guarantors as a result of the transaction) has
confirmed by supplemental indenture that its Note Guarantee will apply for the
Obligations of the Surviving Entity in respect of this Indenture and the Notes;


 


(5)          if the Company is organized under
Mexican law and merges with a corporation, or the Surviving Entity is,
organized under the laws of the United States, any State thereof or the
District of Columbia or the Company is organized under the laws of the United
States, any State thereof or the District of Columbia and merges with a
corporation, or the Surviving Entity is, organized under the laws of Mexico,
the Company or the Surviving Entity will have delivered to the Trustee an
Opinion of Counsel from each of Mexico and the United States to the effect
that, as applicable:


 


53


















 


(i)                                     the
holders of the Notes will not recognize income, gain or loss for U.S. or
Mexican income tax purposes as a result of the transaction and will be taxed in
the holder’s home jurisdiction in the same manner and on the same amounts
(assuming solely for this purpose that no Additional Amounts are regarded to be
paid on the Notes) and at the same times as would have been the case if the
transaction had not occurred,


 


(ii)                                  any
payment of interest or principal under or relating to the Notes or any Note
Guarantees will be paid in
compliance with any requirements under Section 3.21, and


 


(iii)                               no
other taxes on income, including capital gains, will be payable by holders of
the Notes under the laws of Mexico or the United States relating to the
acquisition, ownership or disposition of the Notes, including the receipt of
interest or principal thereon; provided that
the holder does not use or hold, and is not deemed to use or hold the Notes in
carrying on a business in Mexico or the United States, and


 


(6)                              the
Company or the Surviving Entity has delivered to the Trustee an Officers’
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,
comply with the applicable provisions of this Indenture and that all conditions
precedent herein relating to the transaction have been satisfied.


 


(b)                                 For
purposes of this Section 4.1, 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 Restricted
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 Restricted Subsidiaries), shall be
deemed to be the transfer of all or substantially all of the properties and
assets of the Company.


 


(c)                                  Upon
any consolidation, combination or merger or any transfer of all or
substantially all of the properties and assets of the Company and its
Restricted Subsidiaries in accordance with this Section 4.1, in
which the Company is not the continuing corporation, 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 this
Indenture and the Notes with the same effect as if such Surviving Entity had
been named as such.  For the avoidance of
doubt, compliance with this Section 4.1 will not affect the
obligations of the Company (including a Surviving Entity, if applicable) under Section 3.8,
if applicable.


 


(d)                                 Each
Subsidiary Guarantor shall not, and the Company shall not cause or permit any
Subsidiary Guarantor to, consolidate with or merge into, or sell or dispose of
all or substantially all of its assets to, any Person (other than the Company)
that is not a Subsidiary Guarantor unless:


 


(1) such Person (if such
Person is the surviving entity) assumes all of the obligations of such
Subsidiary Guarantor in respect of its Note Guarantee by executing a
supplemental indenture and providing the Trustee with an Officers’ Certificate
and Opinion of Counsel, and such transaction is otherwise in compliance
herewith;


 


(2) such Note Guarantee
is to be released as provided under Section 10.2 or


 


(3) such sale or other
disposition of substantially all of such Subsidiary Guarantor’s assets is made
in accordance with Section 3.12.


 


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ARTICLE V



OPTIONAL REDEMPTION OF NOTES


 


Section 5.1                                      Optional
Redemption.  The Company may redeem
the Notes, as a whole or from time to time in part, subject to the conditions
and at the redemption prices specified in the form of Notes in Exhibit A.


 


Section 5.2                                      Election to
Redeem.  The Company shall evidence
its election to redeem any Notes pursuant to Section 5.1 by a Board
Resolution.


 


Section 5.3                                      Notice of
Redemption.


 


(a)                                  The
Company shall give or cause the Trustee to give notice of redemption, in the
manner provided for in Section 11.2, not less than 30 nor more than
60 days prior to the Redemption Date by first-class mail, postage prepaid, to
each Holder of Notes to be redeemed at its registered address.  If the Company itself gives the notice, it
shall also deliver a copy to the Trustee.


 


(b)                                 If
either (i) the Company is not redeeming all Outstanding Notes, or (ii) the
Company elects to have the Trustee give notice of redemption, then the Company
shall deliver to the Trustee, at least 45 days prior to the Redemption Date
(unless the Trustee is satisfied with a shorter period), an Officers’
Certificate requesting that the Trustee select the Notes to be redeemed and/or
give notice of redemption and setting forth the information required by
paragraph (c) of this Section 5.3 (with the exception of
the identification of the particular Notes, or portions of the particular
Notes, to be redeemed in the case of a partial redemption).  If the Company elects to have the Trustee
give notice of redemption, the Trustee shall give the notice in the name of the
Company and at the Company’s expense.


 


(c)                                  All
notices of redemption shall state:


 


(1) the Redemption Date,


 


(2) the redemption price
and the amount of any accrued interest payable as provided in Section 5.6,


 


(3) whether or not the
Company is redeeming all Outstanding Notes,


 


(4) if the Company is not
redeeming all Outstanding Notes, the aggregate principal amount of Notes that
the Company is redeeming and the aggregate principal amount of Notes that will
be Outstanding after the partial redemption, as well as the identification of
the particular Notes, or portions of the particular Notes, that the Company is
redeeming,


 


(5) if the Company is
redeeming only part of a Note, the notice that relates to that Note shall state
that on and after the Redemption Date, upon surrender of that Note, the Holder
will receive, without charge, a new Note or Notes of authorized denominations
for the principal amount of the Note remaining unredeemed,


 


(6) that on the
Redemption Date the redemption price and any accrued interest payable to the
Redemption Date as provided in Section 5.6 will become due and
payable in respect of each Note, or the portion of each Note, to be redeemed,
and, unless the Company defaults in making the redemption payment, that
interest on each Note, or the portion of each Note, to be redeemed, will cease
to accrue on and after the Redemption Date,


 


55





















 


(7) the place or places
where a Holder must surrender the Holder’s Notes for payment of the redemption
price, and


 


(8) the CUSIP or ISIN
number, if any, listed in the notice or printed on the Notes, and that no
representation is made as to the accuracy or correctness of such CUSIP or ISIN
number.


 


Section 5.4                                      Selection
of Notes to Be Redeemed in Part.


 


(a)                                  If
the Company is not redeeming all Outstanding Notes, the Trustee shall select the
Notes to be redeemed in compliance with the requirements of the principal
national securities exchange, if any, on which the Notes are listed or, if the
Notes are not then listed on a national securities exchange, on a pro rata basis, by lot or any other method
as the Trustee shall deem fair and appropriate (subject to the procedures of
DTC); provided, however, that if
a partial redemption is made with the proceeds of a Equity Offering, selection
of the Notes, or portions of the Notes, for redemption shall, subject to this
Section, be made by the Trustee only on a pro
rata basis or on as nearly a pro
rata basis as is practicable (subject to the procedures of DTC),
unless that method is otherwise prohibited. 
The Trustee shall make the selection from the Outstanding Notes not
previously called for redemption.  The
Trustee shall promptly notify the Company in writing of the Notes selected for
redemption and, in the case of any Notes selected for partial redemption, the principal
amount of the Notes to be redeemed.  In
the event of a partial redemption by lot, the Trustee shall select the
particular Notes to be redeemed not less than 30 nor more than 60 days prior to
the relevant Redemption Date from the Outstanding Notes not previously called
for redemption.  The Company may redeem
Notes in denominations of US$1,000 only in whole.  The Trustee may select for redemption
portions (equal to US$1,000 or any integral multiple of US$1,000) of the
principal of Notes that have denominations larger than US$1,000.


 


(b)                                 For
all purposes of this Indenture, unless the context otherwise requires, all
provisions relating to redemption of Notes shall relate, in the case of any
Note redeemed or to be redeemed only in part, to the portion of the principal
amount of that Note which has been or is to be redeemed.


 


Section 5.5                                      Deposit of
Redemption Price.  Prior to 10:00 a.m.
New York City time on the relevant Redemption Date, the Company shall deposit
with the Trustee or with a Paying Agent (or, if the Company is acting as Paying
Agent, segregate and hold in trust as provided in Section 2.4) an
amount of money in immediately available funds sufficient to pay the redemption
price of, and accrued interest on, all the Notes that the Company is redeeming
on that date.


 


Section 5.6                                      Notes Payable
on Redemption Date.  If the Company,
or the Trustee on behalf of the Company, gives notice of redemption in
accordance with this Article V, the Notes, or the portions of
Notes, called for redemption, shall, on the Redemption Date, become due and payable
at the redemption price specified in the notice (together with accrued
interest, if any, to the Redemption Date), and from and after the Redemption
Date (unless the Company shall default in the payment of the redemption price
and accrued interest) the Notes or the portions of Notes shall cease to bear
interest.  Upon surrender of any Note for
redemption in accordance with the notice, the Company shall pay the Notes at
the redemption price, together with accrued interest, if any, to the Redemption
Date (subject to the rights of Holders of record on the relevant record date to
receive interest due on the relevant Interest Payment Date).  If the Company shall fail to pay any Note
called for redemption upon its surrender for redemption, the principal shall,
until paid, bear interest from the Redemption Date at the rate borne by the
Notes.


 


Section 5.7                                      Unredeemed
Portions of Partially Redeemed Note. 
Upon surrender of a Note that is to be redeemed in part, the Company
shall execute, and the Trustee shall authenticate and make available for
delivery to the Holder of the Note at the expense of the Company, a new Note or
Notes, of any authorized denomination as requested by the Holder, in an
aggregate principal amount equal to, and in exchange for, the unredeemed
portion of the principal of the Note surrendered, provided that each new Note will be in a principal amount of
US$2,000 or integral multiple of US$1,000.


 


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ARTICLE VI



DEFAULTS AND REMEDIES


 


Section 6.1                                      Events of
Default.


 


(a)                                  Each
of the following is an “Event of Default”:


 


(1)                                  default
in the payment when due of the principal of or premium, if any, on any Notes,
including the failure to make a required payment to purchase Notes tendered
pursuant to an optional redemption, Change of Control Offer or an Asset Sale
Offer;


 


(2)                                  default
for 30 days or more in the payment when due of interest, Additional Amounts or
liquidated damages, if any, on any Notes;


 


(3)                                  the
failure to perform or comply with any of the provisions described under Section 4.1;


 


(4)                                  the
failure by the Company or any Restricted Subsidiary to comply with any other
covenant or agreement contained herein or in the Notes for 45 days or more
after written notice to the Company from the Trustee or the Holders of at least
25% in aggregate principal amount of the outstanding Notes;


 


(5)                                  default
by the Company or any Restricted Subsidiary under any Indebtedness which:


 


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


 


(2)                                  results
in the acceleration of such Indebtedness prior to its stated maturity;


 


and the principal or accreted amount of Indebtedness
covered by (i) or (ii) at the relevant time, aggregates
US$15 million or more;


 


(6)                                  failure
by the Company or any of its Restricted Subsidiaries to pay one or more final
judgments against any of them, aggregating US$15 million or more, which
judgment(s) are not paid, discharged or stayed for a period of 60 days or
more;


 


(7)                                  a
Bankruptcy Law Event of Default; or


 


(8)                                  except
as permitted herein, any Note Guarantee 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 Subsidiary Guarantor, or any Person acting on behalf of any
Subsidiary Guarantor, denies or disaffirms such Subsidiary Guarantor’s
obligations under its Note Guarantee.


 


(b)                                 The
Company shall deliver to the Trustee upon becoming aware of any Default or
Event of Default written notice of events which would constitute such Default
or Event of Default, their status and what action the Company is taking or
proposes to take in respect thereof.


 


Section 6.2                                      Acceleration.


 


(a)                                  If
an Event of Default (other than an Event of Default specified in Section 6.1(a)(7) above
with respect to the Company) shall occur and be continuing, the Trustee or the
Holders of at least 25% in


 


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principal amount
of outstanding Notes may declare the unpaid principal of (and premium, if any)
and accrued and unpaid interest on all the Notes to be immediately due and
payable by notice in writing to the Company and the Trustee specifying the
Event of Default and that it is a “notice of acceleration.”  If an Event of Default specified in Section 6.1(a)(7) above
occurs with respect to the Company, then the unpaid principal of (and premium,
if any) and accrued and unpaid interest on all the Notes shall 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 a declaration of acceleration with respect to the Notes as
described in Section 6.2(a), the Holders of a majority in principal
amount of the Notes 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


 


(4)                                  if
the Company has paid the Trustee its reasonable compensation and reimbursed the
Trustee for its reasonable expenses (including the fees and expenses of its
counsel), disbursements and advances.


 


No rescission shall
affect any subsequent Default or impair any rights relating thereto.


 


Section 6.3                                      Other Remedies.


 


(a)                                  If
an Event of Default occurs and is continuing, the Trustee may pursue any
available remedy to collect the payment of principal of and interest on the
Notes or to enforce the performance of any provision of the Notes or this
Indenture.


 


(b)                                 The
Trustee may maintain a proceeding even if it does not possess any of the Notes
or does not produce any of them in the proceeding.  A delay or omission by the Trustee or any
Holder in exercising any right or remedy accruing upon an Event of Default
shall not impair the right or remedy or constitute a waiver of or acquiescence
in the Event of Default.  No remedy is
exclusive of any other remedy.  All
available remedies are cumulative to the extent permitted by law.


 


Section 6.4                                      Waiver of Past
Defaults.  The Holders of a majority
in principal amount of the Notes may waive any existing Default or Event of
Default hereunder, and its consequences, except a default in the payment of the
principal of, premium, if any, or interest on any Notes.


 


Section 6.5                                      Control by
Majority.  Subject to the provisions
of this Indenture and applicable law, the Holders of a majority in aggregate
principal amount of the outstanding Notes may direct the time, method and place
of conducting any proceeding for any remedy available to the Trustee or of
exercising any trust or power conferred on the Trustee.


 


Section 6.6                                      Limitation on Suits.


 


(a)                                  No
Holder of any Notes shall have any right to institute any proceeding with
respect hereto or for any remedy hereunder, unless:


 


(1)                                  such
Holder gives to the Trustee written notice of a continuing Event of Default;


 


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(2)                                  Holders
of at least 25% in principal amount of the then outstanding Notes make a
written request to pursue the remedy;


 


(3)                                  such
Holders of the Notes provide to the Trustee satisfactory indemnity;


 


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


 


(5)                                  during
such 60 day period the Holders of a majority in principal amount of the
outstanding Notes 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 Note may institute suit for enforcement of payment of the principal
of and premium, if any, or interest on such Note on or after the respective due
dates expressed in such Note.


 


Section 6.7                                      Rights of
Holders to Receive Payment. 
Notwithstanding any other provision hereof (including, without
limitation, Section 6.6), the right of any Holder to receive
payment of principal of or interest on the Notes held by such Holder, on or
after the respective due dates, Redemption Dates or repurchase date expressed
herein or the Notes, or to bring suit for the enforcement of any such payment
on or after such respective dates, shall not be impaired or affected without
the consent of such Holder.


 


Section 6.8                                      Collection
Suit by Trustee.  If an Event of
Default specified in Section 6.1(a)(1) and Section 6.1(a)(2) occurs
and is continuing, the Trustee may recover judgment in its own name and as
trustee of an express trust against the Company and each Subsidiary Guarantor
for the whole amount then due and owing (together with applicable interest on
any overdue principal and, to the extent lawful, interest on overdue interest)
and the amounts provided for in Section 7.7.  Subject to all provisions hereof and
applicable law, the Holders of a majority in aggregate principal amount of the
then outstanding Notes 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 6.9                                      Trustee May File
Proofs of Claim, etc.


 


(a)                                  The
Trustee may (irrespective of whether the principal of the Notes is then due):


 


(1)                                  file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee and the Holders under this
Indenture and the Notes allowed in any bankruptcy, insolvency, liquidation or
other judicial proceedings relative to the Company, any Subsidiary Guarantor or
any Subsidiary of the Company or their respective creditors or properties; and


 


(2)                                  collect
and receive any moneys or other property payable or deliverable in respect of
any such claims and distribute them in accordance with this Indenture.


 


Any receiver, trustee, liquidator, sequestrator (or
other similar official) in any such proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay to
the Trustee any amount due to it for the reasonable compensation, expenses,
taxes, disbursements and advances of the Trustee, its agent and counsel, and
any other amounts due to the Trustee pursuant to Section 7.7.


 


(b)                                 Nothing
in this Indenture shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.


 


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Section 6.10                                Priorities.  If the Trustee collects any money or property
pursuant to this Article VI, it shall pay out the money or property
in the following order:


 


FIRST:  to the
Trustee for amounts due under Section 7.7;


 


SECOND:  if the
Holders proceed against the Company directly without the Trustee in accordance
with this Indenture, to Holders for their collection costs;


 


THIRD:  to
Holders for amounts due and unpaid on the Notes for principal and interest,
ratably, without preference or priority of any kind, according to the amounts
due and payable on the Notes for principal and interest, respectively; and


 


FOURTH:  to the
Company or, to the extent the Trustee collects any amount pursuant to Article X
from any Subsidiary Guarantor, to such Subsidiary Guarantor, or to such party
as a court of competent jurisdiction shall direct.


 


The Trustee may, upon notice to the Company, fix a
record date and payment date for any payment to Holders pursuant to this Section 6.10.


 


Section 6.11                                Undertaking for
Costs.  In any suit for the
enforcement of any right or remedy under this Indenture or in any suit against
the Trustee for any action taken or omitted by it as Trustee, a court in its
discretion may require the filing by any party litigant in the suit of an
undertaking to pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys’ fees, against any
party litigant in the suit, having due regard to the merits and good faith of
the claims or defenses made by the party litigant.  This Section 6.11 does not apply
to a suit by the Trustee, a suit by the Company, a suit by a Holder pursuant to
Section 6.7 or a suit by Holders of more than 10% in principal
amount of Outstanding Notes.


 


ARTICLE VII



TRUSTEE


 


Section 7.1                                      Duties of
Trustee.


 


(a)                                  If
a Default or an Event of Default has occurred and is continuing, the Trustee
shall exercise the rights and powers vested in it by this Indenture and use the
same degree of care and skill in their exercise as a prudent man would exercise
or use under the circumstances in the conduct of his own affairs.


 


(b)                                 Except
during the continuance of a Default or an Event of Default:


 


(1) the Trustee
undertakes to perform such duties and only such duties as are specifically set
forth in this Indenture 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,
in the case of any such certificates or opinions which by any provisions hereof
are specifically required to be furnished to the Trustee, the Trustee shall
examine such certificates and opinions to determine whether or not they conform
to the requirements of this Indenture.


 


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


 


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(1) this paragraph (c) does
not limit the effect of paragraph (b) of this Section 7.1;


 


(2) the Trustee shall not
be liable for any error of judgment made in good faith by a Trust 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 6.2,
Section 6.5 or Section 6.8.


 


(d)                                 The
Trustee shall not be liable for interest on any money received by it except as
the Trustee may agree in writing with the Company.


 


(e)                                  Money
held in trust by the Trustee need not be segregated from other funds except to
the extent required by law.


 


(f)                                    No
provision hereof shall require the Trustee to expend or risk its own funds or
otherwise incur financial liability in the performance of any of its duties
hereunder or in the exercise of any of its rights or powers, if it shall have
reasonable grounds to believe that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.


 


(g)                                 Every
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be subject to the provisions of
this Article VII and to the provisions of the TIA.


 


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


 


(i)                                     The
Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Indenture at the request, order or direction of any of the
Holders unless such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses (including reasonable
attorneys’ fees and expenses) and liabilities that might be incurred by it in
compliance with such request or direction.


 


Section 7.2                                      Rights of
Trustee.  Subject to Section 7.1:


 


(a)                                  The
Trustee may rely on any document reasonably 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 the document.


 


(b)                                 Before
the Trustee acts or refrains from acting at the direction of the Company or any
Subsidiary Guarantor, it may require an Officers’ Certificate or an Opinion of
Counsel.  The Trustee shall not be liable
for any action it takes or omits to take in good faith in reliance on an
Officers’ Certificate or Opinion of Counsel.


 


(c)                                  The
Trustee may act through its attorneys and agents and shall not be responsible
for the misconduct or negligence of any agent 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; provided, however, that the Trustee’s
conduct does not constitute willful misconduct or negligence.


 


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(e)                                  The
Trustee may consult with counsel of its selection, and the advice or opinion of
counsel with respect to legal matters relating to this Indenture and the Notes
shall be full and complete authorization and protection from liability in
respect to any action taken, omitted or suffered by it hereunder in good faith
and in accordance with the advice or opinion of such counsel.


 


(f)                                    If
the Trustee shall determine, it shall be entitled to examine the books, records
and premises of the Company, personally or by agent or attorney.


 


(g)                                 The
Trustee shall not be deemed to have notice of any Default or Event of Default
(other than payment default under Section 6.1 (a)(1) or (2))
unless a Trust 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 Notes and this Indenture.


 


(h)                                 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,
and to each agent, custodian and other Person employed to act hereunder.


 


(i)                                     The
Trustee may request that the Company deliver an Officers’ Certificate setting
forth the names of individuals and/or titles of officers authorized at such
time to take specified actions pursuant to this Indenture, which Officers’
Certificate may be signed by any person authorized to sign an Officers’
Certificate, including any person specified as so authorized in any such
certificate previously delivered and not superseded.


 


Section 7.3                                      Individual
Rights of Trustee.  The Trustee in
its individual or any other capacity may become the owner or pledgee of Notes
and may otherwise deal with the Company, the Subsidiary Guarantors or any of
their Affiliates with the same rights it would have if it were not
Trustee.  Any Paying Agent, Registrar or
co-Registrar may do the same with like rights. 
However, the Trustee must comply with Section 7.10 and Section 7.11.


 


Section 7.4                                      Trustee’s
Disclaimer.  The Trustee shall not be
responsible for and makes no representation as to the validity or adequacy of
this Indenture or the Notes or the Note Guarantees, it shall not be accountable
for the Company’s use of the proceeds from the Notes, and it shall not be
responsible for any statement of the Company in this Indenture or in any
document issued in connection with the sale of the Notes or in the Notes other
than the Trustee’s certificate of authentication.


 


Section 7.5                                      Notice of
Defaults.  If a Default or Event of
Default occurs and is continuing and if it is a payment default or a Trust
Officer has actual knowledge thereof, or has received written notice thereof
pursuant to 7.3(g) above the Trustee shall mail to each Holder notice of
the Default or Event of Default within 90 days after the occurrence thereof.  Except in the case of a Default or Event of
Default in the payment of principal of, premium, if any, or interest on any
Note, the Trustee may withhold the notice if and so long as its Trust Officer
in good faith determines that withholding the notice is in the interests of the
Holders.


 


Section 7.6                                      Reports by
Trustee to Holders.  The Trustee
shall comply with TIA § 313.  The
Company agrees to notify promptly the Trustee whenever the Notes become listed
on any stock exchange and of any delisting thereof.


 


Section 7.7                                      Compensation
and Indemnity.


 


(a)                                  The
Company shall pay to the Trustee from time to time reasonable compensation for
its acceptance of this Indenture and services hereunder as the Company and the
Trustee shall from time to time agree in writing.  The Company shall pay the reasonable fees and
expenses of White & Case, the Trustee’s counsel, incurred in the
review, negotiation and delivery of this Indenture and related documentation,
and in connection with any amendments or supplements hereto.  The Trustee’s compensation shall not be
limited by any law on compensation of a trustee of an express trust.  The Company shall reimburse the Trustee upon
request for all reasonable out-of-pocket expenses incurred or made by it,
including costs of collection, costs of preparing and reviewing reports,
certificates and other documents, costs of preparation and mailing of notices
to Holders and reasonable fees and


 


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expenses of
counsel retained by the Trustee, in addition to the compensation for its
services.  Such expenses shall include
the reasonable compensation and expenses, disbursements and advances of the
Trustee’s agents, counsel, accountants and experts.


 


(b)                                 The
Company and the Subsidiary Guarantors shall jointly and severally indemnify the
Trustee against any and all loss, liability or expense (including reasonable
attorneys’ fees and expenses) incurred by it without negligence, willful
misconduct or bad faith on its part in connection with the acceptance and
administration of this trust and the performance of its duties hereunder,
including the costs and expenses of enforcing this Indenture (including this Section 7.7)
and of defending itself against any claims (whether asserted by any Holder, the
Company, any Subsidiary Guarantor or otherwise).  The Trustee shall notify the Company promptly
of any claim for which it may seek indemnity. 
Failure by the Trustee to so notify the Company shall not relieve the
Company of its obligations hereunder. 
The Company shall defend the claim and the Trustee may have separate
counsel and the Company shall pay the fees and expenses of such counsel, provided that the Company shall not be
required to pay such fees and expenses if it assumes the Trustee’s defense,
and, in the reasonable judgment of outside counsel to the Trustee, there is no
conflict of interest between the Company and the Trustee in connection with
such defense.  The Company need not
reimburse any expense or indemnify against any loss, liability or expense
incurred by the Trustee through the Trustee’s own negligence, willful
misconduct or bad faith, as determined by a competent court of appropriate
jurisdiction in a final, non-appealable judgment.


 


(c)                                  To
secure the Company’s payment obligations in this Section 7.7, the
Trustee shall have a lien prior to the Notes on all money or property held or
collected by the Trustee other than money or property held in trust to pay
principal of and interest on particular Notes. 
The Trustee’s right to receive payment of any amounts due under this Section 7.7
shall not be subordinate to any other liability or Indebtedness of the Company.


 


(d)                                 The
Company’s payment obligations pursuant to this Section 7.7 shall
survive the discharge of this Indenture and the resignation or removal of the
Trustee.  When the Trustee incurs
expenses after the occurrence of a Bankruptcy Law Event of Default, the
expenses are intended to constitute expenses of administration under any
Bankruptcy Law; provided, however,
that this shall not affect the Trustee’s rights as set forth in this Section 7.7
or Section 6.10.


 


Section 7.8                                      Replacement
of Trustee.


 


(a)                                  The
Trustee may resign at any time by so notifying the Company.  The Holders of a majority in principal amount
of the Outstanding Notes may remove the Trustee by so notifying the Trustee and
may appoint a successor Trustee reasonably acceptable to the Company.  The Company shall remove the Trustee if:


 


(1) the Trustee fails to
comply with Section 7.10;


 


(2) the Trustee is
adjudged bankrupt or insolvent;


 


(3) a receiver or other
public officer takes charge of the Trustee or its property; or


 


(4) the Trustee otherwise
becomes incapable of acting.


 


(b)                                 If
the Trustee resigns or is removed by the Company or by the Holders of a
majority in principal amount of the Outstanding Notes and such Holders do not
reasonably promptly appoint a successor Trustee, or if a vacancy exists in the
office of the Trustee for any reason (the Trustee in such event being referred
to herein as the retiring Trustee), the Company shall promptly appoint a
successor Trustee.


 


(c)                                  A
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 Trustee under this Indenture. 
The


 


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successor Trustee
shall mail a notice of its succession to Holders.  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 7.7.


 


(d)                                 If
a successor Trustee does not take office within 30 days after the retiring
Trustee resigns or is removed, the retiring Trustee or the Holders of 10% in
principal amount of the Outstanding Notes may petition, at the Company’s
expense, any court of competent jurisdiction for the appointment of a successor
Trustee.


 


(e)                                  If
the Trustee fails to comply with Section 7.10, any Holder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.


 


(f)                                    Notwithstanding
the replacement of the Trustee pursuant to this Section 7.8, the
Company’s obligations under Section 7.7 shall continue for the
benefit of the retiring Trustee.


 


Section 7.9                                      Successor
Trustee by Merger.


 


(a)                                  If
the Trustee consolidates with, merges or converts into, or transfers all or
substantially all its corporate trust business or assets to, another
corporation or banking association, the resulting, surviving or transferee
corporation without any further act shall be the successor Trustee.


 


(b)                                 In
case at the time such successor or successors to the Trustee shall succeed to
the trusts created by this Indenture, any of the Notes shall have been
authenticated but not delivered, any such successor to the Trustee may adopt
the certificate of authentication of any predecessor trustee, and deliver such
Notes so authenticated; and in case at that time any of the Notes shall not
have been authenticated, any successor to the Trustee may authenticate such
Notes 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 Notes or in this Indenture provided
that the certificate of the Trustee shall have.


 


Section 7.10                                Eligibility;
Disqualification.  The Trustee shall
at all times satisfy the requirements of TIA § 310(a).  The Trustee shall have a combined capital and
surplus of at least US$150 million as set forth in its most recent published
annual report of condition.  The Trustee
shall comply with TIA § 310(b); provided,
however, that there shall be excluded from the operation of TIA § 310(b)(1) any
indenture or indentures under which other securities or certificates of
interest or participation in other securities of the Company are outstanding if
the requirements for such exclusion set forth in TIA § 310(b)(1) are
met.


 


Section 7.11                                Preferential
Collection of Claims Against Company. 
The Trustee shall comply with TIA § 311(a), excluding any creditor
relationship listed in TIA § 311(b). 
A Trustee who has resigned or been removed shall be subject to TIA § 311(a) to
the extent indicated.


 


Section 7.12                                Appointment of
Co-Trustee.


 


(a)                                  Notwithstanding
any other provisions in this Indenture, at any time, solely for the purpose of
meeting the legal requirements of any jurisdiction, the Trustee shall have the
power and may execute and deliver all instruments necessary to appoint one or
more Persons to act as separate trustee or trustees or as co-trustee or
co-trustees, and to vest in such Person or Persons, in such capacity and
subject to the other provisions of this Indenture, such powers, duties,
obligations and rights as the Trustee may consider necessary or desirable.  No co-trustee hereunder shall be required to
meet the terms of eligibility as a successor trustee under this Indenture and
no notice to Holders of Notes of the appointment of a separate trustee or
co-trustee shall be required under this Indenture.


 


(b)                                 Every
separate trustee or co-trustee shall, to the extent permitted by law, be
appointed and act subject to the following provisions and conditions:


 


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(i)                                     all
rights, powers, duties and obligations conferred or imposed upon the Trustee
shall be conferred or imposed upon and exercised or performed by the Trustee
and such separate trustee or co-trustee jointly (it being understood that such
separate trustee or co-trustee is not authorized to act separately without the
Trustee joining in such act), except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed the
Trustee shall be incompetent or unqualified to perform such act or acts, in
which event such rights, powers, duties and obligations shall be exercised and
performed singly by such co-trustee, but solely at the direction of the
Trustee;


 


(ii)                                  no
trustee hereunder shall be personally liable by reason of any act or omission
of any other trustee hereunder; and


 


(iii)                               the
Trustee may at any time accept the resignation of or remove any separate
trustee or co-trustee.


 


(c)                                  Any
notice, request or other writing given to the Trustee shall be deemed to have
been given to each of the then separate trustees or co-trustees, as effectively
as if given to each of them.  Every
instrument appointing any separate trustee or co-trustee shall refer to this Indenture
and the conditions of this Article VII.  Each separate trustee or co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, jointly with the Trustee,
subject to all the provisions of this Indenture, specifically including every
provision of this Indenture relating to the conduct of, affecting the liability
of, or affording protection or rights (including the rights to compensation,
reimbursement and indemnification hereunder) to, the Trustee.  Every such instrument shall be filed with the
Trustee.


 


(d)                                 Any
separate trustee or co-trustee may at any time constitute the Trustee or its
agent or attorney-in-fact with full power and authority, to the extent not
prohibited by law, to do any lawful act under or in respect of this Indenture
on its behalf and in its name.  If any
separate trustee or co-trustee shall die, become incapable of acting, resign or
be removed, all of its estates, properties, rights, remedies and trusts shall
vest in and be exercised by the Trustee, to the extent permitted by law,
without the appointment of a new or successor trustee.


 


Section 7.13                                Luxembourg Paying
Agent.  The rights, protections and
immunities granted to the Trustee under this Article VII shall apply mutatis mutandis to the Luxembourg Paying
Agent.


 


ARTICLE VIII



DEFEASANCE; DISCHARGE OF INDENTURE


 


Section 8.1                                      Legal
Defeasance and Covenant Defeasance.


 


(a)                                  The
Company may, at its option, at any time, elect to have either paragraph (b) or (c) of
this Section 8.1 be applied to its obligations with respect to all
outstanding Notes and all obligations of the Subsidiary Guarantors under the
Note Guarantees upon compliance with the conditions set forth in Section 8.2.


 


(b)                                 Upon
the Company’s exercise under paragraph (a) of this Section 8.1
of the option applicable to this paragraph (b), the Company shall, subject
to the satisfaction of the conditions set forth in Section 8.2, be
deemed to have paid and discharged the entire indebtedness represented by the
outstanding Notes and Note Guarantees after the deposit specified in Section 8.2(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 Notes,
which shall thereafter be deemed to be Outstanding only for the purposes of Section 8.3
and the other Sections of this Indenture referred to in clause (i) or (ii) of
this paragraph (b), and to have satisfied all its other obligations under
such Notes 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:


 


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(i)                                     the
rights of Holders to receive payments in respect of the principal of, premium,
if any, and interest on the Notes when such payments are due,


 


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


 


(iii)                               the
rights, powers, trusts, duties and immunities of the Trustee hereunder and the
Company’s and the Subsidiary Guarantors’ obligations in connection therewith,
and


 


(iv)                              this
Article VIII.


 


Subject to compliance with this Article VIII,
the Company may exercise its option under this paragraph (b) notwithstanding
the prior exercise of its option under paragraph (c) of this Section 8.1.


 


(c)                                  Upon
the Company’s exercise under paragraph (a) of this Section 8.1
of the option applicable to this paragraph (c), the Company may, at its
option and at any time, elect to have its obligations and the obligations of
the Subsidiary Guarantors, subject to the satisfaction of the applicable
conditions set forth in Section 8.2, released from obligations
under the covenants (including, without limitations contained in Sections 3.4,
3.5, 3.8, 3.9, 3.10, 3.11, 3.12, 3.13, 3.14, 3.15, 3.16, 3.17, 3.18, 3.19,
3.20, 3.21, 3.22 and 4.1(a)(2) with respect to the Outstanding Notes
on and after the date the conditions set forth below are satisfied
(hereinafter, “Covenant Defeasance”), and the Notes 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 Notes shall not be
deemed Outstanding for accounting purposes). 
For this purpose, such Covenant Defeasance means that, with respect to
the Outstanding Notes, 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
herein 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 Notes or the Note Guarantees under Section 6.1(a)(3) (except
in respect of a failure to perform under or comply with Section 4.1(c),
Section 6.1(a)(4) or Section 6.1(a)(5)), but,
except as specified above, the remainder hereof and such Notes shall be
unaffected thereby.


 


Section 8.2                                      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 will be sufficient without reinvestment, in the opinion of a
nationally recognized investment bank, appraisal firm or firm of independent
public accountants, to pay the principal of, premium, if any, and interest
(including Additional Amounts) on the Notes 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 counsel in the United States reasonably acceptable to
the Trustee (subject to customary exceptions and exclusions) 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 Issue Date, there has been a change in the applicable U.S. federal
income tax law,


 


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in either case to the effect that, and based thereon
such Opinion of Counsel shall state that, the Holders 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 in the United States reasonably acceptable to the Trustee
(subject to customary exceptions and exclusions) to the effect that the Holders
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)                                 in
the case of Legal Defeasance or Covenant Defeasance, the Company has delivered
to the Trustee:


 


(1)                                  an
Opinion of Counsel from counsel in Mexico reasonably acceptable to the Trustee
(subject to customary exceptions and exclusions) and independent of the Company
to the effect that, based upon Mexican law then in effect, Holders will not
recognize income, gain or loss for Mexican tax purposes, including withholding
tax except for withholding tax then payable on interest payments due, as a
result of Legal Defeasance or Covenant Defeasance, as the case may be, and will
be subject to Mexican taxes on the same amounts and in the same manner and at
the same time as would have been the case if such Legal Defeasance or Covenant
Defeasance, as the case may be, had not occurred, or


 


(2)                                  a
ruling directed to the Trustee received from the tax authorities of Mexico to
the same effect as the Opinion of Counsel described in clause (1) above;


 


(e)                                  no
Default or Event of Default shall have occurred and be continuing on the date
of the deposit pursuant to Section 8.2(a) (except any Default
or Event of Default resulting from the failure to comply with Section 3.9
as a result of the borrowing of the funds required to effect such deposit);


 


(f)                                    the
Trustee has received an Officers’ Certificate stating that such Legal
Defeasance or Covenant Defeasance shall 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;


 


(g)                                 the
Company has delivered to the Trustee an Officers’ 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;


 


(h)                                 the
Company has delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel from counsel reasonably acceptable to the Trustee (subject to customary
exceptions and exclusions) 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


 


(i)                                     the
Company has delivered to the Trustee an Opinion of Counsel from 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 8.3                                      Application of
Trust Money.  The Trustee shall hold
in trust U.S. Legal Tender or U.S. Government Obligations deposited with it
pursuant to this Article VIII. 
It shall apply the deposited money and the


 


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U.S. Legal Tender
from U.S. Government Obligations through the Paying Agent and in accordance
with this Indenture to the payment of principal of and interest on the Notes.


 


Section 8.4                                      Repayment to
Company.


 


(a)                                  The
Trustee and the Paying Agent shall promptly turn over to the Company upon
request any excess money or securities held by them upon payment of all the
obligations under this Indenture.


 


(b)                                 Subject
to any applicable abandoned property law, the Trustee and the Paying Agent
shall pay to the Company upon request any money held by them for the payment of
principal of or interest on the Notes that remains unclaimed for two years,
and, thereafter, Holders entitled to the money must look to the Company for
payment as general creditors.


 


Section 8.5                                      Indemnity for
U.S. Government Obligations.  The
Company shall pay and shall indemnify the Trustee against any tax, fee or other
charge imposed on or assessed against deposited U.S. Government Obligations or
the principal and interest received on such U.S. Government Obligations.


 


Section 8.6                                      Reinstatement.  If the Trustee or Paying Agent is unable to
apply any U.S. Legal Tender or U.S. Government Obligations in accordance with
this Article VIIII 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 and the Notes shall be revived and reinstated as
though no deposit had occurred pursuant to this Article VIIII until
such time as the Trustee or Paying Agent is permitted to apply all such U.S.
Legal Tender or U.S. Government Obligations in accordance with this Article VIIII;
provided, however, that, if the
Company has made any payment of principal of or interest on any Notes because
of the reinstatement of its obligations, the Company shall be subrogated to the
rights of the Holders of such Notes to receive such payment from the U.S. Legal
Tender or U.S. Government Obligations held by the Trustee or Paying Agent.


 


Section 8.7                                      Satisfaction
and Discharge.  This Indenture will
be discharged and will cease to be of further effect (except as to surviving
rights or registration of transfer or exchange of the Notes, as expressly
provided for herein) as to all Outstanding Notes when:


 


(a)                                  either:


 


(1)                                  all
the Notes theretofor, authenticated and delivered (except lost, stolen or
destroyed Notes which have been replaced or paid and Notes 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
Notes not theretofor delivered to the Trustee for cancellation have become due
and payable, and the Company has irrevocably deposited or caused to be
deposited with the Trustee funds or certain U.S. Government Obligations
sufficient without reinvestment to pay and discharge the entire Indebtedness on
the Notes not theretofor delivered to the Trustee for cancellation, for
principal of, premium, if any, and interest on the Notes to the date of
deposit, 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 Notes by
the Company; and


 


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


 


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ARTICLE IX



AMENDMENTS


 


Section 9.1                                      Without
Consent of Holders.


 


(a)                                  The
Company, the Subsidiary Guarantors and the Trustee may amend this Indenture,
the Notes or the Note Guarantees without notice to or consent of any Holder:


 


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


 


(2)                                  to
provide for the assumption by a Surviving Entity of the obligations of the
Company under the Notes or a Subsidiary Guarantor obligation under the Note
Guarantee in the case of a merger or consolidation or sale of all or
substantially all of the Company’s or such Subsidiary Guarantor’s assets, as
applicable, to the extent permitted under this Indenture;


 


(3)                                  to
provide for uncertificated Notes in addition to or in place of certificated
Notes; provided, however, that the
uncertificated Notes are issued in registered form for purposes of Section 163(f) of
the Code;


 


(4)                                  to
add guarantees with respect to the Notes or to secure the Notes;


 


(5)                                  to
allow any Subsidiary Guarantor to execute a supplemental indenture and/or a Note
Guarantee with respect to the Notes and to release Note Guarantors from the
Note Guarantee in accordance with the terms of this Indenture;


 


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


 


(7)                                  to
comply with any requirements of the SEC in order to effect or maintain the
qualification of this Indenture under the TIA;


 


(8)                                  to
conform the text of this Indenture, the Note Guarantees or the Notes to any
provision of the section ”Description of Notes” in the Offering Circular
to the extent that such provision in such “Description of Notes” was intended
to be a verbatim recitation of a provision of this Indenture or the Notes or
Note Guarantees;


 


(9)                                  to
comply with the requirements of any applicable securities depositary;


 


(10)                            to
make any change that provides any additional rights or benefits to the Holders
or that does not adversely affect the legal rights hereunder of any such Holder
and to provide for a successor Trustee in accordance with the terms hereof, to
otherwise comply with any requirement hereof;


 


(11)                            to
provide for the issuance of the Exchange Notes, which will have terms
substantially identical to the other Outstanding Notes except for the
requirement of a Private Placement Legend and related transfer restrictions
under the Securities Act and this Indenture and as to the applicability of
additional interest payable as provided in Section 2.14, and which
will be treated, together with any other Outstanding Notes, as a single issue
of securities;


 


(12)                            to
provide for the issuance of Additional Notes as permitted by Section 2.2(c) and Section 2.13,
which will have terms substantially identical to the other Outstanding Notes
except as specified in Section 2.13 or Section 2.14,
and which will be treated, together with any other Outstanding Notes, as a
single issue of securities;


 


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(13)                            to
provide for a successor Trustee in accordance with the terms of this Indenture;


 


(14)                            to
otherwise comply with any requirement of this Indenture; or


 


(15)                            to
make any other changes which do not adversely affect the rights of any of the
Holders in any material respect.


 


(b)                                 After
an amendment under this Section 9.1 becomes effective, the Company
shall mail to Holders a notice briefly describing such amendment.  The failure to give such notice to all
Holders, or any defect therein, shall not impair or affect the validity of an
amendment under this Section 9.1.


 


Section 9.2                                      With
Consent of Holders.


 


(a)                                  The
Company, the Subsidiary Guarantors and the Trustee may amend this Indenture or
the Notes without notice to any Holder but with the written consent of the
Holders of at least a majority in principal amount of the then Outstanding Notes
(including, without limitation, consents obtained in connection with a purchase
of, or tender offer or exchange offer for, Notes).  However, without the consent of each Holder
affected, an amendment may not:


 


(1) reduce the principal
amount of Notes 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,
including Defaulted Interest, on any Notes;


 


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


 


(4) make any Notes
payable in money other than that stated in the Notes;


 


(5) make any change in
the provisions of this Indenture entitling each Holder to receive payment of
principal of, premium, if any, and interest on such Note 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 Notes to waive Defaults or Events of Default;


 


(6) amend, change or
modify in any material respect any obligation of the Company to make and
consummate a Change of Control Offer in respect of a Change of Control that has
occurred or make and consummate an Asset Sale Offer with respect to any Asset
Sale that that has been consummated;


 


(7) eliminate or modify
in any manner the obligations of a Subsidiary Guarantor with respect to its
Note Guarantee, which adversely affects Holders in any material respect, except
as contemplated in this Indenture;


 


(8) make any change to Section 3.21
that adversely affects the rights of any Holder or amend the terms of the Notes
in a way that would result in a loss of exemption from Taxes; or


 


(9) make any change to
the provisions of this Indenture or the Notes that adversely affect the ranking
of the Notes.


 


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(b)                                 It
shall not be necessary for the consent of the Holders under this Section 9.2
to approve the particular form of any proposed amendment, supplement or waiver,
but it shall be sufficient if such consent approves the substance thereof.  The Trustee will be entitled to rely on such
evidence as it deems appropriate, including solely on an Opinion of Counsel and
Officers’ Certificate, and shall have no liability whatsoever in reliance upon
the foregoing.


 


(c)                                  After
an amendment, supplement or waiver under this Section 9.2 becomes
effective, the Company shall mail to Holders a notice briefly describing such amendment,
supplement or waiver.  The failure to
give such notice to all Holders, or any defect therein, shall not impair or
affect the validity of an amendment, supplement or waiver under this Section 9.2.


 


Section 9.3                                      Compliance
with Trust Indenture Act.  Every
amendment to this Indenture or the Notes shall comply with the TIA as then in
effect.


 


Section 9.4                                      Revocation and
Effect of Consents and Waivers.


 


(a)                                  A
consent to an amendment, supplement or waiver by a Holder of a Note shall bind
the Holder and every subsequent Holder of that Note or portion of the Note that
evidences the same debt as the consenting Holder’s Note, even if notation of
the consent or waiver is not made on the Note. 
However, any such Holder or subsequent Holder may revoke the consent or
waiver as to such Holder’s Note or portion of the Note if the Trustee receives
the notice of revocation before the date the amendment, supplement or waiver
becomes effective.  After an amendment,
supplement or waiver becomes effective, it shall bind every Holder, except as
otherwise provided in this Article IX.  An amendment, supplement or waiver shall
become effective upon receipt by the Trustee of the requisite number of written
consents under Section 9.2.


 


(b)                                 The
Company may, but shall not be obligated to, fix a record date, which need not
be the date provided in TIA § 316(c) to the extent it would otherwise
be applicable, for the purpose of determining the Holders entitled to give
their consent or take any other action described above or required or permitted
to be taken pursuant to this Indenture. 
If a record date is fixed, then notwithstanding the immediately
preceding paragraph, those Persons who were Holders at such record date (or
their duly designated proxies), and only those Persons, shall be entitled to
give such consent or to revoke any consent previously given or to take any such
action, whether or not such Persons continue to be Holders after such record
date.  No such consent shall be valid or
effective for more than 90 days after such record date.


 


Section 9.5                                      Notation on or
Exchange of Notes.  If an amendment
or supplement changes the terms of a Note, the Trustee may require the Holder
of the Note to deliver it to the Trustee. 
The Trustee may place an appropriate notation on the Note regarding the
changed terms and return it to the Holder. 
Alternatively, if the Company or the Trustee so determines, the Company
in exchange for the Note will execute and upon Company Order the Trustee will
authenticate a new Note that reflects the changed terms.  Failure to make the appropriate notation or
to issue a new Note shall not affect the validity of such amendment or
supplement.


 


Section 9.6                                      Trustee to
Sign Amendments and Supplements.  The
Trustee shall sign any amendment or supplement authorized pursuant to this Article IX
if the amendment or supplement does not adversely affect the rights, duties,
liabilities or immunities of the Trustee. 
If it does, the Trustee may but need not sign it.  In signing such amendment or supplement the
Trustee shall be entitled to receive indemnity reasonably satisfactory to it
and to receive, and (subject to Section 7.1 and Section 7.2)
shall be fully protected in relying upon, such evidence as it deems
appropriate, including, without limitation, solely on an Opinion of Counsel
stating that such amendment or supplement is authorized or permitted hereby.


 


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ARTICLE X



NOTE GUARANTEES


 


Section 10.1                                Note Guarantees.


 


(a)                                  Each
Subsidiary Guarantor hereby fully, unconditionally and irrevocably guarantees,
as primary obligor and not merely as surety, jointly and severally with each
other Subsidiary Guarantor, to each Holder and the Trustee the full and
punctual payment when due, whether at maturity, by acceleration, by redemption
or otherwise, of the Obligations (such guaranteed Obligations, the “Guaranteed
Obligations”).  Each Subsidiary
Guarantor further agrees (to the extent permitted by law) that the Obligations
may be extended or renewed, in whole or in part, without notice or further
assent from it, and that it will remain bound under this Article X
notwithstanding any extension or renewal of any Obligation.  Each Subsidiary Guarantor hereby agrees to
pay, in addition to the amounts stated above, any and all expenses (including
reasonable counsel fees and expenses) incurred by the Trustee or the Holders in
enforcing any rights under any Note Guarantee.


 


(b)                                 Each
Subsidiary Guarantor waives presentation to, demand of payment from and protest
to the Company of any of the Obligations and also waives notice of protest for
nonpayment.  Each Subsidiary Guarantor
waives notice of any default under the Notes or the Obligations.  The obligations of each Subsidiary Guarantor
hereunder shall not be affected by (i) the failure of any Holder to assert
any claim or demand or to enforce any right or remedy against the Company or
any other Person under this Indenture, the Notes or any other agreement or
otherwise; (ii) any extension or renewal of any thereof; (iii) any
rescission, waiver, amendment or modification of any of the terms or provisions
of this Indenture, the Notes or any other agreement; (iv) the release of
any security held by any Holder or the Trustee for the Obligations or any of
them; (v) the failure of any Holder to exercise any right or remedy
against any other Subsidiary Guarantor; or (vi) any change in the
ownership of the Company.


 


(c)                                  Each
Subsidiary Guarantor further agrees that its Note Guarantee herein constitutes
a guarantee of payment when due (and not a guarantee of collection) and waives
any right to require that any resort be had by any Holder to any security held
for payment of the Obligations.


 


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


 


(i)                                     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 Subsidiary Guarantor or any other guarantor) before claiming
from it under this Indenture;


 


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


 


(iii)                               Any
right to which it may be entitled to have claims hereunder divided between the
Subsidiary Guarantors;


 


(iv)                              To
the extent applicable, the benefits of orden, excusión,
division, quita and espera
and any right specified in articles 2814, 2815, 2817, 2818, 2819, 2820, 2821,
2822, 2823, 2826, 2837, 2838, 2839, 2840, 2845, 2846, 2847 and any other
related or applicable articles that are not explicitly set forth herein because
of Subsidiary Guarantor’s knowledge thereof of the Código Civil Federal of Mexico, and the Código Civil of each State of the Mexican
Republic and the Federal District of Mexico.


 


The obligations assumed by each Subsidiary Guarantor
hereunder shall not be affected by the absence of judicial request of payment
by a Holder to the Company or by whether any such person takes timely action
pursuant to articles 2848 and 2849 of the Código
Civil Federal of Mexico and the Código
Civil of each State of the Mexican Republic and the Federal District
of Mexico and each Subsidiary Guarantor hereby expressly waives the provisions
of such articles.


 


(e)                                  The
obligations of each Subsidiary Guarantor hereunder shall not be subject to any
reduction, limitation, impairment or termination for any reason (other than
payment of the Obligations in full),


 


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including any
claim of waiver, release, surrender, alteration or compromise, and shall not be
subject to any defense of setoff, counterclaim, recoupment or termination
whatsoever or by reason of the invalidity, illegality or unenforceability of
the Obligations or otherwise.  Without
limiting the generality of the foregoing, the obligations of each Subsidiary
Guarantor herein shall not be discharged or impaired or otherwise affected by
the failure of any Holder to assert any claim or demand or to enforce any
remedy under this Indenture, the Notes or any other agreement, by any waiver or
modification of any thereof, by any default, failure or delay, willful or
otherwise, in the performance of the Obligations, or by any other act or thing
or omission or delay to do any other act or thing which may or might in any
manner or to any extent vary the risk of such Subsidiary Guarantor or would
otherwise operate as a discharge of such Subsidiary Guarantor as a matter of
law or equity.


 


(f)                                    Each
Subsidiary Guarantor further agrees that its Note Guarantee herein shall
continue to be effective or be reinstated, as the case may be, if at any time
payment, or any part thereof, of principal of or interest on any of the
Obligations is rescinded or must otherwise be restored by any Holder upon the
bankruptcy or reorganization of the Company or otherwise.


 


(g)                                 In
furtherance of the foregoing and not in limitation of any other right which any
Holder has at law or in equity against each Subsidiary Guarantor by virtue
hereof, upon the failure of the Company to pay any of the Obligations when and
as the same shall become due, whether at maturity, by acceleration, by
redemption or otherwise, each Subsidiary Guarantor hereby promises to and will,
upon receipt of written demand by the Trustee, forthwith pay, or cause to be
paid, in cash, to the Holders an amount equal to the sum of:


 


(i)                                     the
unpaid amount of such Obligations then due and owing; and


 


(ii)                                  accrued
and unpaid interest on such Obligations then due and owing (but only to the
extent not prohibited by law).


 


(h)                                 Each
Subsidiary Guarantor further agrees that, as between such Subsidiary Guarantor,
on the one hand, and the Holders, on the other hand:


 


(i)                                     the
maturity of the Obligations guaranteed hereby may be accelerated as provided in
this Indenture for the purposes of its Note Guarantee herein, notwithstanding
any stay, injunction or other prohibition preventing such acceleration in
respect of the Obligations guaranteed hereby; and


 


(ii)                                  in
the event of any such declaration of acceleration of such Obligations, such
Obligations (whether or not due and payable) shall forthwith become due and
payable by such Subsidiary Guarantor for the purposes of its Note Guarantee.


 


Section 10.2                                Limitation
on Liability; Termination, Release and Discharge.


 


(a)                                  The
obligations of each Subsidiary Guarantor hereunder will be limited to the
maximum amount as will, after giving effect to all other contingent and fixed
liabilities of such Subsidiary Guarantor and after giving effect to any
collections from or payments made by or on behalf of any other Subsidiary
Guarantor in respect of the obligations of such other Subsidiary Guarantor
under its Note Guarantee or pursuant to its contribution obligations under this
Indenture, result in the Obligations not constituting a fraudulent conveyance,
fraudulent transfer or similar illegal transfer under applicable law.


 


(b)                                 Each
Subsidiary Guarantor will be released and relieved of its obligations under its
Note Guarantee in the event that:


 


i.                                          there
is a Legal Defeasance or a Covenant Defeasance of the Notes pursuant to Section 8.1
or Article VIII;


 


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ii.                                   there
is a sale or other disposition of Capital Stock of such Subsidiary Guarantor
following which such Subsidiary Guarantor is no longer a direct or indirect
Subsidiary of the Company;   or


 


iii.                                such
Subsidiary Guarantor is designated as an Unrestricted Subsidiary in accordance
with Section 3.13;


 


provided,
that the transaction is carried out pursuant to and in accordance with all other
applicable provisions hereof.


 


Section 10.3                                Right of
Contribution.  Each Subsidiary
Guarantor that makes a payment or distribution under a Note Guarantee will be
entitled to a contribution from each other Subsidiary Guarantor in a pro rata
amount, based on the net assets of each Subsidiary Guarantor determined in
accordance with GAAP.  The provisions of
this Section 10.3 shall in no respect limit the obligations and
liabilities of each Subsidiary Guarantor to the Trustee and the Holders and
each Subsidiary Guarantor shall remain liable to the Trustee and the Holders
for the full amount guaranteed by such Subsidiary Guarantor hereunder.


 


Section 10.4                                No Subrogation.  Each Subsidiary Guarantor agrees that it
shall not be entitled to any right of subrogation in respect of any Guaranteed
Obligations until payment in full in cash or Cash Equivalents of all
Obligations.  If any amount shall be paid
to any Subsidiary Guarantor on account of such subrogation rights at any time
when all of the Obligations shall not have been paid in full in cash or Cash
Equivalents, such amount shall be held by such Subsidiary Guarantor in trust
for the Trustee and the Holders, segregated from other funds of such Subsidiary
Guarantor, and shall, forthwith upon receipt by such Subsidiary Guarantor, be
turned over to the Trustee in the exact form received by such Subsidiary
Guarantor (duly endorsed by such Subsidiary Guarantor to the Trustee, if
required), to be applied against the Obligations.


 


Section 10.5                                Additional Note
Guarantees.


 


(a)                                  The
Company covenants and agrees that, at any time after the date hereof any of the
Company’s Wholly-Owned Restricted Subsidiaries that is not at such time a
Subsidiary Guarantor becomes a Significant Subsidiary (including upon a
Revocation of the Designation of a Subsidiary as an Unrestricted Subsidiary),
the Company shall, after becoming aware of such event, (i) promptly notify
the Trustee in writing of such event and (ii) cause such Wholly-Owned
Restricted Subsidiary (an “Additional Subsidiary Guarantor”)
concurrently to become a Subsidiary Guarantor on a senior basis (promptly
following the determination in accordance with the terms of this Indenture that
such Restricted Subsidiary is a Wholly-Owned Subsidiary and a Significant
Subsidiary) by executing a Supplemental Indenture substantially in the form of Exhibit E
hereto and providing the Trustee with an Officers’ Certificate and Opinion of
Counsel and to comply in all respects with the provisions of this Indenture and
the Notes, as applicable; provided, however,
that each Additional Subsidiary Guarantor will be automatically and
unconditionally released and discharged from its obligations under such
additional note guarantee (“Additional Note Guarantee”) only in
accordance with Section 10.2.


 


(b)                                 The
Company shall, following the date hereof, conduct an investigation and make a
determination no later than 90 days following the end of the first, second and
third quarter of each fiscal year, based on the financial information for the
preceding quarter, and no later than 120 days following the end of each fiscal
year, based on the financial information for the prior fiscal year, as to
whether any Subsidiary has become a (i) Wholly-Owned Restricted Subsidiary
and (ii) a Significant Subsidiary.


 


ARTICLE XI



MISCELLANEOUS


 


Section 11.1                                Trust
Indenture Act Controls.  If any
provision of this Indenture limits, qualifies or conflicts with another
provision which is required to be included in this Indenture by the TIA, the
provision required by the TIA shall control.


 


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Section 11.2                                Notices.


 


(a)                                  Any
notice or communication shall be in writing and delivered in person, by
telecopy or mailed by first-class mail, postage prepaid, addressed as follows:


 


if to the Company and the Subsidiary
Guarantors:


 


Desarrolladora Homex, S.A. de C.V.


Andador Javier Mina 891-B


Colonia Centro Sinaloa


80200 Culiacán, Sinaloa, México,


Attention: Roberto Carrillo Herrera


Fax No.: +52 (55) 5203-8171
x102


 


with a copy to:


 


Milbank, Tweed, Hadley & McCloy LLP


One Chase Manhattan Plaza


New York, NY 10005-1413


U.S.A.


Attention: Michael Fitzgerald


Fax No.: (212) 822-5224


 


if to the Trustee:                            The Bank of New York

Global Finance Americas

101 Barclay Street, 21 West

New York, NY  10286

Fax No.:  (212) 815-5802/5803


 


The Company or the Trustee by notice to the other may
designate additional or different addresses for subsequent notices or
communications.


 


(b)                                 From
and after the date the Notes are listed on the Euro MTF, the alternative market
of the Luxembourg Stock Exchange and so long as it is required by the rules of
such exchange, all notices to Holders of Notes shall be published in English:


 


(1)                                  in
a leading newspaper having a general circulation in Luxembourg (which is
expected to be the Luxemburger Wort);
or


 


(2)                                  if
such Luxembourg publication is not practicable, in one other leading English
language newspaper being published on each day in morning editions, whether or
not it shall be published in Saturday, Sunday or holiday editions.


 


(c)                                  Notices
shall be deemed to have been given on the date of publication as aforesaid in Section 11.2(b) or,
if published on different dates, on the date of the first such
publication.  In addition, notices shall
be mailed to holders of Notes at their registered addresses.


 


(d)                                 Any
notice or communication mailed to a registered Holder shall be mailed to the
Holder at the Holder’s address as it appears on the registration books of the
Registrar and shall be sufficiently given if so mailed within the time
prescribed.


 


(e)                                  Failure
to mail a notice or communication to a Holder or any defect in it shall not
affect its sufficiency with respect to other Holders.  If a notice or communication is mailed in the
manner provided above, it is duly given, whether or not the addressee receives
it.


 


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(f)                                    Any
notice or communication delivered to the Company under the provisions herein
shall constitute notice to the Subsidiary Guarantors.


 


Section 11.3                                Communication by
Holders with Other Holders.  Holders
may communicate pursuant to TIA § 312(b) with other Holders with
respect to their rights under this Indenture (including the Note Guarantees) or
the Notes.  The Company, the Subsidiary
Guarantors, the Trustee, the Registrar and anyone else shall have the
protection of TIA § 312(c).


 


Section 11.4                                Certificate and
Opinion as to Conditions Precedent. 
Upon any request or application by the Company to the Trustee to take or
refrain from taking any action under this Indenture, the Company shall furnish
to the Trustee:


 


(1) an Officers’
Certificate in form and substance reasonably satisfactory to the Trustee
stating that, in the opinion of the signers, all conditions precedent, if any,
provided for in this Indenture relating to the proposed action have been
complied with; and


 


(2) an Opinion of Counsel
in form and substance reasonably satisfactory to the Trustee stating that, in
the opinion of such counsel, all such conditions precedent have been complied
with.


 


Section 11.5                                Statements Required
in Certificate or Opinion.  Each
certificate or opinion, including each Officers’ Certificate or Opinion of
Counsel with respect to compliance with a covenant or condition provided for in
this Indenture shall include:


 


(1) a statement that the
individual making such certificate or opinion has read such covenant or
condition;


 


(2) a brief statement as
to the nature and scope of the examination or investigation upon which the
statements or opinions contained in such certificate or opinion are based;


 


(3) a statement that, in
the opinion of such individual, he has made such examination or investigation
as is necessary to enable him to express an informed opinion as to whether or
not such covenant or condition has been complied with; and


 


(4) a statement as to
whether or not, in the opinion of such individual, such covenant or condition
has been complied with.


 


In giving an Opinion of Counsel, counsel may rely as
to factual matters on an Officers’ Certificate or on certificates of public
officials.


 


Section 11.6                                Rules by
Trustee, Paying Agent and Registrar. 
The Trustee may make reasonable rules for action by, or a meeting
of, Holders.  The Registrar and the
Paying Agent may make reasonable rules for their functions.


 


Section 11.7                                Legal Holidays.  A “Legal Holiday” is a Saturday, a
Sunday or other day on which commercial banking institutions are authorized or
required to be closed in New York City and in Mexico.  If a payment date is a Legal Holiday, payment
shall be made on the next succeeding day that is not a Legal Holiday, and no
interest shall accrue for the intervening period.  If a regular record date is a Legal Holiday,
the record date shall not be affected.


 


76





















 


Section 11.8                                Governing
Law, etc.


 


(a)                                  THIS
INDENTURE (INCLUDING EACH NOTE GUARANTEE) AND THE NOTES SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK BUT WITHOUT
GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT
THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION WOULD BE REQUIRED
THEREBY.  THE PARTIES HERETO EACH HEREBY
WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
ARISING OUT OF OR RELATING TO THIS INDENTURE, EACH NOTE GUARANTEE OR THE NOTES
OR ANY TRANSACTION RELATED HERETO OR THERETO TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW.


 


(b)                                 Each
of the parties hereto:


 


(i)                                     agrees
that any suit, action or proceeding against it arising out of or relating to
this Indenture (including the Note Guarantees) or the Notes, as the case may
be, may be instituted in any Federal or state court sitting in The City of New
York,


 


(ii)                                  waives
to the fullest extent permitted by applicable law, any objection which it may
now or hereafter have to the laying of venue of any such suit, action or
proceeding, any claim that any suit, action or proceeding in such a court has
been brought in an inconvenient forum and any right to which it may be entitled
on account of place of residence or domicile,


 


(iii)                               irrevocably
submits to the jurisdiction of such courts in any suit, action or proceeding,


 


(iv)                              agrees
that final judgment in any such suit, action or proceeding brought in such a
court shall be conclusive and binding may be enforced in the courts of the
jurisdiction of which it is subject by a suit upon judgment, and


 


(v)                                 agrees
that service of process by mail to the addressed specified herein shall
constitute personal service of such process on it in any such suit, action or
proceeding.


 


(c)                                  The
Company and the Subsidiary Guarantors have appointed CT Corporation System with
offices currently at 111 Eighth Avenue, New York, New York  10011 as their authorized agent (the “Authorized
Agent”) upon whom all writs, process and summonses may be served in any
suit, action or proceeding arising out of or based upon this Indenture or the
Notes which may be instituted in any state or federal court in The City of New
York, New York.  The Company and the
Subsidiary Guarantors hereby represent and warrant that the Authorized Agent
has accepted such appointment and has agreed to act as said agent for service
of process, and the Company and the Subsidiary Guarantors agree to take any and
all action, including the filing of any and all documents, that may be
necessary to continue each such appointment in full force and effect as
aforesaid so long as the Notes remain outstanding.  The Company and the Subsidiary Guarantors
agree that the appointment of the Authorized Agent shall be irrevocable so long
as any of the Notes remain outstanding or until the irrevocable appointment by
the Company and the Subsidiary Guarantors of a successor agent in The City of
New York, New York as each of their authorized agent for such purpose and the
acceptance of such appointment by such successor.  Service of process upon the Authorized Agent
shall be deemed, in every respect, effective service of process upon the
Company and the Subsidiary Guarantors.


 


(d)                                 To
the extent that any of the Company and the Subsidiary Guarantors have or
hereafter may acquire any immunity (sovereign or otherwise) from any legal
action, suit or proceeding, from jurisdiction of any court or from set-off or
any legal process (whether service or notice, attachment in aid or otherwise)
with respect to itself or any of its property, the Company and the Subsidiary
Guarantors hereby irrevocably waive and agree not to plead or claim such
immunity in respect of their obligations under this Indenture or the Notes.


 


77





















 


(e)                                  Nothing
in this Section 11.8 shall affect the right of the Trustee or any
Holder of the Notes to serve process in any other manner permitted by law.


 


Section 11.9                                No Recourse Against
Others.  An incorporator, director,
officer, employee, stockholder or controlling person, as such, of the Company
or any Subsidiary Guarantor shall not have any liability for any obligations of
the Company under the Notes, this Indenture or the Note Guarantees or for any
claim based on, in respect of or by reason of such obligations or their
creation.  By accepting a Note, each
Holder shall waive and release all such liability.  The waiver and release shall be part of the
consideration for the issue of the Notes.


 


Section 11.10                          Successors.  All agreements of the Company and the
Subsidiary Guarantors in this Indenture and the Notes shall bind their
respective successors.  All agreements of
the Trustee in this Indenture shall bind its successors.


 


Section 11.11                          Duplicate and Counterpart
Originals.  The parties may sign any
number of copies of this Indenture.  One
signed copy is enough to prove this Indenture. 
This Indenture may be executed in any number of counterparts, each of
which so executed shall be an original, but all of them together represent the
same agreement.


 


Section 11.12                          Severability.  In case any provision in this Indenture or in
the Notes shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.


 


Section 11.13                          Qualification
of Indenture.  The Company shall
qualify this Indenture under the TIA in accordance with the terms and
conditions of the Issue Date Registration Rights Agreement and shall pay all
reasonable costs and expenses (including attorneys’ fees and expenses for the
Company, the Subsidiary Guarantors, the Trustee and the Holders) incurred in
connection therewith, including, but not limited to, costs and expenses of
qualification of this Indenture and the Notes and printing this Indenture and
the Notes.  The Trustee shall be entitled
to receive from the Company any such Officers’ Certificates, Opinions of
Counsel or other documentation as it may reasonably request in connection with
any such qualification of this Indenture under the TIA.


 


Section 11.14                          Currency Indemnity


 


(a)                                  U.S.
Legal Tender is the sole currency of account and payment for all sums payable
by the Company or any Subsidiary Guarantor under or in connection with the
Notes or this Indenture, including damages. 
Any amount received or recovered in currency other than U.S. Legal Tender
(whether as a result of, or of the enforcement of, a judgment or order of a
court of any jurisdiction, in the winding-up or dissolution of the Company, any
Subsidiary or otherwise) by any Holder of the Notes in respect of any sum
expressed to be due to it from the Company or any Subsidiary Guarantor shall
only constitute a discharge of them under the Notes and this Indenture only to
the extent of the U.S. Legal Tender amount which the recipient is able to
purchase with the amount so received or recovered in that other currency on the
date of that receipt or recovery (or, if it is not practicable to make that
purchase on that date, on the first date on which it is practicable to do
so).  If that U.S. Legal Tender amount is
less than the U.S. Legal Tender amount expressed to be due to the recipient
under the Notes or this Indenture, the Company and the Subsidiary Guarantors
shall jointly and severally indemnify and hold harmless the recipient against
any loss sustained by it in making any such purchase.  In any event, the Company and the Subsidiary
Guarantors shall jointly and severally indemnify the Holder against the cost of
making any purchase of U.S. Legal Tender. 
For the purposes of this Section 11.14, it will be
sufficient for the Holder of a Note to certify in a satisfactory manner that it
would have suffered a loss had an actual purchase of U.S. Legal Tender been
made with the amount received in that other currency on the date of receipt or
recovery (or, if a purchase of U.S. Legal Tender on such date had not been
practicable, on the first date on which it would have been practicable) and
that the change of the purchase date was needed.


 


(b)                                 The
indemnities of the Company and the Subsidiary Guarantors contained in this Section 11.14,
to the extent permitted by law:  (i) constitute
a separate and independent obligation from the other obligations of the Company
and the Subsidiary Guarantors under this Indenture and the Notes; (ii) shall
give rise to a separate and independent cause of action against the Company and
the Subsidiary Guarantors; (iii) shall apply irrespective of


 


78





















 


any indulgence
granted by any Holder of the Notes from time to time; and (iv) shall
continue in full force and effect notwithstanding any other judgment, order,
claim or proof for a liquidated amount in respect of any sum due under the
Notes.


 


Section 11.15                          Table
of Contents; Headings.  The table of
contents and headings of the Articles and Sections of this Indenture have been
inserted for convenience of reference only, are not intended to be considered a
part hereof and shall not modify or restrict any of the terms or provisions
hereof.


 


79





















 


Indenture


 


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


 


	
   

  	
  DESARROLLADORA
  HOMEX, S.A. DE C.V.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Roberto Carrillo

  	
   

  
	
   

  	
   

  	
  Name:
  Roberto Carrillo

  
	
   

  	
   

  	
  Title:
  Chief of Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  PROYECTOS
  INMOBILIARIOS DE CULIACÁN, S.A.

  
	
   

  	
   

  	
  DE
  S.V.,

  
	
   

  	
   

  	
  as
  Subsidiary Guarantor

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Roberto Carrillo

  	
   

  
	
   

  	
   

  	
  Name:
  Roberto Carrillo

  
	
   

  	
   

  	
  Title:
  Chief of Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  DESARROLLADORA
  DE CASAS DEL NOROESTE, S.A.

  
	
   

  	
   

  	
  DE
  C.V.,

  
	
   

  	
   

  	
  as
  Subsidiary Guarantor

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Roberto Carrillo

  	
   

  
	
   

  	
   

  	
  Name:
  Roberto Carrillo

  
	
   

  	
   

  	
  Title:
  Chief of Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  CASAS
  BETA DEL CENTRO, S.A. DE C.V.,

  
	
   

  	
   

  	
  as
  Subsidiary Guarantor

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Roberto Carrillo

  	
   

  
	
   

  	
   

  	
  Name:
  Roberto Carrillo

  
	
   

  	
   

  	
  Title:
  Chief of Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  CASAS
  BETA DEL NORTE, S.A. DE C.V.,

  
	
   

  	
   

  	
  as
  Subsidiary Guarantor

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Roberto Carrillo

  	
   

  
	
   

  	
   

  	
  Name:
  Roberto Carrillo

  
	
   

  	
   

  	
  Title:
  Chief of Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  CASAS
  BETA DEL NOROESTE, S.A. DE C.V.,

  
	
   

  	
   

  	
  as
  Subsidiary Guarantor

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Roberto Carrillo

  	
   

  
	
   

  	
   

  	
  Name:
  Roberto Carrillo

  
	
   

  	
   

  	
  Title:
  Chief of Financial Officer

  



 





















 


	
   

  	
  EDIFICACIONES
  BETA S.A. DE C.V.,

  
	
   

  	
   

  	
  as
  Subsidiary Guarantor

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Roberto Carrillo

  	
   

  
	
   

  	
   

  	
  Name:
  Roberto Carrillo

  
	
   

  	
   

  	
  Title:
  Chief of Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  EDIFICACIONES
  BETA DEL NOROESTE, S.A. DE

  
	
   

  	
   

  	
  C.V.,

  
	
   

  	
   

  	
  as
  Subsidiary Guarantor

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Roberto Carrillo

  	
   

  
	
   

  	
   

  	
  Name:
  Roberto Carrillo

  
	
   

  	
   

  	
  Title:
  Chief of Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  EDIFICACIONES
  BETA DEL NORTE, S.A. DE C.V.,

  
	
   

  	
   

  	
  as
  Subsidiary Guarantor

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Roberto Carrillo

  	
   

  
	
   

  	
   

  	
  Name:
  Roberto Carrillo

  
	
   

  	
   

  	
  Title:
  Chief of Financial Officer

  



 





















 


	
   

  	
  THE
  BANK OF NEW YORK,

  
	
   

  	
   

  	
  as
  Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Michael Pitfick

  	
   

  
	
   

  	
   

  	
  Name:
  Michael Pitfick

  
	
   

  	
   

  	
  Title:
  Vice President

  



 


 


	
  Solely
  for the purposes of accepting the

  appointment of Luxembourg Paying Agent,

  together with the rights, protections and immunities

  granted to the Trustee under Article VII, which shall

  apply mutatis mutandis to the
  Luxembourg

  Paying Agent,



  THE
  BANK OF NEW YORK (LUXEMBOURG), S.A.,

  
	
   

  	
  as
  Luxembourg Paying Agent

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  
	
  Title:

  	
   

  
				



 


















 


EXHIBIT A


 


FORM OF NOTE


 


“THIS IS A GLOBAL NOTE WITHIN THE MEANING OF THE
INDENTURE REFERRED TO HEREINAFTER.


 


UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”),
NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN.


 


TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL
NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET
FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.”


 


Include the following legend on all
Notes that are Restricted Notes:


 


THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE ‘‘SECURITIES ACT’’),
OR ANY STATE OR OTHER SECURITIES LAWS. NEITHER THIS GLOBAL NOTE NOR ANY
INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS THE TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF THIS GLOBAL NOTE
BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A ‘‘QUALIFIED
INSTITUTIONAL BUYER’’ (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT
IS NOT A U.S. PERSON AND IS ACQUIRING THIS GLOBAL NOTE IN AN ‘‘OFFSHORE
TRANSACTION’’ PURSUANT TO RULE 903 OR 904 OF REGULATION S, (2) AGREES THAT
IT WILL NOT OFFER, SELL OR OTHERWISE TRANSFER THIS GLOBAL NOTE, EXCEPT (A) (I)
TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL
BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT ACQUIRING FOR
ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A
TRANSACTION COMPLYING WITH RULE 144A, (II) IN AN OFFSHORE TRANSACTION COMPLYING
WITH THE REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE
SECURITIES ACT, OR (III) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), AND (B) IN
ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED
STATES AND OTHER JURISDICTIONS, AND (3) AGREES THAT IT WILL GIVE TO EACH
PERSON TO WHOM THIS GLOBAL NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND. AS USED HEREIN, THE TERMS ‘‘OFFSHORE TRANSACTION,’’ ‘‘UNITED
STATES’’ AND ‘‘U.S. PERSON’’ HAVE THE RESPECTIVE MEANINGS GIVEN TO THEM BY
REGULATION S UNDER THE SECURITIES ACT.


 


A-1





















 


Include the following legend on all
Regulation S Temporary Global Notes:


 


“PRIOR TO EXPIRATION OF THE 40-DAY DISTRIBUTION
COMPLIANCE PERIOD (AS DEFINED IN REGULATION S (“REGULATION S”) UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”)), THIS GLOBAL
NOTE MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE
UNITED STATES (AS DEFINED IN REGULATION S) OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, A U.S.  PERSON (AS DEFINED IN
REGULATION S), EXCEPT TO A PERSON REASONABLY BELIEVED TO BE A “QUALIFIED
INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A (“RULE 144A”) UNDER THE
SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE l44A AND THE
INDENTURE.


 


THIS GLOBAL NOTE IS A TEMPORARY GLOBAL NOTE FOR
PURPOSES OF REGULATION S UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS
AMENDED (THE “1933 ACT”).  NEITHER
THIS TEMPORARY GLOBAL NOTE NOR ANY INTEREST HEREIN MAY BE OFFERED, SOLD OR
DELIVERED, EXCEPT AS PERMITTED ABOVE.


 


NO BENEFICIAL OWNERS OF THIS TEMPORARY GLOBAL NOTE
SHALL BE ENTITLED TO RECEIVE PAYMENT OF PRINCIPAL HEREOF OR INTEREST HEREON
UNLESS THE REQUIRED CERTIFICATIONS HAVE BEEN DELIVERED PURSUANT TO THE TERMS OF
THE INDENTURE.”


 


 “IN CONNECTION
WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR SUCH OPINIONS OF
COUNSEL, CERTIFICATES AND/OR OTHER INFORMATION AS IT MAY REASONABLY
REQUIRE IN FORM REASONABLY SATISFACTORY TO IT AS PROVIDED FOR IN THE
INDENTURE TO CONFIRM THAT THE TRANSFER COMPLIED WITH THE FOREGOING RESTRICTIONS
AS PROVIDED FOR IN THE INDENTURE.”


 


“THE HOLDER OF THIS GLOBAL NOTE BY ITS ACCEPTANCE
HEREOF AGREES TO BE BOUND BY THE PROVISIONS OF THE REGISTRATION RIGHTS
AGREEMENT RELATING TO ALL THE SECURITIES.”


 


FORM OF FACE OF NOTE


 


	
  No. [       ]

  	
   

  	
  Principal Amount
  US$[                                ]

  



 


[If the Note is a Global Note include the following two lines:


as revised by the Schedule of
Increases and

Decreases in Global Note attached hereto]


 


CUSIP NO.                         

[If the Note is a Regulation S Global
Note, delete the reference to CUSIP NO. and replace it with:

ISIN NO.                    ]


 


Desarrolladora Homex, S.A. de C.V., a corporation (sociedad anónima de capital variable),
promises to pay to [                          ],
or registered assigns, the principal sum of [                                 ]
Dollars [If the Note is a Global Note, add
the following, as revised by the Schedule of Increases and
Decreases in Global Note attached hereto], on September 28, 2015.


 


Interest Payment Dates:                                         March 28
and September 28


 


Record Dates:                                                                                             March 13
and September 14


 


A-2





















 


Additional provisions of this Note are set forth on
the other side of this Note.


 


	
   

  	
  DESARROLLADORA
  HOMEX, S.A. DE C.V.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
					



 


TRUSTEE’S CERTIFICATE OF

  AUTHENTICATION


 


The Bank of New York,

as Trustee, certifies

that this is one of

the Notes referred

to in the Indenture.


 


	
  By:

  	
   

  	
   

  	
   

  
	
  Authorized Signatory

  	
  Date:

  	
   

  	
   

  



 


A-3





















 


FORM OF REVERSE SIDE OF NOTE


 


7.5% Senior Guaranteed Notes due September 28,
2015


 


1.                                       Interest


 


Desarrolladora Homex, S.A. de C.V., a corporation (sociedad anónima de capital variable) (and its successors and assigns under the
Indenture hereinafter referred to, the “Company”), promises to pay
interest on the principal amount of this Note at the rate per annum shown
above.


 


The Company will pay interest semiannually in arrears
on each Interest Payment Date of each year commencing March 28, 2006.  Interest on the Notes will accrue from the
most recent date to which interest has been paid on the Notes or, if no
interest has been paid, from September 28, 2005.  The Company shall pay interest on overdue
principal (plus interest on such interest to the extent lawful), at the rate borne
by the Notes to the extent lawful. 
Interest will be computed on the basis of a 360-day year of twelve 30-day
months.


 


The Company shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
principal and, to the extent such payments are lawful, interest on overdue
installments of interest (“Defaulted Interest”) without regard to any
applicable grace periods at the rate shown on this Note, as provided in the
Indenture.


 


All payments made by the Company in respect of the
Notes will be made free and clear of and without deduction or withholding for
or on account of any Taxes imposed or levied by or on behalf of any Taxing
Authority, unless such withholding or deduction is required by law or by the
interpretation or administration thereof. 
In that event, the Company will pay to each Holder of the Notes
Additional Amounts as provided in the Indenture subject to the limitations set
forth in the Indenture.


 


2.                                       Method
of Payment


 


Prior to 10:00 a.m. New York City time on the
date on which any principal of or interest on any Note is due and payable, the
Company shall irrevocably deposit with the Trustee or the Paying Agent money
sufficient to pay such principal and/or interest.  The Company will pay interest (except
Defaulted Interest) to the Persons who are registered Holders of Notes at the
close of business on the Record Date preceding the Interest Payment Date even
if Notes are canceled, repurchased or redeemed after the Record Date and on or
before the relevant Interest Payment Date. 
Holders must surrender Notes to a Paying Agent to collect principal
payments.  The Company will pay principal
and interest in U.S. Legal Tender.


 


Payments in respect of Notes represented by a Global
Note (including principal and interest) will be made by the transfer of
immediately available funds to the accounts specified by DTC.  The Company will make all payments in respect
of a Certificated Note (including principal and interest) by mailing a check to
the registered address of each Holder thereof; provided,
however, that payments on the
Notes may also be made, in the case of a Holder of at least US$1,000,000
aggregate principal amount of Notes, by wire transfer to a U.S. dollar account
maintained by the payee with a bank in the United States if such Holder elects
payment by wire transfer by giving written notice to the Trustee or the Paying
Agent to such effect designating such account no later than 15 days immediately
preceding the relevant due date for payment (or such other date as the Trustee
may accept in its discretion).


 


3.                                       Paying
Agent and Registrar


 


Initially, The Bank of New York (the “Trustee”), will
act as Trustee, Paying Agent and Registrar. 
The Company may appoint and change any Paying Agent, Registrar or
co-Registrar without notice to any Holder. 
The Company or any Subsidiary Guarantor may act as Paying Agent,
Registrar or co-Registrar.


 


1





















 


4.                                       Indenture


 


The Company issued the Notes under an Indenture, dated
as of September 28, 2005 (as it may be amended or supplemented from time
to time in accordance with the terms thereof, the “Indenture”), between the
Company, the Subsidiary Guarantors and the Trustee.  The terms of the Notes include those stated
in the Indenture and those made part of the Indenture by reference to the
TIA.  Capitalized terms used herein and
not defined herein have the meanings ascribed thereto in the Indenture.  The Notes are subject to all such terms, and
Holders are referred to the Indenture and the TIA for a statement of those
terms.  Each Holder by accepting a Note,
agrees to be bound by all of the terms and provisions of the Indenture, as
amended or supplemented from time to time.


 


The Notes are general unsecured obligations of the
Company.  Subject to the conditions set
forth in the Indenture and without the consent of the Holders, the Company may
issue Additional Notes.  All Notes will
be treated as a single class of securities under the Indenture.


 


The Indenture imposes certain limitations on, among
other things, the ability of the Company and its Subsidiaries to:  Incur Additional Indebtedness, make
Restricted Payments, incur Liens, make Asset Sales, enter into transactions
with Affiliates, or consolidate or merge or transfer or convey all or
substantially all of the Company’s and its Subsidiaries’ assets.


 


To guarantee the due and punctual payment of the
principal of and interest on the Notes and all other amounts payable by the
Company under the Indenture and the Notes when and as the same shall be due and
payable, whether at maturity, by acceleration or otherwise, according to the
terms of the Notes and the Indenture, Proyectos Inmobiliarios de Culiacán, S.A.
de C.V., Desarrolladora de Casas del Noroeste, S.A. de C.V., Casas Beta del Centro,
S.A. de C.V., Casas Beta del Norte, S.A. de C.V., Casas Beta del Noroeste, S.A.
de C.V. Edificaciones Beta, S.A. de C.V., Edificaciones Beta del Noroeste, S.A.
de C.V., and Edificaciones Beta del Norte, S.A. de C.V. have unconditionally
guaranteed (and each future Wholly-Owned Restricted Subsidiary that becomes a
Significant Subsidiary will unconditionally guarantee), jointly and severally,
such obligations pursuant to the terms of the Indenture.  Each Note Guarantee will be subject to
release as provided in the Indenture. 
The obligations of each Subsidiary Guarantor in respect of its Note
Guarantee will be limited to the maximum amount as will, after giving effect to
all other contingent and fixed liabilities of such Subsidiary Guarantor and
after giving effect to any collections from or payments made by or on behalf of
any other Subsidiary Guarantor in respect of the obligations of such other
Subsidiary Guarantor under its Note Guarantee or pursuant to its contribution
obligations under this Indenture, result in the obligations of such Subsidiary
Guarantor under its Note Guarantee not constituting a fraudulent conveyance or
fraudulent transfer under federal or state law.


 


5.                                       Redemption


 


Optional Redemption.  Except as stated below, the Company may not
redeem the Notes prior to September 28, 2010.  The Company may redeem the Notes, at its
option, in whole at any time or in part from time to time, on and after September 28,
2010, at the following redemption prices, expressed as percentages of the
principal amount thereof, if redeemed during the twelve-month period commencing
on September 28 of any year set forth below:


 


	
  Year

  	
   

  	
  Percentage

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2010

  	
   

  	
  103.75

  	
  %

  
	
  2011

  	
   

  	
  102.50

  	
  %

  
	
  2012

  	
   

  	
  101.25

  	
  %

  
	
  2013 and thereafter

  	
   

  	
  100.00

  	
  %

  



 


Prior to September 28, 2010, the Company will
have the right, at its option, to redeem any of the Notes, in whole or in part,
at any time or from time to time prior to their maturity, on at least 30 days’
but not more than 60 days’ notice, at a redemption price equal to the greater
of (1) 100% of the principal amount of such Notes and (2) the sum of
the present value of each remaining scheduled payment of principal and interest
thereon (exclusive of interest accrued to the date of redemption) discounted to
the redemption date on a semi-annual basis


 


2





















 


(assuming a 360-day year
consisting of twelve 30-day months) at the Treasury Rate plus 50 basis points
(the “Make-Whole Amount”), plus in each case accrued interest on the principal
amount of the Notes to the date of redemption.


 


“Treasury Rate” means, with respect to any redemption
date, the rate per annum equal to the semi-annual equivalent yield to maturity
or interpolated maturity (on a day count basis) of the Comparable Treasury
Issue, assuming a price for the Comparable Treasury Issue (expressed as a
percentage of its principal amount) equal to the Comparable Treasury Price for
such redemption date.


 


“Comparable Treasury Issue” means the United States
Treasury security or securities selected by an Independent Investment Banker as
having an actual or interpolated maturity comparable to the remaining term of
the Notes to be redeemed that would be utilized, at the time of selection and
in accordance with customary financial practice, in pricing new issues of
corporate debt securities of a comparable maturity to the remaining term of
such Notes.


 


“Independent Investment Banker” means one of the
Reference Treasury Dealers appointed by the Company.


 


“Comparable Treasury Price” means, with respect to any
redemption date (1) the average of the Reference Treasury Dealer
Quotations for such redemption date, after excluding the highest and lowest
such Reference Treasury Dealer Quotation or (2) if the Trustee obtains
fewer than four such Reference Treasury Dealer Quotations, the average of all
such quotations.


 


“Reference Treasury Dealer” means Credit Suisse First
Boston LLC or its affiliates which are primary United States government
securities dealers and not less than two other leading primary United States
government securities dealers in New York City reasonably designated by the
Company; provided, however, that
if any of the foregoing shall cease to be a primary United States government
securities dealer in New York City (a “Primary Treasury Dealer”), the Company
will substitute therefor another Primary Treasury Dealer.


 


“Reference Treasury Dealer Quotation” means, with
respect to each Reference Treasury Dealer and any redemption date, the average,
as determined by the Trustee, of the bid and asked price for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal amount)
quoted in writing to the Trustee by such Reference Treasury Dealer at 3:30 pm
New York time on the third business day preceding such redemption date.


 


Optional Redemption upon Equity
Offerings.  At any
time, or from time to time, on or prior to September 28, 2008 the Company
may, at its option, use the net cash proceeds of one or more Equity Offerings
to redeem in the aggregate up to 35% of the aggregate principal amount of the
Notes issued under the Indenture at a redemption price equal to 107.50% of the
principal amount thereof; provided,
that:


 


(1)                                  after
giving effect to any such redemption at least 65% of the aggregate principal
amount of the Notes issued under the Indenture remains outstanding; and


 


(2)                                  the
Company shall make such redemption not more than 90 days after the
consummation of such Equity Offering.


 


“Equity Offering” means (i) an underwritten
public offering of Qualified Capital Stock of the Company pursuant to a
registration statement (other than a registration statement filed on Form S-4
or S-8) filed with the SEC in accordance with the Securities Act or in
accordance with applicable Mexican laws, rules and regulations, (ii) a
rights offering of Qualified Capital Stock of the Company made generally to the
holders of such Qualified Capital Stock or (iii) any private placement of
Qualified Capital Stock of the Company to any Person, in each case other than
issuances upon exercise of options by employees of the Company or any of its
Subsidiaries.


 


Optional Redemption for Changes in
Withholding Taxes.  If,
as a result of any amendment to, or change in, the laws (or any rules or
regulations thereunder) of Mexico or any political subdivision or taxing authority
or other instrumentality thereof or therein affecting taxation, or any
amendment to or change in an official


 


3





















 


interpretation or
application of such laws, rules or regulations, which amendment to or
change of such laws, rules or regulations becomes effective on or after
the date on which the Notes we are offering are issued (which, in the case of a
merger, consolidation or other transaction permitted and described under Section 4.1
of the Indenture, shall be treated for this purpose as the date of such
transaction), we have become obligated, or will become obligated, in each case
after taking all reasonable measures to avoid this requirement, to pay
additional amounts in excess of those attributable to a Mexican withholding tax
rate of 10% with respect to the Notes, then, at our option, all, but not less
than all, of the Notes may be redeemed at any time on giving not less than 30
nor more than 60 days’ notice, at a redemption price equal to 100% of the
outstanding principal amount, plus accrued and unpaid interest and any
additional amounts due thereon up to but not including the date of redemption; provided, however,
that (1) no notice of redemption for tax reasons may be given earlier than
90 days prior to the earliest date on which we would be obligated to pay
these additional amounts if a payment on the Notes were then due and (2) at
the time such notice of redemption is given such obligation to pay such
additional amounts remains in effect.


 


Prior to the publication of any notice of redemption
pursuant to this provision, the Company will deliver to the Trustee:


 


•                  a
certificate signed by one of the Company’s duly authorized representatives
stating that the Company is entitled to effect the redemption and setting forth
a statement of facts showing that the conditions precedent to the Company’s
right to redeem have occurred, and


 


•                  an
opinion of Mexican legal counsel (which may be the Company’s counsel) of
recognized standing to the effect that the Company has or will become obligated
to pay such additional amounts as a result of such change or amendment.


 


This notice, once delivered by the Company to the
Trustee, will be irrevocable.


 


The Company will give notice to DTC pursuant to Section 5.3
of any redemption the Company proposes to make at least 30 days (but not more
than 60 days) before the redemption date.


 


Optional Redemption Procedures.  In the event that less than all of the Notes
are to be redeemed at any time, selection of Notes for redemption will be made
by the Trustee in compliance with the requirements of the principal national
securities exchange, if any, on which Notes are listed or, if the Notes are not
then listed on a national securities exchange, on a pro rata basis, by lot or by any other method as the Trustee
shall deem fair and appropriate (subject to the procedures of DTC).  If a partial redemption is made with the
proceeds of an Equity Offering, selection of the Notes or portions thereof for
redemption will, subject to the preceding sentence, be made by the Trustee only
on a pro rata basis or on as
nearly a pro rata basis as is
practicable (subject to the procedures of DTC), unless the method is otherwise
prohibited.  No Notes of a principal
amount of US$1,000 or less may be redeemed in part and Notes of a principal
amount in excess of US$1,000 may be redeemed in part in multiples of US$1,000
only.


 


Notice of any redemption will be mailed by first-class
mail, postage prepaid, at least 30 but not more than 60 days before the redemption
date to each Holder of Notes to be redeemed at its registered address.  If Notes are to be redeemed in part only, the
notice of redemption will state the portion of the principal amount thereof to
be redeemed.  For so long as the Notes
are listed on Euro MTF, the alternative market of the Luxembourg Stock
Exchange, the Company will cause notices of redemption also to be published as
provided under Section 11.2. 
A new Note in a principal amount equal to the unredeemed portion thereof
(if any) will be issued in the name of the Holder thereof upon cancellation of
the original Note (or appropriate adjustments to the amount and beneficial
interests in a Global Note will be made, as appropriate).


 


The Company will pay the redemption price for any Note
together with accrued and unpaid interest thereon through the date of
redemption.  On and after the redemption
date, interest will cease to accrue on Notes or portions thereof called for
redemption as long as the Company has deposited with the Paying Agent funds in
satisfaction of the applicable redemption price pursuant to the Indenture.  Upon redemption of any Notes by the Company,
such redeemed Notes will be cancelled.


 


4





















 


In the case of any partial redemption, selection of
the Notes for redemption will be made in accordance with Article V of the
Indenture.  On and after the redemption
date, interest will cease to accrue on Notes or portions thereof called for
redemption as long as the Company has deposited with the Paying Agent funds in
satisfaction of the applicable redemption price pursuant to the Indenture.


 


6.                                       Mandatory
Repurchase Provisions


 


Change Of
Control Offer.  Upon
the occurrence of a Change of Control, each Holder of Notes will have the right
to require that the Company purchase all or a portion (in integral multiples of
US$1,000) of the Holder’s Notes at a purchase price equal to 101% of the
principal amount thereof, plus accrued and unpaid interest through the date of
purchase.  Within 30 days following the
date upon which the Change of Control occurred, the Company must make a Change
of Control Offer pursuant to a Change of Control Notice and, so long as the
Notes are listed on Euro MTF, the alternative market of the Luxembourg Stock
Exchange, publish the Change of Control Offer in a newspaper having general
circulation in Luxembourg.  As more fully
described in the Indenture, the Change of Control Notice shall state, among
other things, the Change of Control Payment Date, which must be no earlier than
30 days nor later than 60 days from the date the notice is mailed, other than
as may be required by applicable law.


 


Asset Sale
Offer.  The Indenture imposes certain limitations on
the ability of the Company and its Restricted Subsidiaries to make Asset Sales.  In the event the proceeds from a permitted
Asset Sale exceed certain amounts and are not applied as specified in the
Indenture, the Company will be required to make an Asset Sale Offer to purchase
to the extent of such remaining proceeds each Holder’s Notes together with
holders of certain other Indebtedness at 100% of the principal amount thereof,
plus accrued interest (if any) to the Asset Sale Offer Payment Date, as more
fully set forth in the Indenture.


 


7.                                       Denominations;
Transfer; Exchange


 


The Notes are in fully registered form without
coupons, and only in minimum denominations of US$2,000 and integral multiples
of US$1,000 in excess thereof.  A Holder
may transfer or exchange Notes in accordance with the Indenture.  The Registrar may require a Holder, among
other things, to furnish appropriate endorsements or transfer documents and to
pay any taxes and fees required by law or permitted by the Indenture.  The Registrar need not register the transfer
of or exchange (i) any Notes selected for redemption (except, in the case
of a Note to be redeemed in part, the portion of the Note not to be redeemed)
for a period beginning 15 days before the mailing of a notice of Notes to be
redeemed and ending on the date of such mailing or (ii) any Notes for a period
beginning 15 days before an interest payment date and ending on such interest
payment date.


 


8.                                       Persons
Deemed Owners


 


The registered holder of this Note may be treated as
the owner of it for all purposes.


 


9.                                       Unclaimed
Money


 


If money for the payment of principal or interest
remains unclaimed for two years, the Trustee or Paying Agent shall pay the
money back to the Company at its request unless an abandoned property law
designates another Person.  After any such
payment, Holders entitled to the money must look only to the Company and not to
the Trustee for payment.


 


10.                                 Discharge
Prior to Redemption or Maturity


 


Subject to certain conditions set forth in the
Indenture, the Company at any time may terminate some or all of its obligations
under the Notes and the Indenture if the Company deposits with the Trustee U.S.
Legal Tender or U.S. Government Obligations for the payment of principal of and
interest on the Notes to redemption or maturity, as the case may be.


 


5





















 


11.                                 Amendment,
Waiver


 


(a)                                  (1)                                  Subject
to certain exceptions set forth in the Indenture, (i) the Indenture or the
Notes may be amended or supplemented with the written consent of the Holders of
at least a majority in principal amount of the then Outstanding Notes and (ii) any
default (other than with respect to nonpayment or in respect of a provision
that cannot be amended or supplemented without the written consent of each
Holder affected) or noncompliance with any provision may be waived with the
written consent of the Holders of a majority in aggregate principal amount of
the then Outstanding Notes.  Subject to
certain exceptions set forth in the Indenture, without the consent of any
Holder, the Company and the Trustee may amend or supplement the Indenture or
the Notes to, among other things, cure any ambiguity, omission, defect or
inconsistency; or to provide for the assumption by a Surviving Entity of the
obligations of the Company or a Subsidiary Guarantor obligation under the Note
Guarantee under the Notes in the case of a merger or consolidation or sale of
all on substantially all of the Company’s or such subsidiary Guarantor’s
assets, as applicable, to the extent permitted under the Indenture; or provide
for uncertificated Notes in addition to or in place of certificated Notes; provided, however, that the uncertificated
Notes are issued in registered form for purposes of Section 163(f) of
the Code; or to add guarantees with respect to the Notes or to secure the
Notes; or to allow any Subsidiary Guarantor to execute a supplemental indenture
and/or a Note Guarantee with respect to the Notes and to release Note
Guarantors from the Note Guarantee in accordance with the terms of Article X
of the Indenture; or to add to the covenants of the Company for the benefit of
the Holders or to surrender any right or power herein conferred upon the
Company; or to comply with any requirements of the SEC in order to effect or
maintain the qualification of this Indenture under the TIA; or to conform the
text of this Indenture, the Note Guarantees or the Notes to any provision of
the section ”Description of Notes” in the Offering Circular to the extent
that such provision in such “Description of Notes” was intended to be a
verbatim recitation of a provision of this Indenture or the Notes or Note
Guarantees; or to comply with the requirements of any applicable securities
depositary; or to make any change that provides any additional rights or
benefits to the Holders or that does not adversely affect the legal rights
hereunder of any such Holder and to provide for a successor Trustee in
accordance with the terms of the Indenture, to otherwise comply with any
requirement of the Indenture,; or to provide for the issuance of the Exchange
Notes, which will have terms substantially identical to the other Outstanding
Notes except for the requirement of a Private Placement Legend and related
transfer restrictions under the Securities Act and the Indenture and as to the
applicability of additional interest payable as provided in Section 2.14
of the Indenture, and which will be treated, together with any other
Outstanding Notes, as a single issue of securities; or to provide for the
issuance of Additional Notes as permitted by Section 2.2(c) and Section 2.13
of the Indenture, which will have terms substantially identical to the other
Outstanding Notes except as specified in Section 2.13 or Section 2.14
of the Indenture, and which will be treated, together with any other
Outstanding Notes, as a single issue of securities; or to provide for a
successor Trustee in accordance with the terms of the Indenture; or to
otherwise comply with any requirement of this Indenture; or to make any other
changes which do not adversely affect the rights of any of the Holders in any
material respect.


 


12.                                 Defaults
and Remedies


 


If an Event of Default occurs and is continuing, the
Trustee or the Holders of at least 25% in principal amount of the Notes may
declare all the Notes to be due and payable immediately.  Certain events of bankruptcy or insolvency
are Events of Default which will result in the Notes being due and payable
immediately upon the occurrence of such Events of Default.


 


Holders may not enforce the Indenture or the Notes
except as provided in the Indenture.  The
Trustee may refuse to enforce the Indenture or the Notes unless it receives
reasonable indemnity or security. 
Subject to certain limitations, Holders of a majority in principal
amount of the Outstanding Notes may direct the Trustee in its exercise of any
trust or power.  The Trustee may withhold
from Holders notice of any continuing Default or Event of Default (except a
Default or Event of Default in payment of principal or interest) if it
determines that withholding notice is in their interest.


 


13.                                 Trustee
Dealings with the Company


 


Subject to certain limitations set forth in the
Indenture, the Trustee under the Indenture, in its individual or any other
capacity, may become the owner or pledgee of Notes and may otherwise deal with
and


 


6





















 


collect obligations owed
to it by the Company or its Affiliates and may otherwise deal with the Company
or its Affiliates with the same rights it would have if it were not Trustee.


 


14.                                 No
Recourse Against Others


 


An incorporator, director, officer, employee,
stockholder or controlling person, as such, of the Company or any Subsidiary
Guarantor shall not have any liability for any obligations of the Company under
the Notes, the Indenture or any Note Guarantee or for any claim based on, in
respect of or by reason of such obligations or their creation.  By accepting a Note, each Holder waives and
releases all such liability.  The waiver
and release are part of the consideration for the issue of the Notes.


 


15.                                 Authentication


 


This Note shall not be valid until an authorized
signatory of the Trustee (or an authenticating agent acting on its behalf)
manually signs the certificate of authentication on the other side of this
Note.


 


16.                                 Abbreviations


 


Customary abbreviations may be used in the name of a
Holder or an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants
by the entirety), JT TEN (=joint tenants with rights of survivorship and not as
tenants in common), CUST (=custodian) and U/G/M/A (=Uniform Gift to Minors
Act).


 


17.                                 CUSIP
or ISIN Numbers


 


Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures the Company has caused
CUSIP or ISIN numbers to be printed on the Notes and has directed the Trustee
to use CUSIP or ISIN numbers in notices of redemption as a convenience to
Holders.  No representation is made as to
the accuracy of such numbers either as printed on the Notes or as contained in
any notice of redemption and reliance may be placed only on the other
identification numbers placed thereon.


 


18.                                 Governing
Law


 


This Note shall be governed by, and construed in
accordance with, the laws of the State of New York.


 


19.                                 Currency
of Account; Conversion of Currency.


 


U.S. Legal Tender is the sole currency of account and
payment for all sums payable by the Company and the Subsidiary Guarantors under
or in connection with the Notes or the Indenture, including damages.  The Company and the Subsidiary Guarantors
will indemnify the Holders as provided in respect of the conversion of currency
relating to the Notes and the Indenture.


 


20.                                 Agent
for Service; Submission to Jurisdiction; Waiver of Immunities.


 


The Company and the Subsidiary Guarantors have agreed
that any suit, action or proceeding against the Company brought by any Holder
or the Trustee arising out of or based upon the Indenture or the Notes may be
instituted in any state or federal court in The City of New York, New
York.  The Company and the Subsidiary
Guarantors have irrevocably submitted to the jurisdiction of such courts for
such purpose and waived, to the fullest extent permitted by law, trial by jury,
any objection they may now or hereafter have to the laying of venue of any such
proceeding, and any claim they may now or hereafter have that any proceeding in
any such court is brought in an inconvenient forum and any right to which any
of them may be entitled, on account of place of residence or domicile.  The Company and the Subsidiary Guarantors
have appointed CT Corporation System with offices currently at 111 Eighth
Avenue, 13th Floor, New York, New York 10011, as each of
their authorized agent upon whom all writs, process and summonses may be served
in any suit, action or proceeding arising out of or based upon the Indenture or
the Notes which may be instituted in any state or federal court in The City of
New York, New


 


7





















 


York.  To the extent that any of the Company and the
Subsidiary Guarantors have or hereafter may acquire any immunity (sovereign or
otherwise) from any legal action, suit or proceeding, from jurisdiction of any
court or from set-off or any legal process (whether service or notice,
attachment in aid or otherwise) with respect to themselves or any of their
property, the Company and the Subsidiary Guarantors have irrevocably waived and
agreed not to plead or claim such immunity in respect of their obligations
under the Indenture or the Notes.


 


The Company will furnish to any Holder upon written
request and without charge to the Holder a copy of the Indenture which has in
it the text of this Note in larger type. 
Requests may be made to:


 


Desarrolladora Homex, S.A. de C.V.


Gutemberg #219


Colonia Nueva Anzures


Miguel Hidalgo, 11590


Mexico City, Mexico


 


8





















 


ASSIGNMENT FORM


 


To assign this Note, fill in the form below:


 


I or we assign and transfer this Note to


 


(Print or type assignee’s
name, address and zip code)


 


(Insert assignee’s Social
Security or Tax I.D. Number)


 


and irrevocably appoint agent to transfer this Note on
the books of the Company.  The agent may
substitute another to act for him.


 


	
  Date:

  	
   

  	
   

  	
  Your Signature:

  	
   

  	
   

  
	
   

  	
   

  
	
  Signature Guarantee:

  	
   

  	
   

  	
   

  
	
   

  	
  (Signature must be
  guaranteed)

  	
   

  	
   

  
	
   

  	
   

  
	
   

  
	
  Sign exactly as your name
  appears on the other side of this Note.

  	
   

  
								



 


The signature(s) should be guaranteed by an eligible
guarantor institution (banks, stockbrokers, savings and loan associations and
credit unions with membership in an approved signature guarantee medallion
program), pursuant to Exchange Act Rule 17Ad-15.


 


9





















 


[To
be attached to Global Notes only:


 


SCHEDULE OF INCREASES
OR DECREASES IN GLOBAL NOTE


 


The following increases or
decreases in this Global Note have been made:


 


	
  Date of

  Exchange

  	
   

  	
  Amount of decrease

  in Principal Amount

  of this Global Note

  	
   

  	
  Amount of increase

  in Principal Amount

  of this Global Note

  	
   

  	
  Principal Amount of

  this Global Note

  following such

  decrease or increase

  	
   

  	
  Signature of

  authorized signatory

  of Trustee or Note

  Custodian

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



]


 


10





















 


OPTION
OF HOLDER TO ELECT PURCHASE


 


If you want to elect to have this Note purchased by
the Company pursuant to Section 3.12 or Section 3.8
of the Indenture, check either box:


 


	
  o

  	
   

  	
  o

  	
   

  
	
  Section 3.12

  	
   

  	
  Section 3.8

  	
   

  



 


If you want to elect to have only part of this Note
purchased by the Company pursuant to Section Section 3.12
or Section 3.8  of the
Indenture, state the principal amount (which must be an integral multiple of
US$1,000) that you want to have purchased by the Company:  US$


 


	
  Date:

  	
   

  	
   

  	
  Your Signature:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  (Sign
  exactly as your name appears on the

  other side of the Note)

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Signature
  Guarantee:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (Signature
  must be guaranteed)

  	
   

  



 


The signature(s) should be guaranteed by an eligible
guarantor institution (banks, stockbrokers, savings and loan associations and
credit unions with membership in an approved signature guarantee medallion
program), pursuant to Exchange Act Rule 17Ad-15.


 


11





















 


EXHIBIT B


 


FORM OF CERTIFICATE
FOR TRANSFER TO QIB


 


[Date]


 


The Bank of New York


[Address of Trustee]


 


Re:                               7.5% Senior Guaranteed Notes due September 28,
2015 (the “Notes”)

of Desarrolladora Homex, S.A. de C.V. (the “Company”)


 


Ladies and Gentlemen:


 


Reference is hereby made to the Indenture, dated as of
September 28, 2005 (as amended and supplemented from time to time, the “Indenture”),
between the Company, the Subsidiary Guarantors party thereto and The Bank of
New York, as Trustee.  Capitalized terms
used but not defined herein shall have the meanings given them in the
Indenture.


 


This letter relates to US$                       aggregate
principal amount of Notes [in the case of a
transfer of an interest in a Regulation S Global Note:  which represents an interest in a
Regulation S Global Note beneficially owned by] the undersigned (the “Transferor”)
to effect the transfer of such Notes in exchange for an equivalent beneficial
interest in the Rule 144A Global Note.


 


In connection with such request, and with respect to
such Notes, the Transferor does hereby certify that such Notes are being
transferred in accordance with Rule 144A under the Securities Act of 1933,
as amended (“Rule 144A”), to a transferee that the Transferor reasonably
believes is purchasing the Notes for its own account or an account with respect
to which the transferee exercises sole investment discretion, and the
transferee, as well as any such account, is a “qualified institutional buyer”
within the meaning of Rule 144A, in a transaction meeting the requirements
of Rule 144A and in accordance with applicable securities laws of any
state of the United States or any other jurisdiction.


 


B-1





















 


You and the Company are entitled to rely upon this
letter and are irrevocably authorized to produce this letter or a copy hereof
to any interested party in any administrative or legal proceedings or official
inquiry with respect to the matters covered hereby.


 


	
   

  	
  Very
  truly yours,

  
	
   

  	
   

  
	
   

  	
  [Name
  of Transferor]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Authorized
  Signature

  



 


B-2





















 


EXHIBIT C


 


FORM OF CERTIFICATE
FOR TRANSFER

PURSUANT TO REGULATION S


 


[Date]


 


The Bank of New York


 


[Address of Trustee]


 


Re:                               7.5% Senior Guaranteed Notes due September 28,
2015 (the “Notes”)

of Desarrolladora Homex, S.A. de C.V. (the “Company”)


 


Ladies and Gentlemen:


 


Reference is hereby made to the Indenture, dated as of
September 28, 2005 (as amended and supplemented from time to time, the “Indenture”),
between the Company, the Subsidiary Guarantors party thereto and The Bank of
New York, as Trustee.  Capitalized terms
used but not defined herein shall have the meanings given them in the
Indenture.


 


In connection with our proposed sale of US$                    aggregate
principal amount of the Notes [in the case
of a transfer of an interest in a 144A Global Note:  , which represent an interest in a
144A Global Note beneficially owned by] the undersigned (“Transferor”), we
confirm that such sale has been effected pursuant to and in accordance with
Regulation S under the Securities Act of 1933, as amended (the “Securities
Act”), and, accordingly, we represent that:


 


(a)                                  the
offer of the Notes was not made to a person in the United States;


 


(b)                                 either
(i) at the time the buy order was originated, the transferee was outside
the United States or we and any person acting on our behalf reasonably believed
that the transferee was outside the United States or (ii) the transaction
was executed in, on or through the facilities of a designated off-shore
securities market and neither we nor any person acting on our behalf knows that
the transaction has been pre-arranged with a buyer in the United States;


 


(c)                                  no
directed selling efforts have been made in the United States in contravention
of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S, as applicable;


 


(d)                                 the
transaction is not part of a plan or scheme to evade the registration
requirements of the Securities Act; and


 


(e)                                  we
are the beneficial owner of the principal amount of Notes being transferred.


 


In addition, if the sale is made during a Distribution
Compliance Period and the provisions of Rule 904(b)(1) or Rule 904(b)(2) of
Regulation S are applicable thereto, we confirm that such sale has been
made in accordance with the applicable provisions of Rule 904(b)(1) or
Rule 904(b)(2), as the case may be.


 


You and the Company are entitled to rely upon this
letter and are irrevocably authorized to produce this letter or a copy hereof
to any interested party in any administrative or legal proceedings or official
inquiry with respect to the matters covered hereby.  Terms used in this letter have the meanings
set forth in Regulation S.


 


	
   

  	
  Very
  truly yours,

  
	
   

  	
   

  
	
   

  	
  [Name
  of Transferor]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Authorized
  Signature

  



 


C-1





















 


EXHIBIT D


 


FORM OF CERTIFICATE
FOR TRANSFER

PURSUANT TO RULE 144


 


[Date]


 


The Bank of New York


[Address of Trustee]


 


Re:                               7.5% Senior Guaranteed Notes due September 28,
2015 (the “Notes”)

of Desarrolladora Homex, S.A. de C.V. (the “Company”)


 


Ladies and Gentlemen:


 


Reference is hereby made to the Indenture, dated as of
September 28, 2005 (as amended and supplemented from time to time, the “Indenture”),
between the Company, the Subsidiary Guarantors party thereto and The Bank of
New York, as Trustee.  Capitalized terms
used but not defined herein shall have the meanings given them in the
Indenture.


 


In connection with our proposed sale of US$                    aggregate
principal amount of the Notes [in the case
of a transfer of an interest in a 144A Global Note:  , which represent an interest in a
144A Global Note beneficially owned by] the undersigned (“Transferor”), we
confirm that such sale has been effected pursuant to and in accordance with Rule 144
under the Securities Act.


 


You and the Company are entitled to rely upon this
letter and are irrevocably authorized to produce this letter or a copy hereof
to any interested party in any administrative or legal proceedings or official
inquiry with respect to the matters covered hereby.


 


	
   

  	
  Very
  truly yours,

  
	
   

  	
   

  
	
   

  	
  [Name
  of Transferor]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Authorized
  Signature

  



 


D-1





















 


EXHIBIT E


 


FORM OF SUPPLEMENTAL
INDENTURE

FOR ADDITIONAL NOTE GUARANTEE


 


This Supplemental Indenture, dated as of [                      ]
(this “Supplemental Indenture”), between [name of Additional Subsidiary
Guarantor], a [                  ]
[corporation][limited liability company] (the “New Subsidiary Guarantor”),
Desarrolladora Homex, S.A. de C.V., a corporation (sociedad anónima de capital variable) organized and existing
under the laws of the United Mexican States (together with its successors and
assigns, the “Company”), each other Subsidiary Guarantor under the
Indenture referred to below, and The Bank of New York, as Trustee under the
Indenture referred to below.


 


W I T N E S S E T H:


 


WHEREAS, the Company and the Trustee have heretofore
executed and delivered an Indenture, dated as of September 28, 2005 (as
amended, supplemented, waived or otherwise modified, the “Indenture”),
providing for the issuance of 7.5% Senior Guaranteed Notes due September 28,
2015 of the Company (the “Notes”);


 


WHEREAS, pursuant to Section 10.5 of the
Indenture, the Company is required to cause each Wholly-Owned Restricted and
Significant Subsidiary created or acquired by the Company to execute and
deliver to the Trustee an Additional Note Guarantee pursuant to which such
Wholly-Owned Restricted and Significant Subsidiary will unconditionally
guarantee, jointly and severally with the other Subsidiary Guarantors, the
Company’s full and prompt payment of the Obligations (as defined in the
Indenture) in respect of the Indenture and the Notes; and


 


WHEREAS, pursuant to Section 10.1 of the
Indenture, the Trustee, the Company and the existing Subsidiary Guarantors are
authorized to execute and deliver this Supplemental Indenture to supplement the
Indenture, without the consent of any Holder;


 


NOW, THEREFORE, in consideration of the foregoing and
for other good and valuable consideration, the receipt of which is hereby
acknowledged, the New Subsidiary Guarantor, the Company, each other Subsidiary
Guarantor and the Trustee mutually covenant and agree for the equal and ratable
benefit of the holders of the Notes as follows:


 


ARTICLE I

DEFINITIONS


 


Section 1.1. 
Defined Terms.  Unless
otherwise defined in this Supplemental Indenture, terms defined in the
Indenture are used herein as therein defined.


 


ARTICLE II

AGREEMENT TO BE BOUND; GUARANTEE


 


Section 2.1. 
Agreement to be Bound.  The
New Subsidiary Guarantor hereby becomes a party to the Indenture as a
Subsidiary Guarantor and as such will have all of the rights and be subject to
all of the obligations and agreements of a Subsidiary Guarantor under the
Indenture.  The New Subsidiary Guarantor
hereby agrees to be bound by all of the provisions of the Indenture applicable
to a Subsidiary Guarantor and to perform all of the obligations and agreements
of a Subsidiary Guarantor under the Indenture.


 


Section 2.2. 
Guarantee.  The New Subsidiary
Guarantor hereby fully, unconditionally and irrevocably guarantees, as primary
obligor and not merely as surety, jointly and severally with each other
Subsidiary Guarantor, to each Holder of the Notes and the Trustee, the full and
punctual payment when due, whether at maturity, by acceleration, by redemption
or otherwise, of the Obligations, all as more fully set forth in Article X
of the Indenture.


 


E-1





















 


Section 2.3. 
Waivers.  (a)  The New
Subsidiary Guarantor hereby waives presentation to, demand of payment from and
protest to the Company of any of the Obligations and also waives notice of
protest for nonpayment.  The New
Subsidiary Guarantor waives notice of any default under the Notes or the Obligations.  The obligations of the New Subsidiary
Guarantor hereunder shall not be affected by (i) the failure of any Holder
to assert any claim or demand or to enforce any right or remedy against the
Company or any other Person under this Indenture, the Notes or any other
agreement or otherwise; (ii) any extension or renewal of any thereof; (iii) any
rescission, waiver, amendment or modification of any of the terms or provisions
of this Indenture, the Notes or any other agreement; (iv) the release of
any security held by any Holder or the Trustee for the Obligations or any of
them; (v) the failure of any Holder to exercise any right or remedy
against any other Subsidiary Guarantor; or (vi) any change in the
ownership of the Company.


 


(b)                                 The
New Subsidiary Guarantor further expressly waives irrevocably and
unconditionally:


 


(i)                                     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 Subsidiary Guarantor or any other guarantor) before claiming
from it under this Supplemental Indenture;


 


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


 


(iii)                               Any
right to which it may be entitled to have claims hereunder divided between the
Subsidiary Guarantors;


 


(iv)                              To
the extent applicable, the benefits of orden, excusión,
division, quita and espera
and any right specified in articles 2814, 2815, 2817, 2818, 2819, 2820, 2821,
2822, 2823, 2826, 2837, 2838, 2839, 2840, 2845, 2846, 2847 and any other
related or applicable articles that are not explicitly set forth herein because
of Subsidiary Guarantor’s knowledge thereof of the Código Civil Federal of Mexico, and the Código Civil of each State of the Mexican
Republic and the Federal District of Mexico.


 


The obligations assumed by each Subsidiary Guarantor
hereunder and under the Indenture shall not be affected by the absence of
judicial request of payment by a Holder to the Company or by whether any such
person takes timely action pursuant to articles 2848 and 2849 of the Código Civil Federal of Mexico and the Código Civil of each State of the Mexican
Republic and the Federal District of Mexico and each Subsidiary Guarantor
hereby expressly waives the provisions of such articles.


 


ARTICLE III

MISCELLANEOUS


 


Section 3.1. 
Notices.  Any notice or
communication delivered to the Company under the provisions of the Indenture
shall constitute notice to the New Subsidiary Guarantor.


 


Section 3.2. 
Parties.  Nothing expressed
or mentioned herein is intended or shall be construed to give any Person, firm
or corporation, other than the Holders and the Trustee, any legal or equitable
right, remedy or claim under or in respect of this Supplemental Indenture or
the Indenture or any provision herein or therein contained.


 


Section 3.3. 
Governing Law, etc.  This
Supplemental Indenture shall be governed by the provisions set forth in Section 11.8
of the Indenture.


 


Section 3.4. 
Severability.  In case any
provision in this Supplemental Indenture shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be


 


E-2





















 


affected or impaired
thereby and such provision shall be ineffective only to the extent of such
invalidity, illegality or unenforceability.


 


Section 3.5. 
Ratification of Indenture; Supplemental Indenture Part of
Indenture.  Except as expressly
amended hereby, the Indenture is in all respects ratified and confirmed and all
the terms, conditions and provisions thereof shall remain in full force and
effect.  This Supplemental Indenture
shall form a part of the Indenture for all purposes, and every holder of Notes
heretofore or hereafter authenticated and delivered shall be bound hereby.  The Trustee makes no representation or
warranty as to the validity or sufficiency of this Supplemental Indenture.


 


Section 3.6. 
Duplicate and Counterpart Originals.  The parties may sign any number of copies of
this Supplemental Indenture.  One signed
copy is enough to prove this Supplemental Indenture.  This Supplemental Indenture may be executed
in any number of counterparts, each of which so executed shall be an original,
but all of them together represent the same agreement.


 


Section 3.7. 
Headings.  The headings of
the Articles and Sections in this Supplemental Indenture have been inserted for
convenience of reference only, are not intended to be considered as a part
hereof and shall not modify or restrict any of the terms or provisions hereof.


 


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


 


	
   

  	
  DESARROLLADORA
  HOMEX, S.A. DE C.V.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
  [NAME
  OF NEW SUBSIDIARY GUARANTOR],

  
	
   

  	
   

  	
  as
  a Subsidiary Guarantor

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


[Complete the following
signature block for each existing Subsidiary Guarantor:]


 


	
   

  	
  [NAME
  OF SUBSIDIARY GUARANTOR],

  
	
   

  	
   

  	
  as
  a Subsidiary Guarantor

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
  PROYECTOS
  INMOBILIARIOS DE CULIACÁN, S.A.

  
	
   

  	
   

  	
  DE
  S.V.,

  
	
   

  	
   

  	
  as
  Subsidiary Guarantor

  



 


E-3





















 


	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  DESARROLLADORA
  DE CASAS DEL NOROESTE,

  
	
   

  	
   

  	
  S.A.
  DE C.V.,

  
	
   

  	
   

  	
  as
  Subsidiary Guarantor

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
  CASAS
  BETA DEL CENTRO, S.A. DE C.V.,

  
	
   

  	
   

  	
  as
  Subsidiary Guarantor

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
  CASAS
  BETA DEL NORTE, S.A. DE C.V.,

  
	
   

  	
   

  	
  as
  Subsidiary Guarantor

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
  CASAS
  BETA DEL NOROESTE, S.A. DE C.V.,

  
	
   

  	
   

  	
  as
  Subsidiary Guarantor

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
  EDIFICACIONES
  BETA S.A. DE C.V.,

  
	
   

  	
   

  	
  as
  Subsidiary Guarantor

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
  EDIFICACIONES
  BETA DEL NOROESTE, S.A. DE

  
	
   

  	
   

  	
  C.V.,

  
	
   

  	
   

  	
  as
  Subsidiary Guarantor

  



 


E-4





















 


	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
  EDIFICACIONES
  BETA DEL NORTE, S.A. DE C.V.,

  
	
   

  	
   

  	
  as
  Subsidiary Guarantor

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  THE
  BANK OF NEW YORK,

  
	
   

  	
   

  	
  as
  Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Solely
  for the purposes of accepting the

  appointment of Luxembourg Paying Agent,

  together with the rights, protections and immunities

  granted to the Trustee under Article VII, which shall

  apply mutatis mutandis to the
  Luxembourg

  Paying Agent,

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  THE
  BANK OF NEW YORK (LUXEMBOURG), S.A.,

  	
   

  	
   

  
	
   

  	
  as
  Luxembourg Paying Agent

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
   

  
							



 


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