ENA Sur Trust Announces Commencement of Consent Solicitation

PANAMA CITY, Panama, Oct. 16, 2020 /PRNewswire/ -- ENA Sur Trust (the "Issuer"), a trust constituted pursuant to Law 1, 1984 of the Republic of Panama, in accordance the Trust Agreement executed between Empresa Nacional de Autopista, S.A. ("ENA") and ENA Sur S.A. ("ENA Sur") as settlors and the Bank of Nova Scotia (Panama), S.A. (as successor in interest to Banco Citibank (Panama), S.A.) not in its individual capacity but solely as trustee under the Trust Agreement (the "ENA Sur Trustee"), announced today that it has commenced a solicitation (the "Consent Solicitation") of consents (the "Consents") upon the terms and subject to the conditions set forth in a Notice of Consent Solicitation (as it may be amended or supplemented from time to time, the "Notice"), dated as of October 16, 2020, to proposed amendments (the "Proposed Amendments") of certain provisions of: (i) the Indenture, dated as of August 12, 2011 (as amended or supplemented, the "Indenture"), by and between the ENA Sur Trustee and The Bank of New York Mellon, as indenture trustee (the "Indenture Trustee"), (ii) the Support Agreement, dated as of August 12, 2011 (as amended or supplemented, the "Support Agreement"), by and among ENA, ENA Sur (as successor in interest to ICA Panama, S.A.), the Indenture Trustee and the ENA Sur Trustee, (iii) the Trust Agreement, dated as of August 12, 2011 (as amended or supplemented, the "Trust Agreement"), by and among ENA, ENA Sur and the ENA Sur Trustee, (iv) the Assignment Agreement, dated as of August 12, 2011 (as amended or supplemented, the "Assignment Agreement"), by and among ENA Sur, the ENA Sur Trustee and BG Trust, Inc. ("FFD Debt Trustee"), and (v) the Servicing Agreement, dated as of August 12, 2011 (as amended and supplemented, the "Servicing Agreement"), by and among ENA, ENA Sur, ENA Sur Trust, and the Indenture Trustee, entered into in connection with the issuance of the following Notes of the Issuer:

The Issuer is soliciting Consents from the Holders of the Notes mainly to, among others:

(i)  Add an additional payment option for the outstanding Notes to permit the repurchase price to be paid to an account at The Bank of New York Mellon, acting as escrow agent, provided that funds deposited into such account must be used to pay in full the repurchase price and the source of the payment into such account is an issue of indebtedness incurred for refinancing in full the indebtedness represented by the Notes;

(ii)  Reduce the minimum period to issue the redemption notice to not less than 5 days;

(iii)  Clarify that, for purposes of the satisfaction and discharge, the Issuer must have paid (or caused to be paid) the principal, interest and other amounts due and owing on the Notes, which requirement may be satisfied when the Notes have been called for redemption and the Issuer has irrevocably deposited or caused to be deposited with the Indenture Trustee in trust an amount of funds sufficient for the purpose of paying and discharging the entire indebtedness on the currently outstanding Notes for principal, interest and other amounts due and owing on the Notes, as further set forth in the Notice and must have agreed to promptly and irrevocably deposit or cause to be deposited with the Indenture Trustee in trust additional amounts if the calculation of funds made on the date the Notes were called for redemption prove to have been insufficient when the amount of make-whole premium required to be made is definitively calculated;

(iv)  Provide that the make-whole premium would be calculated as of 3:00 pm New York time on the two (2) business days prior the related redemption date;

(v)  Clarify that the then-current bid side yield on the U.S. Treasury Bond having a maturity date closest to the remaining weighted average life on the Series 2011 Class A Notes will be determined by the Issuer to be based on the yield, under the heading which represents the average for the immediately preceding week, as compiled and published in the most recent Federal Reserve Statistical Release H.15 which has become publicly available at least two business days prior to the redemption date (or, if such Statistical Release is no longer published, any publicly available source of similar market data selected by the Issuer), and that if such period is not equal to the constant maturity of U.S. Treasury securities for which a weekly average yield is given, the Issuer will obtain such yield by linear interpolation (calculated to the nearest one-twelfth of a year) from the weekly average yields of U.S. Treasury securities constant maturities for which such yields are given; provided, however, that if the period from the redemption date to such maturity date is less than one year, the yield to maturity of the U.S. Treasury securities with a constant maturity of one year will be used;

(vi)  Clarify that the date in which Indenture Trustee delivers the instruments set forth in Section 9.1 of the Indenture acknowledging the satisfaction and discharge of the Indenture will be the date on which all amounts payable under the transaction documents by ENA, ENA Sur and/or the Issuer have been paid in full, which can be evidenced by (among other documentation) the delivery by the Indenture Trustee of the instruments described in Section 9.1 of the Indenture acknowledging the satisfaction and discharge of the Indenture;

(vii)  Include a direction and authorization from more than 60% of the holders of the Notes, on the date of determination, to the Indenture Trustee to execute, direct, acknowledge and agree with, or consent to, as the case may be, the Proposed Amendments;

(viii)  Include that the release of funds by (or at the direction of) the Issuer to the Information Agent (as defined below) for payment to Holders who have provided their Consents under the Consent Solicitation will be deemed to be a certification by the Issuer that such conditions are satisfied or waived and that the Indenture Trustee shall have no obligation to determine or verify whether such conditions have been satisfied;

(ix)  Permit ENA Sur to guarantee the new indebtedness expected to be incurred by a separate party the proceeds of which will be used (in part) to redeem and repay the outstanding Notes, and permit ENA to guarantee such new indebtedness or undertake obligations as might be required and permitted in connection with such new indebtedness;

(x)  Reduce the minimum period for the delivery by ENA of the irrevocable written notice that ENA is required to provide under the Indenture to no later than the same business day the Issuer is required to provide a notice of redemption under the Indenture;

(xi)  Provide that any shortfall in amounts available for payment of the repurchase price on any redemption date (including in respect of any amounts necessary to pay the related make-whole premium on a redemption date) is to be made to the Indenture Trustee on or before the redemption date for deposit into the primary payment account, and if such payment is to be made on the redemption date, it shall be made as promptly as possible on such date;

(xii)  Provide that the delivery by the Indenture Trustee of the instruments described in Section 9.1 of the Indenture acknowledging the satisfaction and discharge of the Indenture shall be deemed to mean, for purposes of Section 9.2 of the Trust Agreement, that all amounts owing under the Notes, the Indenture and the other finance documents shall have been paid in full;

(xiii)  Once the Indenture Trustee delivers the instruments set forth in Section 9.1 of the Indenture acknowledging the satisfaction and discharge of the Indenture, (i) assign and transfer to ENA (or to any other person as instructed by ENA and ENA Sur) the share collateral, to ENA Sur (or to any other person as instructed by ENA or ENA Sur) the assigned rights, and in general, to each settlor (or to any other person, as instructed by each settlor) any amount or asset assigned and transferred by such settlor to the trustee; and (ii) assign and transfer to ENA Sur (or any other person as instructed by ENA Sur) any amounts on deposit in the transaction accounts and any other trust assets; (i) and (ii) shall be assigned and/or transferred net of any amount payable to the beneficiaries or costs, taxes and expenses incurred in connection with such assignment and transfer; and

(xiv)  Provide that the delivery by the Indenture Trustee of the instruments described in Section 9.1 of the Indenture acknowledging the satisfaction and discharge of the Indenture shall be deemed to mean, for purposes of Section 9.2 of the Trust Agreement, that all amounts owing under the Notes, the Indenture and the other finance documents shall have been paid in full.

The Consent Solicitation will expire at 11:59 p.m., New York City time, on October 27, 2020, or such later time and date to which the Consent Solicitation is extended (such time and date, the "Expiration Time"), unless earlier terminated. 

The Consent Solicitation is subject to the receipt of valid Consents of the Holders of at least 60% in principal amount of the outstanding Notes (the "Requisite Consents") prior to the Expiration Time (and which were not validly revoked prior to 11:59 p.m. New York City time on October 26, 2020 (the "Withdrawal Time")).

The Issuer's obligation to accept properly completed, executed and dated Consents (which were not validly revoked prior to the Withdrawal Time) and to pay the Consent Fee as described herein, is conditioned upon the following conditions (collectively, the "Payment Conditions"): (i) the execution of the Proposed Amendments and the absence of any law or regulation that would, and the absence of any injunction or action or other proceeding (pending or threatened) that (in the case of any action or proceeding if adversely determined) would, make unlawful or invalid or enjoin the implementation of the Proposed Amendments or the payment of the Consent Fee (as defined below) or that would question the legality or validity thereof, (ii) the execution (refrendo) of the Supplemental Indenture, the Supplemental Support Agreement, the Supplemental Trust Agreement, the Supplemental Assignment Agreement and the Supplemental Servicing Agreement by the General Comptroller of the Republic (Contraloría General de la República), (iii) the registration of the Supplemental Indenture, the Supplemental Support Agreement, the Supplemental Trust Agreement, the Supplemental Assignment Agreement and the Supplemental Servicing Agreement with the Superintendency of Capital Markets of the Republic of Panama (Superintendencia del Mercado de Valores de la República de Panamá), and (iv) the absence of any law or regulation that would, and the absence of any injunction or action or other proceeding (pending or threatened) that (in the case of any action or proceeding if adversely determined) would, make unlawful or invalid or enjoin the implementation of the Proposed Amendments or the payment of the Consent Fee or that would question the legality or validity thereof.

In the event that the Payment Conditions, including the receipt of the Requisite Consents, are satisfied or waived by the Issuer, the Issuer and ENA Sur will pay to the Depository Trust Company ("DTC") for payment to each of the Holders of outstanding Notes who delivered valid Consents prior to the Expiration Time, and who have not validly revoked such Consents prior to the Withdrawal Time, a cash payment of U.S.$2.50 per U.S.$1,000 of the currently outstanding principal amount of the Notes for which Consents have been so delivered (and not validly revoked) by such Holders (the "Consent Fee"). With respect to the Class A Notes, Holders who properly deliver their Consent prior to the Expiration Date will receive, for each U.S$1,000 original principal amount of Class A Notes, the Consent Fee multiplied by the Class A Notes Scaling Factor. With respect to the Class B Notes, Holders who properly deliver their Consent prior to the Expiration Date will receive, for each U.S$1,000 original principal amount of Class B Notes, the Consent Fee multiplied by the Class B Notes Scaling Factor.

The Issuer and ENA Sur will pay the Consent Fee no earlier than five business days following the Expiration Time and in any not case until such time as the Payment Conditions have been satisfied or waived by the Issuer. Holders of Notes for which no valid Consent is delivered prior to the Expiration Time (or Notes for which a valid Consent is delivered, but such Consent is validly revoked prior to the Withdrawal Time) will not receive any Consent Fee, even though the Proposed Amendments, once operative, will bind all Holders and their transferees.

The Issuer has engaged BofA Securities, Inc. to act as solicitation agent (the "Solicitation Agent") and D.F. King & Co., Inc. to act as information agent (the "Information Agent") for the Consent Solicitation.  Questions regarding the Consent Solicitation may be directed to BofA Securities, Inc. at +1 (888) 292-0070 (toll-free) or at +1 (646) 855-8988 (phone). Requests for documents, including the Notice, relating to the Consent Solicitation may be directed to D.F. King & Co., Inc. at +1 (800) 591-8263 (toll-free), +1 (212) 269-5550 (banks and brokers) or by email to [email protected].

This press release is for informational purposes only and the Consent Solicitation is only being made pursuant to the terms of, and subject to the conditions specified in, the Notice.  The Consent Solicitation is not being made to, and Consents are not being solicited from, Holders of Notes in any jurisdiction in which it is unlawful to make such Consent Solicitation or grant such Consent.  None of the Issuer, ENA, ENA Sur Trustee, ENA Sur, the Indenture Trustee, the Solicitation Agent or the Information Agent makes any recommendation as to whether or not Holders should deliver Consents.  Each Holder must make its own decision as to whether or not to deliver Consents.  This communication does not constitute an offer to sell or the solicitation of an offer to buy any securities.

About the Issuer

The Issuer is a trust constituted pursuant to Law 1-1984 dated January 5, 1984, of Panama, in accordance with the Trust Agreement executed between ENA and ENA Sur, as settlors and second beneficiaries under the Trust Agreement, and the ENA Sur Trustee, acting not in its individual capacity but solely as trustee.

The Issuer is a legal vehicle that has no subsidiaries, no employees and no business or debt other than pursuant to the terms of the transaction documents. According to the Trust Agreement, the ENA Sur Trustee, acting as the trustee under the Trust Agreement, will not be personally liable for any amounts payable, among others, in respect of Notes or any other transaction documents, except for certain customary situations involving gross negligence or willful misconduct, as the case may be, and as finally determined by a court of competent jurisdiction. Accordingly, pursuant to the transaction documents, in the event, among others, of a payment default by the Issuer on the Notes, neither the Indenture Trustee nor any other party will have any recourse to the ENA Sur Trustee or any of its affiliates, in their individual capacity, or of their individual assets or to any other person other than recourse to the collateral held by the Issuer, for the benefit of the Holders.

The Concessionaire

The "Concessionaire" is ENA Sur, a Panamanian sociedad anónima (corporation). Since August 12, 2011, ENA Sur has been a wholly-owned subsidiary of ENA.

The Concessionaire holds the Concession to, among other things, study, design, construct, maintain, administer, and operate the Corredor Sur toll road in Panama City, Panama under the administrative concession system governed by the laws of Panama. The Concessionaire holds the Concession pursuant to the Concession Agreement, which was entered into between the Panamanian government acting through Ministry of Public Works and the Concessionaire on August 6, 1996 and authorized by the Panamanian Contraloría General de la República (Comptroller General) on August 8, 1996 (the "Corredor Sur Concession Agreement").

The Concessionaire's primary source of revenues is the collection of tolls along Corredor Sur. In addition to toll revenues, the Corredor Sur Concession Agreement allows the Concessionaire to exploit certain rights with respect to designated segments within the Concession area.

Forward-Looking Statements

This press release may contain forward-looking information and statements regarding the Issuer, ENA Sur, ENA and the Consent Solicitation. Any statements included in this press release that address activities, events or developments that the Issuer, ENA Sur and ENA will do or that may occur in the future are forward looking statements, these include among others, statements as to: (i) the Proposed Amendments; (ii) the expected payment of the Consent Fee; and (iii) the anticipated incurrence of new indebtedness, including through a possible offering of additional Notes under the Indenture.  Estimates and forward-looking statements involve risks and uncertainties and do not guarantee future performance, as actual results or developments may be substantially different from the expectations described in the forward-looking statements.  The events referred to in the estimates and forward-looking statements included in this press release may or may not occur, and our business performance and results of operation may differ materially from those expressed in our estimates and forward looking statements, due to factors that might include: adverse effects in the global economy, including adverse effects as a result of the COVID-19 outbreak and related economic shutdown and its impact on the Panamanian economy, or other global or local epidemics and the Panamanian government's response, the pace of recovery of traffic demand, uncertainty relating to whether the Consent Solicitation will be successfully completed or that it will be consummated on the terms currently contemplated and other factors listed in the Consent Solicitation under the heading "Statement Regarding Forward-Looking Statements." Estimates and forward-looking statements refer only to the date when they were made, and none of the Issuer, the Indenture Trustee, the Information Agent or the Solicitation Agent undertakes any obligation to update or revise any estimate or forward-looking statement due to new information, future events or otherwise. Investors are warned not to place undue reliance on any estimates or forward-looking statements in making decisions regarding investment in the Notes.

Contact Details

Leopoldo Peralta, Chief Financial Officer, Empresa Nacional de Autopista, S.A.
Phone: +507 226-7693
Email: [email protected]

SOURCE ENA Sur Trust