YOU MUST READ THE BELOW IN ITS ENTIRETY BEFORE PROCEEDING TO ACCESS
THIS WORKSPACE (THE “WORKSPACE”). IF YOU ARE NOT PREPARED TO ACCEPT
THE INFORMATION ON THIS BASIS, YOU MUST RETURN TO THE PREVIOUS PAGE. BY CLICKING ON THE “AGREE” BUTTON, YOU EXPRESSLY ACKNOWLEDGE AND AGREE (AND EACH TIME YOU ENTER THIS WORKSPACE HEREAFTER, YOU REAFFIRM SUCH ACKNOWLEDGEMENT AND AGREEMENT) AS FOLLOWS:
Notice to and Undertaking by Workspace Users
This workspace (the “Workspace”) has been prepared solely for informational purposes from information supplied by or on behalf of Infraestructura Energética Nova, S.A.P.I. de C.V. (the “Issuer”) and is being furnished to you as a security analyst or as a holder or beneficial owner of or prospective investor in (or as a representative of your institution in its capacity as such) (you and your institution together, the “Recipient”) in respect of one or more of the following: (i) the Issuer’s 3.750% Senior Notes due 2028 and 4.875% Senior Notes due 2048 issued pursuant to the Indenture dated as of December 14, 2017 between the Issuer and U.S. Bank National Association, as trustee, and/or (ii) the Issuer’s 4.750% Senior Notes due 2051 issued pursuant to the Indenture dated as of September 15, 2020 between the Issuer and U.S. Bank National Association, as trustee; (the foregoing are collectively referred to as, the “Notes”). Reference herein to the “Trustee” and the “Indenture” refer to the applicable trustee and indenture (as amended, restated, supplemented or otherwise modified from time to time) in respect of the Notes, as the case may be.
ACCEPTANCE OF THE TERMS SET FORTH BELOW BY CLICKING ON THE “AGREE” BUTTON BELOW AND ACCESSING THE WORKSPACE CONSTITUTES AN AGREEMENT TO BE BOUND BY THE TERMS OF THIS NOTICE TO AND UNDERTAKING BY RECIPIENTS (THIS “NOTICE AND UNDERTAKING”). THE INDIVIDUAL ACCESSING THIS WORKSPACE THROUGH THIS PORTAL REPRESENTS THAT IT IS AUTHORIZED TO BIND THE INSTITUTION IT REPRESENTS TO THE TERMS IN THIS NOTICE AND UNDERTAKING. IF THE RECIPIENT IS NOT WILLING TO ACCEPT THIS NOTICE AND UNDERTAKING AND THE ISSUER INFORMATION (AS DEFINED HEREIN) ON THE TERMS SET FORTH HEREIN, IT MUST NOT ENTER THE WORKSPACE AND MUST DELETE ANY SUCH INFORMATION IT MAY HAVE ACCESSED OR RECEIVED (SUBJECT TO THE RECIPIENT’S INTERNAL RECORD-KEEPING POLICIES).
I. CONFIDENTIALITY
If the Recipient is not bound by a separate confidentiality undertaking with the Issuer with respect to the Issuer Information, the Recipient shall comply with the terms and conditions of confidentiality set forth in this Section I; and if the Recipient is bound by a separate confidentiality undertaking with the Issuer with respect to the Issuer Information, the Recipient shall comply with the terms of the confidentiality provisions contained therein, which shall supersede the confidentiality provisions set forth in this Section I.
As used herein: (a) “Issuer Information” refers to the information included in this Workspace and any other information regarding the Issuer furnished or communicated to the Recipient by or on behalf of the Issuer in connection with the Notes or the Indenture (whether prepared or communicated prior to, on or following the date of acceptance of this Notice and Undertaking by the Issuer, its advisors or otherwise, and including, without limitation, all information posted on this Workspace) and (b) “Internal Issuer Information” refers to all memoranda, notes, and other documents and analyses developed by the Recipient or its Representatives using any of the information specified under the definition of Issuer Information.
The Recipient acknowledges that the Issuer Information constitutes confidential, sensitive and proprietary information and agrees that it shall not use the Issuer Information for any purpose other than in connection with the Notes or the Indenture or disclose the Issuer Information to any other party, person or entity; provided however that (i) it may make any disclosure of such information to which the Issuer gives its prior written consent and (ii) any of such information may be disclosed to it, its affiliates and their respective partners, directors, officers, employees, agents, and legal advisors who need to know the Issuer Information solely for the purpose of evaluating the Notes or the Indenture (collectively, “Representatives”) (it being understood that such Representatives shall be informed by it of the confidential nature of such information, shall be directed by the Recipient and shall, by the nature of their position, pursuant to a written agreement, pursuant to a professional obligation or otherwise, agree to treat such information in accordance with the terms of this Notice and Undertaking). The Recipient agrees to be responsible for any breach of this Notice and Undertaking that results from the actions or omissions of its Representatives.
The Recipient shall be permitted to disclose the Issuer Information in the event that it is required by law or regulation or requested by any governmental agency or other regulatory authority (including any self-regulatory organization) or in connection with any legal proceedings. The Recipient agrees that it will notify the Issuer as soon as practical in the event of any such disclosure (other than at the request of a regulatory authority in connection with such authority’s routine examinations or inspections), unless such notification shall be prohibited by applicable law or legal process.
The Recipient shall have no obligation hereunder with respect to any Issuer Information to the extent that such information (i) is or becomes publicly available other than as a result of a disclosure by the Recipient or its Representatives in violation of this Notice and Undertaking, or (ii) was within the Recipient's possession prior to its being made available to the Recipient on this Workspace or becomes available to the Recipient on a non-confidential basis from a source other than the Issuer or its agents, provided that the source of such information was not known by the Recipient to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Issuer or any other person with respect to such information.
In the event that the Recipient of the Issuer Information is no longer a holder or beneficial owner of the Notes or is otherwise no longer evaluating the Notes, upon request of the Issuer, such Recipient shall as soon as practicable (i) return all Issuer Information (other than Internal Issuer Information) to the Issuer and destroy all Internal Issuer Information and (ii) represent in writing to the Issuer that the Recipient has returned or destroyed all copies of the Issuer Information and Internal Issuer Information except, in each case, to the extent a copy thereof must be retained to comply with the Recipient's document retention policies and procedures, in which case Recipient shall continue to keep such information confidential in accordance with the terms hereof. Notwithstanding any return, destruction or retention of Issuer Information and/or Internal Issuer Information, Recipient and its Representatives shall continue to be bound by the terms of this Notice and Undertaking with respect to any such Issuer Information or Internal Issuer Information.
If at any time you are no longer a Representative of the Recipient, you shall not be permitted access to, and shall cease to use, this Workspace, and you will take all necessary steps to cause yourself to be promptly removed as a user of this Workspace.
II. INFORMATION
The Issuer Information has been prepared to assist interested parties in making their own evaluation of the Issuer and does not purport to be all-inclusive or to contain all of the information that a prospective investor may consider material or desirable in making a decision to invest in the Notes. The Recipient should take such steps as it deems necessary to assure that it has the information it considers material or desirable in making a decision to invest in the Notes and should perform its own independent investigation and analysis of the Notes and the Indenture and the creditworthiness of the Issuer. The Recipient represents that it is sophisticated and experienced in purchasing or analyzing the securities of entities similar to the Issuer. The information and data contained herein are not a substitute for the Recipient’s independent evaluation and analysis and should not be considered as a recommendation by the Issuer of an investment in the Notes.
None of the Issuer or any of its subsidiaries, affiliates, advisors or any of their respective officers, directors, managers, advisors or employees makes (or will make) any representation or warranty regarding, or assumes (or will assume) any responsibility or liability for, the accuracy or completeness of the information contained in the Issuer Information.
The Issuer Information may include certain forward looking statements and projections or opinions provided by the Issuer and its affiliates. Any such statements and projections reflect various estimates and assumptions by the Issuer concerning anticipated results. No representations or warranties are made by the Issuer or any of its affiliates, advisors, officers, directors, managers, or employees as to the accuracy of any such statements, projections or opinions. Whether or not any such forward looking statements or projections are in fact achieved will depend upon future events some of which are not within the control of the Issuer. Accordingly, actual results may vary from the projected results and such variations may be material. Statements contained herein describing documents and agreements are summaries only and such summaries are qualified in their entirety by reference to such documents and agreements.
Where the Issuer Information contains summaries of law or of agreements and documents, these summaries are provided for assistance only. They do not purport to be complete or accurate descriptions of the law, agreement or document to which they relate, and are qualified in their entirety by the full text of such law, agreement or document.
The Issuer Information speaks only as of the date of the materials or, if not dated, the date made available on the Workspace. The delivery of the Issuer Information at any time does not imply that the information contained therein is correct at any time subsequent to such date. None of the Issuer or its advisors, affiliates or any of their respective officers, directors, managers or employees accepts any responsibility for updating the Issuer Information at any time subsequent to such date and therefore it should not be assumed that information contained herein is necessarily accurate, complete and up-to-date at any given time.
III. GENERAL
The Recipient hereby certifies that it is authorized to access this Workspace and the Issuer Information and that its user identification and password accurately reflect its identity.
The Recipient acknowledges that it is aware, and each of Recipient’s Representatives who are informed of matters that are the subject of this Notice and Undertaking, are made aware, that the United States securities laws impose restrictions on the purchase and sale of securities of an issuer and/or its subsidiaries and affiliates when such person is in the possession of material, nonpublic information concerning such issuer and/or its subsidiaries and affiliates and on the communication of such information to any other person when it is reasonably foreseeable that such other person is likely to purchase or sell securities in reliance upon such information.
The Recipient agrees that money damages would not be a sufficient remedy for breach of this Notice and Undertaking and that in addition to all other remedies available at law or in equity, the Issuer shall be entitled to equitable relief, including injunction and specific performance, without proof of actual damages.
BY CLICKING THE "AGREE" BUTTON, RECIPIENT HEREBY UNCONDITIONALLY AND IRREVOCABLY SUBMITS TO THE EXCLUSIVE PERSONAL JURISDICTION OF, AND VENUE IN, ANY FEDERAL OR STATE COURT IN THE BOROUGH OF MANHATTAN, THE CITY OF NEW YORK IN THE STATE OF NEW YORK THAT HAS JURISDICTION OVER THE LEGAL ACTION, SUIT OR PROCEEDING. RECIPIENT HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY OBJECTION TO OR DEFENSE TO SUCH JURISDICTION. RECIPIENT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS NOTICE AND UNDERTAKING.
If any provision of this Notice and Undertaking or portion hereof shall be held void and unenforceable, all remaining provisions and portions hereof shall continue in full force and effect.
This Notice and Undertaking embody the entire understanding and agreement between the Recipient and the Issuer with respect to the Issuer Information and the Internal Issuer Information and supersede all prior understandings and agreements relating thereto.
This Notice and Undertaking shall be governed by and construed in accordance with the law of the State of New York, without regard to principles of conflicts of law (except Section 5-1401 of the New York General Obligation Law to the extent that it mandates that the law of the State of New York govern).
