[Federal Register Volume 69, Number 179 (Thursday, September 16, 2004)]
[Notices]
[Pages 55848-55850]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E4-2205]


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SECURITIES AND EXCHANGE COMMISSION

[File No. 22-28755]


Application and Opportunity for Hearing: Petroleos Mexicanos and 
the Pemex; Project Funding Master Trust

September 10, 2004.
    The Securities and Exchange Commission gives notice that Petroleos 
Mexicanos (Pemex) and the Pemex Project Funding Master Trust have filed 
an application under Section 304(d) of the Trust Indenture Act of 1939. 
Pemex and the Master Trust ask the Commission to exempt from the 
provisions of Section 316(b) of the 1939 Act: (1) An indenture between 
Pemex, certain subsidiary guarantors of Pemex and Deutsche Bank Trust 
Company Americas, as trustee and (2) an indenture between the Master 
Trust, Pemex as guarantor, certain subsidiary guarantors of Pemex and 
Deutsche Bank Trust Company Americas, as trustee. The indentures relate 
to debt securities of Pemex and the Master Trust that will be issued in 
the future and that will be qualified under the 1939 Act.
    Section 304(d) of the 1939 Act, in part, authorizes the Commission 
to exempt conditionally or unconditionally any indenture from one or 
more provisions of the 1939 Act. The Commission may provide an 
exemption under Section 304(d) if it finds that the exemption is 
necessary or appropriate in the public interest and consistent with the 
protection of investors and the purposes fairly intended by the 1939 
Act.
    Section 316(b) provides, with stated exceptions, that, the right of 
any holder of any indenture security to receive payment of the 
principal of and interest on such indenture security, on or after the 
respective due dates expressed in such indenture security, or to 
institute suit for the enforcement of any such payment on or after such 
respective due dates, shall not be impaired or affected without the 
consent of such holder * * *
    The application requests an exemption from Section 316(b) to allow 
the inclusion of a ``collective action clause'' in each of the 
indentures at issue. These collective action clauses would permit, 
under specified circumstances described in the application, an 
amendment of payment terms (including the amount due as principal or 
interest and the maturity date) with the consent of the holders of a 
supermajority (75%) of the outstanding principal amount of debt 
securities. Absent an exemption, the 1939 Act would preclude the 
inclusion of collective clauses in indentures qualified under the 1939 
Act.
    In their application, Pemex and the Master Trust allege that:
    1. Pemex is a decentralized entity of the federal government of 
Mexico. It is wholly owned and controlled by the Mexican federal 
government and thus has no private shareholders. Because Mexico does 
not guarantee Pemex's debt, Pemex is not considered a foreign 
government or political subdivision of the Mexican government for the 
purposes of Schedule B of the Securities Act of 1933, and instead 
follows the rules and regulations applicable to foreign private 
issuers. Furthermore, in connection with offerings registered under the 
1933 Act, Pemex and the Master Trust qualify their indentures under the 
1939 Act based on the understanding that a government guaranty would be 
necessary for Pemex and the Master Trust to fall within the exemption 
provided by Section 304(a)(6) of the 1939 Act.
    2. Under a subsidiary guarantee agreement, Pemex's three principal 
operating subsidiaries, each of which is also a decentralized public 
entity of the federal government of Mexico, jointly and severally 
guarantee payment of principal and interest on Pemex's debt.
    3. The Master Trust is a Delaware statutory trust established by 
Pemex as a financing vehicle to segregate the funding of its long-term 
productive infrastructure projects and take advantage of preferential 
budgetary treatment. Pemex is the only beneficiary of the Master Trust 
and controls the Master Trust in all of its activities. Pemex 
guarantees all of the Master Trust's debt, and the subsidiary

[[Page 55849]]

guarantors, in turn, jointly and severally guarantee Pemex's payment 
obligations as guarantors. The Master Trust has no shareholders, issues 
no subordinated debt and is consolidated into Pemex's consolidated 
financial statements prepared in accordance with Mexican generally 
accepted accounting principles.
    4. As noted above, in connection with previous offerings registered 
under the 1933 Act, including exchange offers, Pemex and the Master 
Trust have qualified their indentures under the 1939 Act. Pemex and the 
Master Trust will qualify the indentures at issue under the 1939 Act.
    5. Mexican government debt restructurings have proceeded in tandem 
with Pemex's debt restructuring primarily because Pemex's debt makes up 
a substantial part of Mexican public sector debt and, accordingly, 
investors view the debt of Pemex (and the Master Trust) and the debt of 
Mexico as inextricably connected. Any future debt restructuring of 
Mexico's public debt would thus be expected to include the debt of 
Pemex and the Master Trust.
    6. Mexico, as a sovereign issuer to which the 1939 Act does not 
apply pursuant to Section 304(a)(6) of the 1939 Act, recently 
introduced collective action clauses in its debt securities. The 
collective action clauses permit amendment of the payment terms and 
certain key nonfinancial terms with the consent of the holders of 75% 
of the outstanding principal amount of the debt securities. Because 
Mexican government debt restructurings have historically been 
negotiated and implemented in tandem with restructuring of the debt of 
Pemex, Pemex and the Master Trust request that they be permitted to 
issue debt securities in the future under indentures that contain 
collective action clauses similar to those that the Mexican government 
has recently introduced.
    7. The collective action clauses are contained in sections 9.02 of 
the indentures that have been submitted as Exhibit A and Exhibit B to 
the application. These provisions are designed to ensure that the 
collective action clauses are narrowly tailored to be invoked only in 
situations in which an effective restructuring of Pemex's and the 
Master Trust's debt is necessary in order to effect a tandem general 
restructuring of the Mexican government's debt. Specifically, the 
proposed collective action clauses would permit amendments to payment 
terms with the consent of the holders of 75% of the principal amount of 
the series of debt securities affected thereby in the event that such 
an amendment is being made in connection with a ``General 
Restructuring'' by Mexico. ``General Restructuring'' is defined as a 
request by Mexico for an amendment or an exchange offer by Mexico, each 
of which affects a matter that would (if made to Pemex's or the Master 
Trust's debt securities) constitute a ``Reserved Matter,'' and that 
applies to either (1) at least 75% of the aggregate principal amount of 
outstanding Mexico External Market Debt that will become due and 
payable within a period of five years following such request or 
exchange offer or (2) at least 50% of the aggregate principal amount of 
Mexico External Market Debt outstanding at the time of such request or 
exchange offer. Mexico External Market Debt is defined as all debt 
securities issued by the Mexican government and indebtedness of the 
Mexican government for borrowed money which is payable or at the option 
of its holder may be paid in a currency other than Mexican pesos, 
excluding any such indebtedness that is owed to or guaranteed by 
multilateral creditors, export credit agencies and other international 
or governmental institutions. The principal amount of Mexico External 
Debt that is the subject of any request by Mexico for such an amendment 
will be added to the principal amount of Mexico External Market Debt 
that is the subject of a substantially contemporaneous exchange offer 
by Mexico for the purposes of determining the existence of a general 
restructuring.
    8. As decentralized entities of the federal government, like the 
Mexican government itself, Pemex and its subsidiary guarantors are not 
subject to commercial bankruptcy protection under Mexican law or 
Chapter 11 of the U.S. Bankruptcy Code. Although the Master Trust is 
eligible for bankruptcy protection under Chapter 11 of the U.S. 
Bankruptcy Code, in the event of such a filing or reorganization 
thereunder, the Master Trust's creditors could still continue to 
enforce their rights against Pemex under its guaranty of the Master 
Trust's debt securities notwithstanding any such filing or proceeding. 
Because a bankruptcy filing by the Master Trust would not affect 
Pemex's and the subsidiary guarantors' obligations as guarantors, Pemex 
and the Master Trust are thus not able to avail themselves of the 
benefits of consensual debt restructuring that are afforded other 
companies under Mexican and U.S. bankruptcy law.
    9. Because Pemex, like the Mexican government, has no recourse to 
formal bankruptcy or reorganization proceedings under Mexican or U.S. 
law, with respect to its own debt securities or its guaranty of the 
debt securities issued by the Master Trust, and given the practical 
impossibility of obtaining consents from the holders of 100% of the 
debt that will be issued, the collective clauses are necessary for an 
effective restructuring of the external bonds of Pemex and the Master 
Trust.
    10. The proposed collective action clauses would place an investor 
in debt securities issued or guaranteed by Pemex in no materially worse 
position than it would be in were Pemex able to avail itself of Mexican 
or U.S. bankruptcy proceedings.
    11. In addition to the collective action clauses, Pemex and the 
Master Trust propose to increase the percentage of holders needed to 
consent to modifications of certain key nonpayment terms, expand the 
scope of persons who are excluded from voting and quorum purposes and 
add a restriction on their ability to issue further debt securities 
that are fungible with the debt securities originally issued at a 
discount. These measures are intended to provide a further safeguard 
against the potential abuses that the 1939 Act intended to rectify and 
protect investors from other coercive measures.
    Any interested persons should look to the application for a more 
detailed statement of the asserted matters of fact and law. The 
application is on file in the Commission's Public Reference Section, 
File Number 22-28755, 450 Fifth Street, NW., Washington, DC 20549.
    The Commission also gives notice that any interested persons may 
request, in writing, that a hearing be held on this matter. Interested 
persons must submit those requests to the Commission no later than 
October 12, 2004. Interested persons must include the following in 
their request for a hearing on this matter:

--The nature of that person's interest;
--The reasons for the request; and
--The issues of law or fact raised by the application that the 
interested person desires to refute or request a hearing on.

    The interested person should address this request for a hearing to: 
Jonathan G. Katz, Secretary, Securities and Exchange Commission, 450 
Fifth Street, NW., Washington, DC 20549-0609. At any time after October 
12, 2004, the Commission may issue an order granting the application, 
unless the Commission orders a hearing.


[[Page 55850]]


    For the Commission, by the Division of Corporation Finance, 
pursuant to delegated authority.
Margaret H. McFarland,
Deputy Secretary.
 [FR Doc. E4-2205 Filed 9-15-04; 8:45 am]
BILLING CODE 8010-01-P