Exhibit 10.9
AMENDED LOAN AGREEMENT NO. 5 OF THE MASTER
CREDIT AGREEMENT, DATED AUGUST 8, 1997 AND
AMENDMENT XX. 0 XX XXX XXXXXXXXX XXXX XX. 00,
DATED DECEMBER 10, 1999
between
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XXXXXXXXXX HERMANOS S.A.
as Borrower,
and
CALYON as successor of CREDIT LYONNAIS
as Arranger an/or Lender, as the case may be
--------------------------------------------------------------------------------
------------------------------
Dated June 3, 2004
------------------------------
AMENDED AGREEMENT XX. 0 XXX XXXXXXXXX XX. 0 OF THE ADMISSION
FORM NO. 10, dated June 3, 2004, by and between Xxxxxxxxxx Hermanos S.A., a
corporation organised and existing under the laws of the Republic of Argentina,
domiciled at Xxxxxxxxxxx Xxxxxxx 000, 0xx. xxxxx, Xxxx xx Xxxxxx Xxxxx,
Xxxxxxxxx, as borrower (the "Borrower"), on the one part, and CALYON, as
successor of Credit Lyonnais, a "societe anoynyme" organised and existing under
the laws of France, having its registered office at 9, Quai du President Xxxx
Xxxxxx, Paris La Defense, France, as lender and as arranger (the "Lender" and/or
the "Arranger", as the case may be and together with the Borrower the
"Parties"), on the other part.
WITNESSETH
(A) WHEREAS on August 8, 1997, the Arranger, the Lender and the Borrower
entered into a master credit agreement (the "Master Credit Agreement"),
thereafter amended by the Amendment Agreement No. 1 dated October 29,
1998; the Amendment Agreement No. 2, dated July 26, 1999; the Amendment
Agreement No. 3 dated October 13, 1999 and the Amendment Agreement No.
4 dated May 29, 2000. The Parties also executed Admission Form No. 10
dated December 10, 1999, as amended by the Amendment Agreement No. 1,
dated April 24, 2001; by the Amendment Letter No. 1 dated May 18, 2001;
by the Amendment letter No. 2 dated June 27, 2001; by the Amendment
Letter No. 3 dated July 2, 2001; by the Amendment Letter No. 4 dated
August 31, 2001; by the Amendment Letter No. 5 dated October 15, 2001;
by the Amendment Letter No. 6 dated December 4, 2001; by the Amendment
Letter No. 7 dated November 20, 2002 for an original principal amount
of the countervalue in USD of DKK 77,918,680 plus 100% of the Export
Credit Guarantee premium (the Master Credit Agreement, as amended, and
Admission Form No. 10, as amended, are referred to hereinafter as the
"Credit Facility" and are attached hereto as Annex I);
(B) WHEREAS as of the date hereof, (i) the aggregate amount of
principal outstanding under the Credit Facility arises to the sum of
US$ 9,852,998 and (ii) the aggregate amount of accrued interest until
March 31, 2004, and outstanding under the Credit Facility arises to the
sum of US$ 1,975,372;
(C) WHEREAS as security for the Credit Facility, (i) on January 21, 2000,
the Borrower pledged in favour of the Lender the assets listed in the
Registered Pledge Agreement (the "Pledge Agreement"), attached hereto
as Annex I, and the Pledge Agreement was registered with the Register
of Loans Secured by Pledges (Registro Nacional de Creditos Prendarios)
in the City of Xxxxx,
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Province of Buenos Aires, under No. 22198; and (ii) the Borrower
endorsed to the Lender an insurance policy over the Pledged Assets;
(D) WHEREAS as from March 2002, the Borrower is in breach of its payment
obligations under the Credit Facility, and such default is currently
continuing;
(E) WHEREAS the Borrower has requested, and the Lender has agreed, to
amend the Credit Facility in order to refinance without novation the
Outstanding Principal Amount, as hereinafter defined, owed by the
Borrower to the Lender under the Credit Facility, in accordance with
the terms and subject to the conditions set forth in this Amended
Agreement No. 5 (the "Agreement");
(F) WHEREAS as part of the amendment proposal of the Borrower, the Parties
wish to agree on a sale of the pledged assets listed in Exhibit 1 to
the Pledge Agreement (the "Pledged Assets"), and it is the intention of
the Parties to establish the terms and conditions under which the
Pledged Assets should be sold;
NOW, THEREFORE, the parties hereto agree to amend terms of the
Credit Facility as follows:
SECTION 1. DEFINITIONS AND PRINCIPLES OF CONSTRUCTION.
------------------------------------------
1.1 Defined Terms. As used in this Agreement, the following
terms shall have the following meanings (such meanings to be equally applicable
to both the singular and plural forms of the terms defined, except as otherwise
provided), provided that capitalised terms not defined herein shall have the
meaning as ascribed to them under the Credit Facility.
"Agreement" shall mean this Amended Agreement No. 5 to the
Master Credit Agreement dated August 8, 1997 and Amendment No. 8 of the
Admission Form No. 10, as modified, supplemented or amended from time to time.
"APV" shall mean APV Nordic Dairy A/S or Invensys or any of
their affiliates.
"Argentine Bankruptcy Law" shall mean the Argentine Bankruptcy
Law N(0) 24,522 as amended.
"Argentine GAAP" shall mean Argentine General Accepted
Accounting Principles.
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"Borrower" shall mean Xxxxxxxxxx Hermanos S.A.
"Commercial Companies Law" shall mean the Argentine Commercial
Companies Law No. 19,550, as amended.
"Credit Document/s" shall mean and include this Agreement and
all other agreements and instruments executed, or to be executed, in connection
therewith as amended, supplemented or modified from time to time.
"Credit Facility" shall have the meaning provided for in the
Whereas A herein.
"Default" shall mean any event, act or condition which, with
notice or lapse of time, or both, would constitute an Event of Default.
"EKF" shall mean Eksport Kredit Fonden.
"Event of Default" shall have the meaning provided in SECTION 7
of this Agreement and as provided for in the Credit Facility.
"Governmental Authority" shall mean any ministry,
administrative department, agency, commission, bureau, board, regulatory
authority, registry, instrumentality, corporation or other governmental body,
entity, judicial or administrative body or court (including, without limitation,
banking and taxing authorities) of, or owned or controlled by the Argentine
Republic, or any political subdivision thereof.
" Indemnified Person" shall have the meaning specified in
SECTION 8.7 of this Agreement.
"Interest Determination Date" shall mean the last Banking Day
prior to the commencement date of any Interest Period.
"Interest Period" shall mean, for interest determination
purposes under this Agreement, consecutive periods of six (6) months, the first
of which shall be irregular and commence on the date of execution of this
Agreement and end on December 31, 2004.
"Interest Rate" shall have the meaning specified in
SECTION 2.2(A) of this Agreement.
"Law" shall mean any constitution, treaty, convention, statute,
law, code, ordinance, decree, order, rule, regulation, guideline,
interpretation, direction, policy or request, or judicial or arbitral decision,
of a Governmental Authority.
"Lender" shall mean CALYON as successor of Credit Lyonnais, its
respective successors and assignees.
"LIBOR" shall mean with respect to any Interest Period, (i) the
rate per annum which is the offered rate for USD deposits with a term
approximately equal to such
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Interest Period that appears on the "LIBO" screen of "The Xxxxxx Monitor
Money Rate Service" at approximately 10:00 A.M. (London time) on the date which
is two (2) Banking Days prior to the commencement of such Interest Period. If
LIBOR is for any reason not available, or does not accurately reflects the costs
of funding of the Lender, LIBOR shall mean the interest rate that accurately
reflects such costs of funding, as determined by the Lender in good faith.
"Lien" shall mean any mortgage, pledge, hypothecation,
assignment, fiduciary transfer, guarantee, escrow, usufruct, deposit
arrangement, charge, encumbrance, privilegio (general or special), lien
(statutory or other), preference, security interest, priority or any other
security agreement or preferential arrangement of any kind or nature whatsoever
having the effect of constituting a security interest (including, without
limitation, hipoteca under Argentine Law or prenda under Argentine law and any
conditional sale or other title retention agreement, any financing or similar
statement or notice filed under any recording or notice Law, and any lease
having substantially the same effect as any of the foregoing).
"Margin" means two point fifty percent (2.50 %) per annum.
"Material Adverse Effect" shall mean, at the sole opinion of the
Lender, any material adverse effect on, (i) the business, operations,
properties, condition (financial or otherwise) or prospects of the Borrower or
its subsidiaries and affiliates, or (ii) the ability of the Borrower to perform
its obligations under this Agreement or any of the other Credit Documents or
(iii) the legality, validity, binding effect or enforceability of any provision
of this Agreement or any of the other Credit Documents. "Minimum Cash Selling
Price" shall have the meaning provided in SECTION 9.2 of this Agreement.
"Minimum Guaranteed Selling Price" shall have the meaning
provided in SECTION 9.2 of this Agreement.
"Net Outstanding Principal Amount" shall have the meaning
provided in SECTION 9.3 of this Agreement.
"New Tax Regulations" shall have the meaning provided in SECTION
9.2(B)
"Obligations" shall mean all present and future obligations,
liabilities and other amounts owing to the Lender pursuant to the terms of this
Agreement or any of the other Credit Documents.
"Offer" shall have the meaning provided in SECTION 8.1 of this
Agreement.
"Outstanding Principal Amount" shall have the meaning provided in
SECTION 2.1(B) HEREIN.
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"Parties" shall have the meaning provided for in the firdt
paragraph of this Agreement.
"Payment Office" shall mean the account of Credit Lyonnais
Americas, New York, New York, USA , for credit to CALYON as successor of Credit
Lyonnais; Account No. 00000000.0.001.00; Reference: IFAP/A&F/MCA Xxxxxxxxxx XX
No. 10, or whichever other account as may be informed in writing by the Lender
to the Borrower.
"Person" shall mean any individual, partnership, limited
partnership, joint venture, firm, corporation, association, trust or other
enterprise or any Governmental Authority.
"Pledge Agreement" shall mean the existing registered pledge in
first rank of priority granted by the Borrower in favour of the Lender as
security of the Credit Facility over equipment of the Borrower, granted under
the following instrument: Registered Pledge Agreement dated January 21, 2000,
registered before the National Registry of Pledged Credits (Registro Nacional de
Creditos Prendarios) (Office of Lujan, Province of Buenos Aires) on February 14,
2000, under No. 22198, copy of which is attached hereto as Annex I. "Pledged
Assets" shall mean the assets listed in Exhibit 1 to the Pledge Agreement.
"Reference Banks" shall mean the principal London offices of four
major banks in the London interbank market, as selected by the Lender.
"Restriction" has the meaning specified in SECTION 3.3(A) of
this Agreement.
"Technical Expert" has the meaning specified in SECTION 8.3 of
this Agreement.
"Sale" has the meaning specified in SECTION 8.1 of this
Agreement.
"Scheduled Repayment Date" shall have the meaning provided in
SECTION 3.1 and 9.4 of this Agreement.
"Scheduled Repayment" shall have the meaning provided in SECTION
3.1 and 9.4 of this Agreement.
"Taxes" shall have the meaning provided in SECTION 8.5 of this
Agreement.
"USD" and "US$" shall each mean the United States Dollars..
"VAT" shall mean the value added tax under Argentine Law
(impuesto al valor agregado).
1.2 Principles of Construction.
(a) All references to Sections, Schedules and Exhibits are to
Sections, Schedules and Exhibits in or to this Agreement unless otherwise
specified.
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SECTION 2. THE REFINANCING.
---------------
2.1 Lender's consent.
----------------
(a) The Borrower has requested and the Lender has agreed, to
amend the Credit Facility in order to: (i) refinance without novation the
Outstanding Principal Amount with effects as of the date hereof but subject to
the provisions contained in SECTION 4 of this Agreement, and (ii) authorised the
lender to use its reasonable endeavours to obtain from third parties Offers, as
hereinafter defined, in order to perfect the Sale, as hereinafter defined.
(b)The Borrower irrevocably acknowledges to owe the Lender
under the Credit Facility the amount of USD 9,852,998 as of the date hereof (the
"Outstanding Principal Amount"). It is further agreed that the Borrower is
released from its obligation to pay interests accrued as of the date hereof.
2.2 Interest
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(a) The Borrower agrees to pay interest in respect of the
balance under the Outstanding Principal Amount at a rate per annum equal at all
times during each Interest Period to the lower of (i) 5% and (ii) the sum of
LIBOR for such Interest Period plus the Margin (the "Interest Rate"). Interest
on the balance under the Outstanding Principal Amount shall be payable (y) at
the end of each Interest Period, and (z) simultaneously with any prepayment of
principal.
(b) On each Interest Determination Date, the Lender shall
determine LIBOR for the Interest Period applicable to the balance under the
Outstanding Principal Amount and shall promptly notify the Borrower thereof.
Each such determination shall, absent manifest error, be final and conclusive
and binding on the Borrower. If, on the Interest Determination Date, the display
designated as "LIBO" screen of "The Xxxxxx Monitor Money Rate Service" (or such
other page as may replace such page on such service, or on another service
designated by the British Bankers' Association, for the purpose of displaying
the rates at which Dollar deposits with a term approximately equal to the
relevant Interest Period are offered by leading banks in the London interbank
deposit market) is not being displayed, the Lender will request the Reference
Banks to provide the Lender with their offered quotations for deposits in USD
for such Interest Period to prime banks in the London interbank market at
approximately 10:00 A.M. (London time) on such Banking Day and in a principal
amount equal to the balance under the Outstanding Principal Amount. If at least
two (2) such quotations are provided, LIBOR shall be calculated using the
average (rounded upward to the nearest whole multiple of 1/16 of 1% per annum,
if such average is not such a multiple) of such quotations. If fewer than two
(2)
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Reference Banks provide quotations to the Lender to determine LIBOR, then
(i) the Lender shall forthwith notify the Borrower that LIBOR cannot be
determined, and (ii) the balance under the Outstanding Principal Amount shall
bear interest at a rate per annum equal to the sum of the cost of funds of the
Lender plus the Margin until such time as LIBOR can be determined.
(c) Overdue principal and, to the extent permitted by Law,
overdue interest in respect of the Outstanding Principal Amount and any other
overdue amount payable by the Borrower hereunder shall bear, in addition to the
Interest Rate, interest at a rate per annum equal to 5%, in each such case
accruing from the date on which such amount was due, until it is fully paid by
the Borrower.
2.3. Restructuring Fee: the Borrower agrees to pay to the
Lender a restructuring fee calculated as follows: (i) if the Pledged Assets are
sold, the restructuring fee will be equal to one percent (1%) of the Net
Outstanding Principal Amount. Such restructuring fee shall be payable on June
30, 2007 and (ii) if the Pledged Assets are not sold the restructuring fee will
be equal to one percent (1%) of the Outsanding Principal Amount reduced by an
amount equal to the amount defined as Minimum Cash Selling Price provided in
SECTION 9.2 of this Agreement, and further reduced by an additional one third
(1/3) of said Minimum Cash Selling Price. Such restructuring fee shall be
payable on March 30, 2006.
SECTION 3. PAYMENTS AND PREPAYMENTS.
-------------------------
3.1 Payment of the Outstanding Principal Amount. Subject to
SECTION 9.3 the Borrower shall pay on each date set forth below the principal
amount set forth below opposite such date (each such payment date, a "Scheduled
Repayment Date" and each such principal amount, a "Scheduled Repayment"):
Percentage of
-------------
Principal Payment Date Outstanding Principal Amount
---------------------- ----------------------------
March 30, 2006 5%
September 30, 2006 5%
March 30, 2007 5%
September 30, 2007 5%
March 30, 2008 10%
September 30, 2008 10%
June March 30, 2009 20%
September 30, 2009 20%
March 30, 2010 20%
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3.2 Voluntary Prepayments. The Borrower may prepay, in whole
or in part, on any Scheduled Repayment Date, any portion of the Outstanding
Principal Amount (including accrued interest thereon), on the following terms
and conditions: (i) the Borrower shall give the Lender at the Payment Office at
least five (5) Banking Days' prior written irrevocable notice of its intention
to prepay a portion of the Outstanding Amount; and (ii) such prepayment shall be
in an aggregate principal amount of at least US$10,000.00 plus interest thereon.
3.3 Method and Place of Payment.
----------------------------
(a) Except as otherwise specifically provided herein, all
payments under this Agreement shall be made to the Lender not later than 5:00
P.M. (New York time) on the date when due and shall be made exclusively in USD
in immediately available funds at the Payment Office; provided, however, that if
the Borrower is not able to so tender USD as a result of the adoption of a Law,
the taking of action by a Governmental Authority or the occurrence of any other
circumstance which in any such case prohibits, prevents or limits the payment of
USD, regarding which the Borrower has complied with all the Requirements (a
"Restriction"), the Borrower shall, during the continuance of such prohibition
or restriction, make payments hereunder in USD (i) by purchasing with Pesos any
public or private United states Dollar denominated bonds issued in Argentina or
any other USD denominated securities, and transferring and selling such
instruments outside Argentina for USD, or (ii) by any other lawful mechanism for
the acquisition of USD, at the option of the Lender. No form of payment shall be
deemed to constitute payment of the applicable Obligation until receipt by the
Lender of the full amount of USD due in respect thereof. All costs, expenses and
taxes payable in connection with this SECTION 3.3 (A) shall be for the account
of the Borrower. Anything herein shall prevent the Lender to benefit from
Article 20 of the Credit Facility.
(b) Whenever any Scheduled Repayment Date shall be a day which
is not a Banking Day, such Scheduled Repayment Date shall be extended to the
next immediately succeeding Banking Day, and interest shall be payable at the
Interest Rate during such extension, unless the result of such extension would
be to carry such Scheduled Repayment Date into another calendar month, in which
event such Scheduled Repayment Date shall be the immediately preceding Banking
Day.
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SECTION 4. CONDITIONS PRECEDENT.
---------------------
The refinancing by the Lender of the Outstanding Principal Amount as agreed
herein is subject to the satisfaction of the following conditions precedent,
which are being duly fulfilled simultaneously with the execution of this
Agreement unless otherwise provided herein:
(a) Officer's Certificate. Within seven (7) Banking Days as
from the execution hereof, the Lender has received from the Borrower a
certificate, signed on behalf of the Borrower by its president or other
authorised officer of the Borrower acceptable to the Lender, substantially in
the form of Annex II herein, with appropriate insertions, together with a
certified copy of the current by-laws and/or organisational documents (estatutos
sociales) of the Borrower and the resolutions of the Borrower referred to in
such certificate.
(b) Survival of Existing Securities. The Pledge Agreement is
in full force and effect as of the date hereof And provides the Lender with a
valid, perfected and enforceable security interest over the Pledged Assets and,
as of the date hereof, the Pledged Assets are covered by the insurance policy as
provided in Credit Facility which policy has been validly endorsed to the
Lender.
(c) Legal Opinions: The Lender has received an opinion dated
as of the date hereof, from the Borrower's counsel substantially in the form
attached as Annex III hereto.
(d) Payment of Fees Taxes and Expenses: The Borrower shall pay
(i) within seven (7) Banking Days as from the execution hereof, to the Lender's
counsel, the legal fees incurred by the Lender with their external Argentine
counsels, Fortunati & Xxxxxx, in connection with structuring and execution of
this Agreement, and (ii) any and all Taxes, if any, incurred by the Lender in
connection with the execution, and registration of this Agreement and the other
Credit Documents and the documents and instruments prepared in connection
herewith or in anticipation hereof and any amendment, waiver or consent relating
hereto or thereto, including without limitation, costs of a translation into
Spanish of this Agreement by a sworn translator.
SECTION 5. REPRESENTATIONS AND WARRANTIES.
------------------------------
In order to induce the Lender to enter into this Agreement and
to grant the refinancing of the Outstanding Principal Amount, the Borrower makes
the following
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representations and warranties in addition to the Representations,
Warranties and Undertakings provided for in the Credit Facility:
5.1 Legal Status. The Borrower (i) is a sociedad anonima duly
organised and validly existing under the Laws of Argentina, (ii) has full
requisite power and authority to own its properties and assets and to transact
the business in which is engaged and to do all things necessary or appropriate
in respect of its business, and (iii) is duly qualified and authorised to do
business and is in good standing in each jurisdiction where the ownership,
leasing or operation of its property or the conduct of its business requires
such qualification, except for failures to be so qualified which, individually
or in the aggregate, could not reasonably be expected to have a Material Adverse
Effect.
5.2 Power and Authority. The Borrower has full requisite power
and authority to execute, deliver, maintain and perform the terms and provisions
of each of the Credit Documents and has taken all necessary corporate actions to
authorise the execution and performance of each of the Credit Documents. The
Borrower has duly executed and delivered each of the Credit Documents, and each
such Credit Document constitutes the legal, valid and binding obligation of the
Borrower, enforceable in accordance with the terms of such Credit Document,
except that enforcement thereof may be limited by bankruptcy, insolvency,
liquidation, reorganisation and other relating laws affecting the rights of
creditors.
5.3 No Sovereign Immunity. Neither the Borrower nor any of its
assets, properties and revenues has any right of immunity on the grounds of
sovereignty or otherwise from jurisdiction of any court or from set-off or any
legal process (whether through service or notice, attachment prior to judgment,
attachment in aid of execution, execution or otherwise) under the Laws of any
jurisdiction, including Argentina.
5.4 No Violation. Neither the execution or performance by the
Borrower of this Agreement and the other Credit Documents, nor the compliance by
the Borrower with the terms and provisions hereof or thereof does or will (i)
contravene any provision of any Law, (including, without limitation the
Argentine Bankruptcy Law),or any order, writ, injunction or decree of any
Governmental Authority binding on the Borrower and/or its subsidiaries and
affiliates, (ii) conflict or be inconsistent with or result in any breach of any
of the terms, covenants, conditions or provisions of, or constitute a default in
respect of, or result in the creation or imposition of (or the obligation to
create or impose) any Lien upon, any of the property or assets of the Borrower
pursuant to the terms of any indenture,
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mortgage, deed of trust, credit agreement, loan agreement or any other material
agreement, contract, lease or instrument to which the Borrower is a party or by
which the properties or assets of the Borrower are bound or to which the
Borrower may be subject, or (iii) violate any provision of the estatutos
sociales, certificate or articles of incorporation, by-laws or other
organisational documents of the Borrower.
5.5 Priority of the Outstanding Amount. The Outstanding
Principal Amount constitutes direct, general, unconditional and unsubordinated
and validly secured Indebtedness of the Borrower.
5.6 Compliance with Organisational Documents and Applicable
Laws. The Borrower is in compliance in all material respects with (i) its
estatutos sociales, certificates or articles of incorporation, by-laws or other
organisational documents, (ii) all applicable Laws of, and all applicable
restrictions imposed by, all Governmental Authorities, domestic or foreign, in
respect of the conduct of its business and the ownership of its property.
5.7 Approvals. No order, consent, approval, license,
authorisation or validation of, or filing, recording or registration with, or
exemption or waiver by, any Governmental Authority or any other third party
(except as have been obtained or made and are in full force and effect), is
required to authorise, or is required in connection with, (i) the maintenance,
and/or execution of any Credit Document; or (ii) the legality, validity, binding
effect or enforceability of any such Credit Document.
5.8. Pledge. After execution of this Agreement, the Pledge
Agreement shall continue to be in full force and effect, and shall continue to
give the Lender the Liens and the rights, powers, privileges and security
interests created thereunder in favour of the Lender, as security in connection
with the Obligations to the fullest extend permitted by applicable law.
5.9. No Novation: This Agreement does not constitute nor it
may be construed as, a novation of the obligations of the Borrower under the
Credit Facilities
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SECTION 6. COVENANTS.
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In addition to the Undertakings of the Borrower under the Credit Facility,the
Borrower covenants and agrees that until the Outstanding Principal Amount is
repaid in full, together with all accrued interest thereon and all other
Obligations incurred hereunder and under any Credit Documents, are paid in full:
6.1 Information Covenants. The Borrower will furnish or
cause to be furnished to the Lender:
(a) Financial Statements. (i) As soon as available,
but, in any event within ninety (90) calendar days after the end of each fiscal
year of the Borrower, the statements of financial condition of the Borrower as
at the end of such fiscal year and the related consolidated statements of income
and cash flows for such fiscal year, in each case setting forth comparative
figures for the preceding fiscal year and certified by the Auditors, and (ii) as
soon as available, but in any event within fifty (50) calendar days after the
end of each quarter, its consolidated financial statements for such period.
(b) Other Reports and Filings. (i) Promptly upon written
request from the Lender, copies of all financial information, proxy materials,
information, reports and other material filings, if any, which the Borrower and
its subsidiaries and affiliates shall have filed with any Governmental Authority
and with any international or national securities exchange and which are
publicly available; and (ii) timely, any information which the Borrower is
required to provide the Lender according to the Law.
6.2 Compliance with Laws. The Borrower and its subsidiaries
and affiliates will, comply with all applicable Laws, in respect of the conduct
of their business and the ownership of their respective property.
6.3 Books, Records and Inspections; Accounting and Audit
Matters. The Borrower and its subsidiaries and affiliates will keep proper books
of record and accounts in which full, true and correct entries in conformity
with Argentine GAAP and all requirements of Law shall be made of all dealings
and transactions in relation to their business and activities, including,
without limitation, all necessary trade and commercial documents evidencing the
transactions contemplated herein.
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6.4 Maintenance of Property; Insurance. The Borrower and its
subsidiaries and affiliates will (i) keep all property necessary to the business
of the Borrower and its subsidiaries and affiliates in good working order and
condition, ordinary wear and tear excepted, and (ii) maintain insurance on all
such property in at least such amounts and against at least such risks as is
consistent and in accordance with industry practices for companies similarly
situated owning similar properties in the same general areas in which the
Borrower and its subsidiaries and affiliates operates.
6.5 Maintenance of Approvals. The Borrower and its
subsidiaries and affiliates will take all such further actions as shall be
required to insure that all orders, consents, licenses, authorisations,
validations, filings, recordings, exemptions, waivers and similar approvals from
all Governmental Authorities or other third parties shall remain in full force
and effect.
6.6 The Security. The Pledge Agreement shall remain in full
force and effect for as long as the Outstanding Principal Amount, plus interest,
costs and expenses hereunder are not paid in full by the Borrower.
SECTION 7. EVENTS OF DEFAULT.
-----------------
Upon the occurrence of any of the following specified events
(each, an "Event of Default"):
7.1 Payments. The Borrower shall (i) default in the payment
when due of any principal under the Outstanding Principal Amount or under the
Net Outstanding Principal Amount, as the case maybe or (ii) default in the
payment when due of any interest under the Outstanding Principal Amount or under
the Net Outstanding Principal Amount, as the case maybe, or any other amounts
owing hereunder or under any other Credit Document; or
7.2 Representations, etc. Any representation, warranty or
statement made by or on behalf of the Borrower herein or in any other Credit
Document or in any certificate delivered pursuant hereto or thereto shall prove
to be untrue in any material respect on the date as of which made or deemed
made; or
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7.3 Covenants. The Borrower shall default in the due
performance or observance of any term, covenant or agreement (other than those
referred to in SECTIONS 7.1 and 7.2 of this Agreement) contained in this
Agreement or any other Credit Document, and any such default shall have
continued unremedied for a period of fifteen (15) Banking Days form the date of
the occurrence of such default; or
7.4 Bankruptcy, etc. The Borrower or any of its subsidiaries
and affiliates shall commence a voluntary case concerning itself under any
bankruptcy or reorganization proceeding under the Laws of Argentina (including a
"concurso preventivo" in accordance with the provisions of the Argentine
Bankruptcy Law) or any other jurisdiction (other than an Acuerdo Preventivo
Extrajudicial in accordance with the provisions of the Argentine Bankruptcy
Law); or an involuntary case under any such Laws ("pedido de quiebra") is
commenced against the Borrower or its subsidiaries and affiliates, and the
Borrower or its subsidiaries and affiliates do not obtain dismissal thereof or
do not contest it in good faith in the first available opportunity provided
under Argentine Bankruptcy Law; or the Borrower or its subsidiaries is (or are
as the case may be) adjudicated insolvent or bankrupt, or any other of relief or
other order approving any such case or proceeding is entered after execution of
any indenture, mortgage, deed of trust, credit agreement, loan agreement or any
other agreement or instrument entered in connection with the refinancing of the
indebtedness of the Borrower; the Borrower becomes into cesacion de pagos as
provided in Sections 78 and 79 of Argentine Bankruptcy Law No. 24,522 as
amended; or the Borrower or its subsidiaries suffers any appointment of any
custodian or the like for it (or them, as the case may be) or any substantial
part of their (or their, as the case may be) property and, to the extend
applicable law permits the Borrower or its subsidiaries and undercharged and/or
unstayed for a period of ten (10) calendar days; or the Borrower or its
subsidiaries and affiliates makes (or make as the case may be) a general
assignment for the benefit of creditors; or any corporate action is taken by the
Borrower or its subsidiaries and affiliates for the purpose of effecting any of
the foregoing; or after execution of any other agreement or instrument entered
in connection with the refinancing of its (or theirs, as the case may be)
indebtedness, Borrower or its subsidiaries and affiliates shall generally not
pay their debts as they become due or shall admit in writing their inability to
pay their debts as they become due.
7.5 Judgments. One or more final judgements or non appealable
decrees shall be entered against the Borrower or its Subsidiaries and affiliates
involving in the
15
aggregate for the Borrower or its subsidiaries and affiliates a liability (not
paid or fully covered by insurance) which could reasonably be expected to have a
Material Adverse Effect, or all such judgements or decrees which could
reasonably be expected to have a Material Adverse Effect shall not have been
vacated, discharged or stayed or bonded pending appeal, if necessary, within
thirty (30) Banking Days after the entry thereof; or
7.6 Dissolution or Liquidation. The Borrower adopts any
corporate resolution pursuant to, or any Governmental Authority decides, the
dissolution or liquidation of the Borrower.
7.7 Default Under Other Agreements. The Borrower or its
subsidiaries and affiliates shall fall within an event of default under any
other credit agreement with the Lender or its subsidiaries or affiliates; or
7.8 Material Adverse Effect. The Borrower produces, creates or
causes any act and/or event which, in the judgment of the Lender, could
reasonably be expected to have a Material Adverse Effect or otherwise materially
and adversely affect the rights and remedies of the Lender under this Agreement
or the Pledge Agreement; or
7.9 Pledge Agreement. The Pledge Agreement shall cease to be
in full force and effect, or shall cease to give the Lender the rights, powers
and privileges purported to be created thereby, or the Borrower shall fail to
provide the Lender with a validly endorsed insurance policy over the Pledged
Assets as provided in the Pledge Agreement, then, and in any such event, and at
any time thereafter, if any Event of Default shall then be continuing, then the
Lender may take any and all of the following actions, without any other
formality, without prejudice to the rights of the Lender to enforce its claims
against the Borrower: (i) declare the principal of and any accrued interest in
respect of the Outstanding Principal Amount, or of the Net Outstanding Principal
Amount, as the case may be, and all obligations owing hereunder and thereunder
to be, whereupon the same shall become, forthwith due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower; (ii) enforce any or all of the Liens and security
interests created pursuant to this Agreement, and apply the proceeds to the
payment of the Outstanding Principal Amount or of the Net Outstanding Principal
Amount, as the case may be, plus interest, costs and expenses hereunder; and
(iii) exercise any other rights available under the Credit Documents.
16
SECTION 8. THE SALE.
--------
8.1 Agreement to Sell. The Parties hereto agree that the
Lender will on an exclusive basis and on the terms and conditions provided in
this Agreement, use its reasonable endeavours to obtain from third parties
irrevocable offers to buy from the Borrower the Pledged Assets, which offers
shall comply with the minimum terms and conditions provided in SECTION 9.2 of
this Agreement (each, an "Offer") and the parties here to further agree that the
Borrower will accept such offers in order to perfect the sale of the Pledged
Assets (the "Sale"). The Offers must be addressed by the interested third party
to the Borrower, with a full copy thereof simultaneously sent to the Lender, and
they must have a minimum term of validity of thirty (30) calendar days
8.2 Joint efforts with the Borrower. The Borrower shall
cooperate with the Lender in the Sale. This includes the participation in
presentations and visits to or by potential buyers both in Argentina and in
foreign countries. Moreover, the Borrower may as well use its reasonable efforts
to obtain offers from third parties under the terms and conditions hereunder.
8.3 Services by third parties. Due to the complex nature and
significance of the Pledged Assets, the Parties agree that the Lender may hire,
in connection with the Sale, the services of APV in order to offer and sell the
Pledged Assets in accordance with the terms and conditions established herein,
(the "Technical Expert").
8.4 Fees, Commissions, Costs and Expenses.
(a) For the services rendered by the Lender under this SECTION
8, the Borrower agrees to pay to the Technical Expert (if any) a commission
equal to 3% of the price of the Sale (the "APV Success Fee"). The Technical
Expert shall be paid the APV Success Fee hereby agreed upon even under the case
provided for in Section 8.2 above. Should APV become entitled to the APV Success
Fee all the costs and expenses paid under subsection (b) below shall be credited
towards the APV Success Fee so that Borrower shall only pay the balance thereof.
(b) The Borrower has agreed to reimburse the Technical Expert
promptly for all out-of-pocket costs and expenses incurred by the Technical
Expert as from May 1, 2004. Notwithstanding the aforesaid, before incurring in
any future cost and /or expense in
17
excess of (i) USD15,000 individually, or (ii) USD60,000, in the aggregate, then
the Lender shall previously seek the previous approval of the Borrower. All
reimbursable costs and expenses will be payable at (i) the closing of the Sale
or (ii) at the end of each calendar quarter (meaning March 31, June 30,
September 30 and December 31), whichever occurs first.
(c) The Borrower has agreed to reimburse the Lender for all
out-of-pocket costs and expenses (accrued and future) reasonably incurred by the
Lender and EKF in connection with the Sale. All reimbursable costs and expenses
will be payable at (i) the closing of the Sale or (ii) at the end of each
calendar quarter (meaning March 31, June 30, September 30 and December 31),
whichever occurs first.
8.5 Taxes. All present or future Argentine taxes (including
without limitation, VAT and duty taxes), levied on the Pledged Assets, or in
connection with the Sale shall be borne by the Borrower (hereinafter the
"Taxes"). The Borrower shall pay the Taxes in accordance to applicable law.
8.6 Termination. The arrangement for the Sale will terminate
at the (i) closing of the Sale or (ii) on December 31, 2005, whichever occurs
first. This arrangement for the Sale may also be terminated by the Lender within
seven (7) calendar days after written notice to the Borrower is given to such
effect. No such termination will affect the Lender's right to payment of the
Outstanding Principal Amount and/or receive reimbursement of its (or the
Technical Expert's) out-of-pocket expenses as set forth above, or the rights of
the Borrower or any other Indemnified Person (as defined herein) to receive
indemnification.
8.7 Indemnification. The Borrower hereby agrees to indemnify
and hold harmless the Lender and its affiliates and subsidiaries and the
respective directors, officers, agents and employees of the Lender, EKF and/or
the Technical Expert (each an "Indemnified Person"), if any, from and against
any losses, claims, damages or liabilities arising out of activities performed
pursuant to this arrangement for the Sale, and to reimburse any Indemnified
Person on a current basis for all expenses (including, without limitation,
reasonable fees and disbursements of counsel) incurred in connection with any
action, suit or proceeding in relation hereto or in connection herewith. The
obligation to
18
indemnify set forth herein will survive the Sale and the termination provided in
SECTION 8.6 of this Agreement.
8.8 The Sale Agreement. Notwithstanding the power of attorney
that is provided in SECTION 8.9 below, it is hereby agreed that the Borrower
shall promptly execute, as requested by the lender, any agreement that may be
necessary to perfect tha Sale and shall do, make and/or perform any and all
acts, deeds and/or actions necessary to perfect the Sale, including without
limitation delivering the Pledged Assets that were received by the borrower from
APV in due course. To such effect, the lender shall notify in writing to the
Borrower of the existence of an Offer, including in such notice the term in
which the Offer is to be accepted by the Borrower. This notice must be delivered
by the Lender to the Borrower at least five (5) Banking Days prior to the
execution of the Agreement relating to the Sale. In addition, the Borrower shall
promptly after so requested by the Lender, sign, execute, deliver and/or produce
any and all forms, returns, sworn statements or any other kind of document that
may be needed to perfect the Sale or to comply with any obligation upon the
Borrower existing in connection with the Sale or to permit the export of the
Pledged Assets if such exports were needed.
8.9 Power of Attorney. Notwithstanding the provision in
SECTION 8.8. above the Borrower hereby grants special Power of Attorney in
favour of the Lender to act on its behalf in order to sell, and perfect the
transfer of title and property over, the Pledged Assets, and to perform all and
every acts necessary for such purposes before the Register of Loans Secured by
Pledges (Registro Nacional de Creditos Prendarios) of the City of Xxxxx,
Province of Buenos Aires. The Borrower shall, as promptly hereafter, as possible
execute a public deed that will notarised the special power of attorney herein
provided for substantially in the same terms that are included in the form that
is enclosed hereto as Annex IV.
SECTION 9. GENERAL TERMS FOR THE SALE OF THE PLEDGED
ASSETS.
-----------------------------------------
9.1. Proceeds of the Sale. The buyer shall be irrevocably
instructed by the Borrower, or the Lender on its behalf to make payment of the
price of the Sale directly to the Payment Office provided that such instruction
does not violate any Argentine applicable law. Furthermore, the Parties agree
that the proceeds of the Sale shall be applied by the Lender according to the
following order of priority: (i) to cancel APV Success Fee; (ii) to
19
cancel interest accrued on the Outstanding Principal Amount after the execution
of this Agreement; and (iii) to cancel the Outstanding Principal Amount under
this Agreement, by applying the balance (after the payment in (i) hereof and
credit in (ii) hereof were made) of the proceeds of the Sale to pay the
outstanding instalments in reverse form, that is, starting with the instalment
to be paid in June 30, 2011. Any excess cash resulting therefrom shall be
promptly transferred by the Lender to the Borrower.
9.2. Minimum Conditions for the Sale not conditioned to the
Borrower's prior Approval. The Minimum conditions referred to SECTION 8.1. of
this Agreement are:
(a) (i) The price of the Sale will not be lower than USD
4,500,000, payable in cash (the "Minimum Cash Selling
Price"). Accordingly, the Parties agree that the Borrower
will not be obliged to accept an offer to buy the Pledged
Assets for a price lower than the Minimum Cash Selling
Price; (ii) Notwithstanding the above, the price of the
Sale will not be lower than USD 4,800,000 (the "Minimum
Guaranteed Selling Price") in a case where a guarantee by
EKF is provided to the buyer totally or partially with
respect to the Sale. Accordingly, the Parties agree that
the Borrower will not be obliged to accept an offer to buy
the Pledged Assets for a price lower than the Minimum
Guaranteed Selling Price where EKF has accepted to
guarantee totally or partially the Sale.
(b) No changes in tax or customs regulations which create
taxes, levies, duties, export duties, or the like imposed
on the Sale (the "New Tax Regulations") with the effect
that the New Tax Regulations create a liability upon the
Borrower in excess of USD 250,000 shall have occurred;
provided however, that if such New Tax Regulations creates
such a liability over USD 250,000 the Lender, at its sole
discretion, shall have the right to instruct the Borrower
to accept the Offer, or accept it on its behalf, in which
case all amounts due under the New Tax Regulations over
USD 250,000 shall be borne by the Lender.
(c) The Pledged Assets shall be sold to any buyer outside
Argentina;
(d) The Pledge Assets shall be sold in whole but not in parts;
(e) The Pledged Assets shall be sold in whole but not in
parts,
(f) The Borrower shall simultaneously with the execution of
the agreement in connection with the Sale, assign to the
buyer and warranty provided by APV, if any;
20
(g) Possession of the Pledged Assets shall be transferred to
the buyer at its present location (freight, insurance and
import duties, if any, shall be borne by the buyer);
9.3 Further reduction of the Outstanding Principal Amount. The Net Outstanding
Principal Amount. Notwithstanding the provisions of SECTION 9.1, the Parties
agree that upon the selling of the Pledged Assets, the Outstanding Principal
Amount -following the application of the proceeds of the sale in accordance with
SECTION 9.1 will suffer a further reduction (the "FR"). Accordingly, it is
expressly agreed that (i) in a Sale in which there is no guarantee provided by
EKF to the buyer, the Outstanding Principal Amount shall be subject to a FR in
an amount which is equal to one third (1/3) of the price of the Sale, and (ii)
in a Sale in which there is a guarantee provided by EKF to the buyer totally or
partially, the Outstanding Principal Amount shall be subject to a (x) FR in an
amount which shall be equal to one third (1/3) of the portion of the price of
the Sale that is not guaranteed by EKF and to (y) a FR equal to one fourth (1/4)
of the price of the Sale that is guaranteed by EKF. However, in no case the FR
will exceed the amount of USD 2,000,000. The amount owed by the Borrower to the
Lender after the deductions provided for in SECTION 9.1. and in SECTION 9.3.
were made, is herein referred to as the "Net Outstanding Principal Amount"
9.4. Payment of the Net Outstanding Principal Amount if the Sale is completed:
If the Sale is completed, pursuant to the terms and conditions hereunder, on or
before, December 31, 2005, the repayment schedule set forth in SECTION 3.1.
shall be replaced by the one set forth below. Therefore, in such case the
Borrower shall pay on each date set forth below the amount set forth below
opposite such date (each such payment date, a "Scheduled Repayment Date" and
each such principal amount a "Schedule Repayment")
Percentage of
Principal Payment Date Outstanding Principal Amount
---------------------- ----------------------------
June 30, 2007 5%
December 31, 2007 5%
June 30, 2008 5%
December 31, 2008 5%
June 30, 2009 10%
December 31, 2009 10%
June 30, 2010 20%
December 31, 2010 20%
June 30, 2011 20%
21
9.5 Joint Venture, alliance, etc. Notwithstanding the
provisions of SECTION 8.1, the Parties agree to consider as an alternative to
the Sale of the Pledged Assets, and on a good faith basis, eventual joint
ventures, strategic alliances, and the like, among the Borrower and other
companies, aimed to obtain a more efficient use of such assets. The Borrower
agreed to consider, on a good faith basis, the Sale at a lower price if (i) it
does not receive an Offer of the Pledged Assets before December 31, 2005, and
(ii) if the Technical Expert expressly estimates a price lower than the Minimum
Cash Selling Price and the Minimum Guaranteed Selling Price
SECTION 10. MISCELLANEOUS.
-------------
10.1 Amendments and modifications. Except as stipulated
herein, the provisions of the Pledge Agreement and of the Credit Facility that
are not amended by this Agreement, continue to be understanding of the Parties
hereto and any remedies available thereunder remain in full force and effect.
Conflicts between the provisions of this Agreement and the provisions in the
Credit Facility, the provision in the Credit Facility shall prevail .
10.2 Notices.
-------
Any notice or other communication given pursuant to this
Agreement shall be sent to the appropriate Party at the following addresses:
If to the Lender: 0, Xxxx xx Xxxxxxxxx Xxxx Xxxxxx, Xxxxx
Xx Defense, France. With a copy to: Fortunatti & Xxxxxx X.X. Xxxx 000, 00xx
Xxxxx, Xxxx xx Xxxxxx Xxxxx, Xxxxxxxxx. Attention: Xx. Xxxx Xxxxxx.
If to the Borrower: Xxxxxxxxxxx Xxxxxxx 000, 0xx. xxxxx, Xxxx
xx Xxxxxx Xxxxx, Xxxxxxxxx. Attention: Xxxxxxx Xxxxxxxx.
With a copy to: Cibils - Labougle - Ibanez, Xx. Xxxxxxxxxx
000 - 0 xxxxx, Xxxx xx Xxxxxx Aires. Attention: Xx. Xxxxxxx Xxxxxx
22
All such notices and communications shall, when delivered, be
effective when delivered by the overnight courier service. All such notices and
other communications, if not in English, shall be accompanied by an English
translation.
10.3 Benefit of Agreement; Assignment. This Agreement and the
other Credit Documents shall be binding upon and inure to the benefit of and be
enforceable by the respective successors, permitted assigns, and transferees of
the Lender, without any specific notice, registration or confirmation, in case,
inter alia of any sale, merger, demerger, spin off or assets contribution or a
partial merger within the meanings of Articles L 236 and following of the French
Company Act shall be deemed to be a transfer for the purpose of the present
provision. The Borrower may not assign or transfer any of its rights or
obligations hereunder or under any other Credit Document. The Lender or any of
its assignees pursuant to this SECTION 10.3 may freely assign or participate
this Agreement and any other Credit Document, in whole or in part to any Person.
The Lender shall bear all costs and expenses (including applicable Taxes and
legal fees) incurred in connection with an assignment or transfer of its rights
hereunder or under any other Credit Document, unless such assignment or transfer
is based upon the occurrence of an Illegality, in which case the referred costs,
expenses and Taxes shall be borne by the Borrower. Following any such
assignment, any reference to the Lender in this Agreement or the other Credit
Documents shall thereafter refer to the Lender and to such assignee to the
extent of their respective interests.
10.4 No Waiver; Remedies Cumulative. No (i) failure or delay
on the part of the Lender in exercising any right, power or privilege hereunder
or under any other Credit Document, or (ii) course of dealing between the
Borrower and the Lender, shall operate as a waiver thereof; nor shall any single
or partial exercise of any right, power or privilege hereunder or under any
other Credit Document preclude any other or further exercise thereof or the
exercise of any other right, power or privilege hereunder or thereunder. The
rights, powers and remedies herein or in any other Credit Document expressly
provided are cumulative and not exclusive of any rights, powers or remedies
which the Lender would otherwise have. No notice to or demand on the Borrower in
any case shall entitle the Borrower to any other or further notice or demand in
similar or other circumstances or constitute a waiver of the rights of the
Lender to any other or further action in any circumstances without notice or
demand.
23
10.5 Computations. All computations of interest hereunder
shall be made in accordance with Article 9.2 of the Master Credit Agreement.
10.6 Governing Law; Submission to Jurisdiction; Venue. This
Agreement shall be governed by and construed in accordance with the laws of
France.
Any dispute arising out of or in connection with this Agreement
including disputes concerning their validity shall be finally settled according
to the Rules of Conciliation and Arbitration of the International Chamber of
Commerce by three (3) arbitrators appointed pursuant to this rules. The
arbitration shall take place in Paris and be conducted in English.
Notwithstanding the provisions herein above, the Borrower
hereby irrevocably accepts that the Arranger and/or the Lender shall have the
right to start any proceeding against the Borrower with respect to the Pledge
Agreement (a) in the competent court in Argentina or (b) in any other
jurisdiction where assets of the Borrower are located.
10.7 Illegality. If any court of competent jurisdiction
declares any provisions of this Agreement illegal, void or unenforceable, the
other provisions shall not be affected but shall remain in full force and
effect. The Parties shall use their best endeavours to substitute any provision
so declared to be illegal, void or unenforceable, for provisions which shall be
as closely as possible of a similar nature but which shall be legally
enforceable
10.8 Obligation to Make Payments in USD. The obligation of the
Borrower to make payments in USD of the principal of and interest on the
Outstanding Principal Amount and any other amounts due hereunder or under any
other Credit Document shall not be discharged or satisfied by any tender, or any
recovery pursuant to any judgment, which is expressed in or converted into any
currency other than USD, except to the extent such tender or recovery shall
result in the actual receipt by the Lender of the full amount of USD expressed
to be payable in respect of the principal of and interest on the Outstanding
Principal Amount and all other amounts due hereunder or under any other Credit
Document. The obligation of the Borrower to make payments in USD as aforesaid
shall be enforceable as an alternative or additional cause of action for the
purpose of recovery in USD of the amount, if any, by which such actual receipt
shall fall short of the
24
full amount of USD expressed to be payable in respect of the principal of and
interest on the Outstanding Principal Amount and any other amounts due under any
other Credit Document, and shall not be affected by judgment being obtained for
any other sums due under this Agreement or under any other Credit Document.
10.9 Headings Descriptive. The headings of the several
sections and subsections of this Agreement are inserted for convenience only and
shall not in any way affect the meaning or construction of any provision of this
Agreement.
10.10 Amendment or Waiver. Neither this Agreement nor any
other Credit Document nor any term hereof or thereof may be changed, waived,
discharged or terminated unless such change, waiver, discharge or termination is
in writing signed by the Borrower and the Lender.
Made in Ciudad Autonoma de Buenos Aires, on June 3, 2004 in
two original copies.
XXXXXXXXXX HERMANOS S.A.
By: /s/ Xxxxxxx Xxxxxxxxxx
----------------------------------------
Name: Xxxxxxx Xxxxxxxxxx
Title: President
25
CALYON AS SUCCESSOR OF CREDIT
LYONNAIS S.A.
By: /s/ Xxxxxx Xxxxxx
---------------------------------
Name: Xxxxxx Xxxxxx
Title: Director
By: /s/ Nieleskat Nordam
---------------------------------
Name: Nieleskat Nordam
Title: Senior Legal Advisor
26
ANNEX I
-------
The Credit facility
The Pledge Agreement
27
ANNEX II
--------
FORM OF OFFICER'S CERTIFICATE
I, THE UNDERSIGNED,_________________ of Xxxxxxxxxx Hermanos S.A.
(the "Borrower"), a corporation organized and existing under the laws of the
Republic of Argentina, DO HEREBY CERTIFY that:
1. This Certificate is furnished pursuant to the AMENDMENT
AGREEMENT NO. 5 and AMENDMENT No. 8 OF THE ADMISSION FORM , dated as of June 3,
2004, between the Borrower, and CALYON as successor of Credit Lyonnais S.A. as
the arranger and Lender (such agreement, as in effect on the sate of this
Certificate, hereinafter the "Agreement"). Unless otherwise defined herein,
capitalized terms used in this Certificate shall have meanings provided in the
Agreement.
2. Attached hereto as EXHIBIT I is a true and correct copy of the
estatutos sociales of the Borrower as in effect on the day hereof together with
all amendments thereto adopted through such date.
3. Attached hereto as EXHIBIT II is a true and correct copy of
resolutions duly adopted by the Board of Directors of the Borrower at a meeting
on May [__], 2004, at which a quorum was present and acting throughout, which
resolutions have not been revoked, modified, amended or rescinded and are in
full force and effect.
IN WITNESS WHEREOF, I have hereunto set my hand this [__] day
of May, 2004.
MASTELLONES HERMANOS S.A.
By:
----------------------------------
Name:
----------------------------------
Title: [____________________]
28
ANNEX III
---------
Form of Legal Opinion
29
ANNEX IV
--------
Form of Power of attorney
30
