EXHIBIT 99.10
FIFTH MODIFICATION OF LOAN DOCUMENTS
This FIFTH MODIFICATION OF LOAN DOCUMENTS (this "Agreement") made as
of the 14th day of July, 2004 by and among PROMOTORA SERVIA, S.A. DE C.V., a
Mexican corporation, having an address at Xxxxxx 0, Xxxxxxxx 000, Xxx. Xxxxxx,
Xxxxxx, D.F. ("Borrower"), XXXX XXXXXXX, having an address at Xxxxxx 0, Xxxxxxxx
00, Xxxxxx D.F.C.P. 06600 and XXXXX XXXXXXX, having an address at Xxxxxx 0,
Xxxxxxxx 00, Xxxxxx D.F.C.P. 06600 (collectively, "Guarantors") and CITIBANK,
N.A., a national banking association, having an office at 000 Xxxx 00xx Xxxxxx,
00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Lender").
W I T N E S S E T H:
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WHEREAS:
A. Lender has made a Loan (the "Loan") to Borrower in connection with
which Lender is the owner and holder of
(1) that certain Consolidated and Restated Promissory Note dated June
28, 2002 (the "Note") made by Borrower to Lender in the original principal
amount of $23,150,000, which Note is governed by the Loan Agreement (as
hereinafter defined) and secured by the Security Agreements, the Original
Art Pledge and the Guaranty (as such terms are hereinafter defined);
(2) that certain Loan Agreement dated October 3, 2001 made by and
among Borrower's predecessor-in-interest, Guarantors, certain other
entities controlled by Guarantors ("Other Entities") and Lender, as amended
by that certain Amendment No. 1 To The Loan Agreement dated as of December
3, 2001 made by and among Borrower's predecessor-in-interest, Guarantors
and the Other Entities, by that certain Modification of Loan Agreement
dated as of March 31, 2002 made by and between Borrower and Lender, by that
certain Modification of Loan Agreement dated as of June 28, 2002 made by
and between Borrower and Lender, by that certain Modification of Loan
Documents dated as of September 6, 2002 made by and between Borrower and
Lender, that certain Second Modification of Loan Documents dated as of July
1, 2003 made by and among Borrower, Guarantors and Lender, that certain
Third Modification of Loan Documents dated as of December 1, 2003 made by
and among Borrower, Guarantors and Lender and that certain Fourth
Modification of Loan Documents dated as of March _____, 2004 made by and
among Borrower, Guarantors, and Lender (collectively, the "Loan
Agreement");
(3) the following security agreements (collectively, the "Security
Agreements"): (a) that certain Security Agreement dated December 21, 2001
made by GE Capital Bank, S.A., Institucion de Banca Multiple, GE Grupo
Financiero, as trustee ("GE Capital") for the benefit
of Lender, (b) that certain Contrato de Caucion Bursatil dated December 26,
2001 made by GE Capital for the benefit of Lender, (c) that certain
Contrato De Fideicomiso dated December 14, 2001 made by GE Capital for the
benefit of Lender, (d) that certain Security Agreement dated June 28, 2002
made by Servicios Directivos Servia S.A. de C.V. ("Servicios") for the
benefit of Lender, (e) that certain Contrato De Caucion Bursatil dated June
28, 2002 made by Servicios for the benefit of Lender, (f) that certain
Ratification and Confirmation of Security Agreement dated as of July 1,
2003 made by Servicios for the benefit of Lender, (g) that certain
Ratification and Confirmation of Security Agreement dated as of July 1,
2003 made by GE Capital for the benefit of Lender and (h) that certain
Contrato De Caucion Bursatil dated as of July 1, 2003 made by Servicios for
the benefit of Lender, which Security Agreements encumber all of the right,
title, estate and interest of Borrower in and to certain Property (as
defined in said Security Agreements);
(4) that certain Assignment of Sale Proceeds dated as of October 3,
2001 made by Xxxxxxx X.X. (f/k/a Xxxxxxx Limited) ("Xxxxxxx") to Lender and
ratified by Xxxxxxx by letter dated September 6, 2002 (the "Original Art
Pledge");
(5) that certain Pledge and Security Agreement dated as of July 1,
2003 made by Xxxxxxx for the benefit of Lender and that certain Contrato de
Prenda dated as of July 1, 2003 made by Xxxxxxx for the benefit of Lender
(collectively, the "New Art Pledge"); and
(6) that certain Guaranty dated October 3, 2001 made by Guarantors for
the benefit of Lender, as ratified by that certain Ratification and
Confirmation of Guaranty dated as of March 31, 2002 made by Guarantors for
the benefit of Lender, that certain Ratification and Confirmation of
Guaranty dated as of June 28, 2002 made by Guarantors for the benefit of
Lender, that certain Ratification and Confirmation of Guaranty dated as of
September 6, 2002 made by Guarantors for the benefit of Lender and that
certain Ratification and Confirmation of Guaranty dated as of July 1, 2003
(collectively, the "Guaranty").
The Note, Loan Agreement, Security Agreements, Original Art Pledge, the New Art
Pledge and Guaranty, together with all other documents given in connection
therewith or herewith, as same may have been or may be amended or modified from
time to time, are sometimes hereinafter collectively referred to as the "Loan
Documents";
B. Borrower has requested Lender make certain modifications to the Loan
Documents and Lender has agreed to do so provided and on condition that Borrower
complies with all of the terms, provisions, covenants and conditions hereinafter
set forth. (All terms not otherwise defined in this Agreement shall have the
meanings ascribed to them in the Loan Documents.)
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NOW, THEREFORE, in consideration of the mutual promises and agreements
hereinafter set forth and other good and valuable consideration exchanged, the
receipt and sufficiency of which is hereby acknowledged by each party hereto, it
is agreed as follows:
1. Outstanding Principal Balance. Borrower and Guarantors hereby
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acknowledge and agree that the outstanding principal balance of the Loan as of
the date hereof is SIX MILLION FOUR HUNDRED FORTY THOUSAND and 00/100 DOLLARS
($6,440,000) ("Principal Balance"), and that said sum, together with any and all
monies or indebtedness due and owing under the Loan Documents (collectively,
"Indebtedness"), including, but not limited to, principal, interest, accrued
interest and advances, is due and payable to Lender in accordance with terms and
provisions of the Loan Documents (as hereby modified) without offset, defense,
claim or counterclaim of any kind or nature whatsoever.
2. Revised Maturity Date. Notwithstanding anything contained in
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the Loan Agreement, the Note or any of the other Loan Documents to the contrary,
the entire Indebtedness, if not sooner paid, shall be due and payable on the
earlier to occur of (i) January 31, 2005, (ii) a Primary Equity Offering or
(iii) a Company Sale.
3. $1,500,000 Payment. Borrower shall pay to Lender, on or before
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July 31, 2004, TIME BEING OF THE ESSENCE, a payment in the amount of $1,500,000
(the "1,500,000 Payment"). Lender shall apply $1,440,000 of the $1,500,000
Payment to reduce the outstanding Principal Balance and the balance of the
$1,500,000 Payment (i.e., $60,000), together with Borrower's cash on hand with
Lender, shall be used to replenish the Interest Reserve, which shall have a
balance of $150,000.
4. Release of TMM Shares. Upon Lender's receipt of the $1,500,000
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Payment, Lender agrees to release the TMM Shares pledged to Lender by Servicios
(700,000 ADRs plus 425,850 local shares). Lender shall have no obligation to
release such shares unless and until Lender has received the $1,500,000 Payment.
5. Release of Artwork. Provided and on condition that no Event of
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Default has occurred and is continuing, in connection with the sale by Xxxxxxx
of the piece of artwork entitled "Xxxxxxx Xxxxxx" by Xxxxx Xxxxxx, Lender agrees
to release, upon written request by Xxxxxxx together with confirmation of sale,
without payment to Lender of any additional release fee, Lender's lien on such
artwork. Lender shall have no obligation to release Lender's lien on such
artwork unless and until Lender has received the $1,500,000 Payment.
6. Authority and Enforceability. Borrower represents and warrants
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to Lender that the execution of this Agreement, the delivery by Borrower to
Lender of all monies, items and documents provided for herein, Borrower's
performance hereof and the transactions contemplated hereby have been duly
authorized by the requisite action on the part of Borrower. This Agreement
constitutes the valid and binding obligation of Borrower and Guarantors and is
enforceable against Borrower and Guarantors in accordance with its terms,
provisions, covenants and conditions.
7. Financial Condition. Borrower and Guarantors represent and
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warrant to Lender that Borrower's and Guarantors' financial condition is and
shall remain such as to enable
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Borrower and Guarantors to perform all of Borrower's and Guarantors' monetary
obligations as provided in this Agreement and the Loan Documents.
8. Continuous Representations. Borrower and Guarantors are and
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shall continue to be in compliance with all of the covenants, representations
and warranties contained in the Loan Documents.
9. No Defenses, Set-offs, Claims or Counterclaims. Borrower and
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Guarantors represent and warrant to Lender that Borrower and Guarantors have no
defenses, set-offs, claims or counterclaims of any kind or nature whatsoever
against Lender or Lender Parties (as hereinafter defined) with respect to this
Agreement or the Loan Documents or Borrower's and Guarantors' obligations
hereunder or thereunder, or any action previously taken or not taken by Lender
or Lender Parties with respect hereto or thereto or with respect to any security
interest, encumbrance, lien, or collateral given to Lender in connection
herewith or therewith.
10. Waiver and Release. Borrower and Guarantors hereby
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unconditionally and irrevocably waive, release, and forever discharge Lender,
and Lender's parent, affiliates, subsidiaries (such persons or parties being
hereinafter collectively referred to as "Lender Entities") and Lender's and
Lender Entities' agents, officers, directors, shareholders, partners, members
and employees (Lender, Lender Entities and such other persons or parties being
herein collectively referred to as "Lender Parties"), from and against any and
all rights, claims, counterclaims, actions or causes of action against Lender
and/or Lender Parties, arising out of Lender's and/or Lender Parties' actions or
inactions in connection with the Loan prior to the execution and delivery of
this Agreement, or any security interest, lien or collateral given to Lender
and/or Lender Parties in connection therewith, as well as any and all rights of
set-off, defenses, claims, actions, causes of action and any other bar to the
enforcement of this Agreement and/or the Loan Documents.
11. Partial Invalidity. In the event any one or more of the
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provisions contained in this Agreement shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality,
or unenforceability shall not affect any other provision of this Agreement, but
this Agreement shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein or therein.
12. Amendment. This Agreement shall not be amended or modified in
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any way except by an instrument in writing executed by each of the parties
hereto.
13. Choice of Law; Service of Process. This Agreement and all
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matters related hereto shall be construed and enforced in accordance with the
laws of the State of New York as to validity, construction, performance and
remedies without reference to principles of conflict of laws. Borrower and
Guarantors hereby knowingly, voluntarily, intentionally, unconditionally and
irrevocably consent to submit to personal jurisdiction in all state and federal
courts located in the State and County of New York in any action or proceeding
relating to this Agreement, the Loan or any of the Loan Documents. Service of
any summons and complaint or other process in any such action or proceeding may
be made upon Borrower and Guarantors by registered or certified mail, return
receipt requested, at the address set forth herein, Borrower and Guarantors
hereby waiving personal service thereof, or as may otherwise be permitted by
law.
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Borrower and Guarantors hereby knowingly, voluntarily, intentionally,
unconditionally and irrevocably (a) waive any rights of Borrower or Guarantors
pursuant to the laws of Mexico or any other court or jurisdiction by virtue of
which exclusive jurisdiction of the courts of Mexico or any other court or
jurisdiction might be claimed; (b) waive any and all objections as to venue and
any and all rights Borrower or Guarantors may have to seek a change of venue
with respect to any action or proceeding; (c) waive any and all defenses granted
by the laws of Mexico or any other country or jurisdiction unless such defenses
are also allowed by the laws of the State of New York; and (d) agree that any
final judgment rendered against Borrower and Guarantors in any such action or
proceeding shall be conclusive and may be enforced in Mexico pursuant to
applicable law or treaty or any other country or jurisdiction by suit on the
judgment or in any manner provided by applicable law or treaty and expressly
consents to the affirmation of the validity of any such judgment by the courts
of Mexico or any other country or jurisdiction so as to permit execution
thereon. Nothing herein shall affect the right of Lender to commence legal
proceedings or otherwise proceed against Borrower or Guarantors in any other
country or jurisdiction in which assets of the Borrower or Guarantors are
located or to serve process in any other manner permitted by applicable law or
treaty. Borrower or Guarantors further agree that any action or proceeding by
Borrower or Guarantors against Lender in respect to any matters arising out of,
or in any way relating to, this Agreement, the Loans or any of the Loan
Documents shall be brought only in the State and County of New York. Borrower
and Guarantors hereby represent and warrant that, to the best of Borrower's or
Guarantors' knowledge, there are no treaties or laws which would preclude the
recognition of any judgment rendered by any state or federal court sitting in
the State of New York, and the enforcement of any such judgment, by the courts
of Mexico, and Borrower and Guarantors agrees that Borrower and Guarantors shall
interpose no defense or claim against and shall consent to the issuance of all
necessary documents by the courts of Mexico in order to execute upon any such
judgment.
14. Entire Agreement. This Agreement and the Loan Documents
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constitute the entire agreement among the parties hereto with respect to the
matters set forth herein, and there are no other agreements, understandings,
warranties or representations with respect to said matters. Any exhibits
annexed hereto are hereby incorporated herein by reference and made a part
hereof. This Agreement is not intended to have any legal effect, or to be a
legally binding agreement, or any evidence thereof, until this Agreement has
been signed by each of the parties hereto, a fully executed counterpart has been
delivered to Borrower and Guarantors, and all conditions to effectiveness
hereunder have been satisfied.
15. Third Party Beneficiaries. This Agreement is entered into for
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the exclusive benefit of the parties hereto and (subject to the terms of
Paragraph 16 hereof) no other party shall derive any rights or benefits
herefrom.
16. Binding Effect. This Agreement shall be binding upon and
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inure to the benefit of the parties hereto and their respective heirs,
executors, administrators, successors, legal representatives and assigns.
17. Defaults. The failure of Borrower or Guarantors to fulfill
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any of the terms, provisions, covenants or conditions set forth in this
Agreement or in any of the Loan Documents shall constitute a default under this
Agreement and the Loan Documents which shall
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entitle Lender to exercise any and/or all of Lender's rights and remedies
hereunder and/or thereunder and/or at law.
18. Loan Documents Continue. Except as expressly provided in this
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Agreement, all of the terms, provisions, covenants and conditions of the Loan
Documents shall be and remain in full force and effect as written, unmodified
hereby. Borrower and Guarantors hereby further ratify and acknowledge the
continuing validity and enforceability of the Loan Documents as herein modified
and the obligations and first liens evidenced thereby. In the event of any
conflict between the terms, provisions, covenants and conditions of this
Agreement and the Loan Documents, this Agreement shall control. This Agreement
shall not waive, suspend, diminish or impair the Loan Documents or the
obligations, liabilities, liens or security interests represented thereby.
19. Construction. This Agreement shall be construed without
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regard to any presumption or other rule requiring construction against the party
causing this Agreement to be drafted.
20. Notices. All notices under this Agreement shall be in writing
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and shall be deemed sufficiently given or served for all purposes when delivered
as set forth in the Loan Agreement.
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21. Waiver of Trial By Jury. Lender, Borrower and Guarantors
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hereby knowingly, voluntarily, intentionally, unconditionally and irrevocably
waive all right to trial by jury in any action, proceeding or counterclaim
arising out of or relating to this Agreement or any of the other Loan Documents.
IN WITNESS WHEREOF, the undersigned have executed and delivered this
instrument as of the day and year first above written.
LENDER:
CITIBANK, N.A.
By: /s/ Xxxxxxxxx X. Xxxxxx
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Xxxxxxxxx X. Xxxxxx
Vice President
BORROWER:
PROMOTORA SERVIA, S.A. DE C.V.
By: /s/ Xxxx Xxxxxxx Xxxxxxx
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Xxxx Xxxxxxx Xxxxxxx
President
By: /s/ Xxxxx Xxxxxxx Xxxxxxx
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Xxxxx Xxxxxxx Xxxxxxx
Vice President
GUARANTORS
/s/ XXXX XXXXXXX
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XXXX XXXXXXX
/s/ XXXXX XXXXXXX
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XXXXX XXXXXXX
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