EXHIBIT 99.11
SIXTH MODIFICATION OF LOAN DOCUMENTS
This SIXTH MODIFICATION OF LOAN DOCUMENTS (this "Agreement") made as
of the ____ day of February, 2005 by and among PROMOTORA SERVIA, S.A. DE C.V., a
Mexican corporation, having an address at Paseo de la Reforma 610 Col. Lomas de
Chapultepec Mexico, D.F. C.P. 11000 ("Borrower"), XXXX XXXXXXX, having an
address at Paseo de la Reforma 610 Col. Xxxxx xx Xxxxxxxxxxx Xxxxxx, X.X. X.X.
00000 and XXXXX XXXXXXX, having an address at Paseo de la Reforma 610 Col. Lomas
de Chapultepec Mexico, D.F. C.P. 11000 (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, that certain Fourth Modification
of Loan Documents dated as of March 18, 2004 made by and among Borrower,
Guarantors and Lender and that certain Fifth Modification of Loan Documents
dated as of July 14, 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 d Banca Multiple, GE Grupo
Financerio, 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, (e) 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
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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.)
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 FIVE MILLION and 00/100 DOLLARS ($5,000,000) ("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) October 31, 2005, (ii) a Primary Equity Offering or
(iii) a Company Sale.
3. Extension Fee. Concurrently with the execution hereof,
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Borrower shall pay to Lender an extension fee in the amount of $25,000 (the
"Extension Fee").
4. Interest Reserve. Concurrently with the execution hereof,
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Borrower shall deposit $150,000 (the "Interest Reserve Deposit") into the
Interest Reserve.
5. Release of TMM Shares. Upon the execution hereof and the
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delivery of the Extension Fee and the Interest Reserve Deposit, Lender agrees to
release 3,152,150 TMM Shares pledged to Lender by GE Capital (2,578,000 ADRs
plus 574,150 local shares).
6. Release of Cash Collateral. Upon the execution hereof and the
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delivery of the Extension Fee and the Interest Reserve Deposit, Lender agrees to
release to Borrower $1,000,000 of the cash collateral delivered to Lender as
security for the Loan.
7. 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.
8. 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 Borrower and Guarantors to perform all of
Borrower's and Guarantors' monetary obligations as provided in this Agreement
and the Loan Documents.
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9. 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.
10. 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.
11. 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.
12. 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.
13. 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.
14. 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. Borrower and Guarantors hereby knowingly, voluntarily, intentionally,
unconditionally and irrevocably (a) waive any rights of Borrower or Guarantors
pursuant to the laws of Mexico
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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.
15. 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.
16. 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 17 hereof) no other party shall derive any rights or benefits
herefrom.
17. 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.
18. 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 entitle Lender to exercise any
and/or all of Lender's rights and remedies hereunder and/or thereunder and/or at
law.
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19. 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 (including, without
limitation, the Note, the Security Agreements and the Guaranty) 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.
20. 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.
21. 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. Copies of all notices to Lender shall be
sent to:
DLA Xxxxx Xxxxxxx Xxxx Xxxx US LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
[balance of page intentionally left blank]
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22. 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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