Exhibit 2.4
EXECUTION COPY
U.S. $60,000,000
CREDIT AGREEMENT
Dated as of December 18, 2002
among
FEMSA EMPAQUES, S.A. DE C.V.,
as Borrower,
FABRICAS MONTERREY, S.A. DE C.V. and SILICES DE
VERACRUZ, S.A. DE C.V.,
as Guarantors,
THE FINANCIAL INSTITUTIONS PARTY HERETO,
as Lenders,
BBVA SECURITIES INC.,
as Lead Arranger,
BBVA BANCOMER, S.A., INSTITUCION DE BANCA MULTIPLE,
GRUPO FINANCIERO BBVA BANCOMER,
as Administrative Agent,
EXPORT DEVELOPMENT CANADA,
as Syndication Agent,
and
BANKBOSTON N.A.,
as Documentation Agent
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TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS......................................................................5
SECTION 1.01 Certain Defined Terms.....................................................................5
SECTION 1.02 Accounting Terms.........................................................................16
SECTION 1.03 Computation of Time Periods..............................................................16
ARTICLE II AMOUNTS AND TERMS OF THE ADVANCES...................................................................16
SECTION 2.01 The Advances.............................................................................16
SECTION 2.02 Making the Advances.....................................................................17
SECTION 2.03 Notes....................................................................................18
SECTION 2.04 Prepayments; Payments....................................................................18
SECTION 2.05 Interest.................................................................................20
SECTION 2.06 Continuations, Interest Rate Determination...............................................20
SECTION 2.07 Fees.....................................................................................21
SECTION 2.08 Increased Costs, Etc.....................................................................21
SECTION 2.09 Payments and Computations................................................................23
SECTION 2.10 Taxes....................................................................................24
SECTION 2.11 Sharing of Payments, Etc.................................................................27
SECTION 2.12 Funding Losses...........................................................................27
SECTION 2.13 Use of Proceeds..........................................................................27
ARTICLE III CONDITIONS OF LENDING..............................................................................28
SECTION 3.01 Conditions Precedent to the Borrowing....................................................28
ARTICLE IV REPRESENTATIONS AND WARRANTIES......................................................................30
SECTION 4.01 Legal Status.............................................................................30
SECTION 4.02 Governmental Approvals...................................................................30
SECTION 4.03 No Violation.............................................................................30
SECTION 4.04 Litigation...............................................................................31
SECTION 4.05 Financial Statements; No Material Adverse Change.........................................31
SECTION 4.06 Tax Returns and Payments.................................................................31
SECTION 4.07 Power and Authority......................................................................31
SECTION 4.08 Compliance with Laws.....................................................................31
SECTION 4.09 Compliance with Environmental Laws.......................................................32
SECTION 4.10 Priority of Advances.....................................................................32
SECTION 4.11 True and Complete Disclosure.............................................................32
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SECTION 4.12 Investment Company Act; Public Utility Holding Company Act...............................32
SECTION 4.13 No Immunity..............................................................................32
SECTION 4.14 Use of Proceeds..........................................................................32
SECTION 4.15 Debt.....................................................................................33
SECTION 4.16 Subsidiaries.............................................................................33
SECTION 4.17 Fees and Enforcement.....................................................................33
SECTION 4.18 Form of Documentation....................................................................33
SECTION 4.19 Withholding and Value-Added Taxes........................................................33
ARTICLE V COVENANTS OF THE CREDIT PARTIES......................................................................34
SECTION 5.01 Affirmative Covenants....................................................................34
SECTION 5.02 Negative Covenants.......................................................................36
SECTION 5.03 Reporting Requirements...................................................................39
ARTICLE VI EVENTS OF DEFAULT...................................................................................41
SECTION 6.01 Events of Default........................................................................41
ARTICLE VII GUARANTY...........................................................................................43
SECTION 7.01 The Guaranteed Obligations...............................................................43
SECTION 7.02 Continuing Obligation....................................................................43
SECTION 7.03 No Discharge.............................................................................43
SECTION 7.04 Tolling of Statute of Limitations........................................................44
SECTION 7.05 Bankruptcy...............................................................................44
SECTION 7.06 Independent Obligation...................................................................44
SECTION 7.07 Authorization............................................................................44
SECTION 7.08 Reliance.................................................................................45
SECTION 7.09 Waiver...................................................................................45
SECTION 7.10 Nature of Liability......................................................................46
ARTICLE VIII THE ADMINISTRATIVE AGENT..........................................................................46
SECTION 8.01 Authorization and Action.................................................................46
SECTION 8.02 Duties and Reliance, Etc.................................................................47
SECTION 8.03 Administrative Agent and Affiliates......................................................47
SECTION 8.04 Lender Credit Decision...................................................................48
SECTION 8.05 Indemnification..........................................................................48
SECTION 8.06 Successors to Administrative Agent.......................................................48
SECTION 8.07 Documentation Agent; Syndication Agent; Arrangers........................................49
ARTICLE IX MISCELLANEOUS.......................................................................................49
SECTION 9.01 Amendments, Etc..........................................................................49
SECTION 9.02 Notices, Etc.............................................................................49
SECTION 9.03 No Waiver, Remedies......................................................................50
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SECTION 9.04 Costs, Expenses and Indemnification......................................................50
SECTION 9.05 Right of Set-off.........................................................................51
SECTION 9.06 Binding Effect...........................................................................51
SECTION 9.07 Assignments and Participations...........................................................51
SECTION 9.08 Governing Law............................................................................53
SECTION 9.09 Execution in Counterparts; Integration...................................................53
SECTION 9.10 Confidentiality..........................................................................54
SECTION 9.11 Judgment Currency........................................................................54
SECTION 9.12 Consent to Jurisdiction..................................................................54
SECTION 9.13 Survival.................................................................................55
SECTION 9.14 WAIVER OF JURY TRIAL.....................................................................55
SECTION 9.15 Limitation on Liability..................................................................55
ANNEX I - Lending Offices and Commitments
ANNEX II - Existing Liens
ANNEX III - Existing Debt
ANNEX IV - Existing Subsidiaries
EXHIBIT A - Form of Note
EXHIBIT B - Notice of Borrowing
EXHIBIT C - Officer's Certificate
EXHIBIT D - Secretary's Certificate
EXHIBIT E-1 - Form of Opinion of New York Counsel to the Borrower and the Guarantors
EXHIBIT E-2 - Form of Opinion of Mexican Counsel to the Borrower and the Guarantors
EXHIBIT E-3 - Form of Opinion of New York Counsel to the Lenders and the Administrative Agent
EXHIBIT F - Form of Assignment and Acceptance
EXHIBIT G - Form of Subordination Agreement
EXHIBIT H - Poder
EXHIBIT I - Joinder Agreement
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CREDIT AGREEMENT, dated as of December 18, 2002, is made among FEMSA
EMPAQUES, S.A. de C.V. (the "Borrower"), a sociedad anonima de capital variable
organized and existing under the laws of Mexico, FABRICAS MONTERREY, S.A. DE
C.V. and SILICES DE VERACRUZ, S.A. DE C.V., each a sociedad anonima de capital
variable organized and existing under the laws of Mexico, and such other
Material Subsidiaries (as defined below) of the Borrower as may, from time to
time, pursuant to Section 5.01(j) hereof, join in this Agreement (as defined
below) as guarantors (each, a "Guarantor" and collectively, the "Guarantors"),
the financial institutions (the "Lenders") listed on the signature pages hereof
and which may from time to time become parties hereto, BBVA BANCOMER, S.A.,
INSTITUCION DE BANCA MULTIPLE, GRUPO FINANCIERO BBVA BANCOMER, as administrative
agent (the "Administrative Agent") for the Lenders hereunder, EXPORT DEVELOPMENT
CANADA, as syndication agent (the "Syndication Agent" or "EDC"), BANKBOSTON
N.A., as documentation agent (the "Documentation Agent"), BBVA SECURITIES INC.,
as lead arranger (the "Lead Arranger") and EXPORT DEVELOPMENT CANADA and
BANKBOSTON N.A., as arrangers (the "Arrangers").
W I T N E S S E T H :
WHEREAS, subject to and upon the terms and conditions herein set forth, the
Lenders are willing to make available to the Borrower the credit facility
provided for herein;
NOW, THEREFORE, in consideration of the premises and mutual agreements
hereinafter contained, the parties hereto hereby agree as follows:
Article I
DEFINITIONS AND ACCOUNTING TERMS
1.01 Certain Defined Terms. As used in this Agreement (as defined below),
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):
"Administrative Agent" shall have the meaning specified in the preamble to
this Agreement and shall include any successor appointed pursuant to Section
8.06.
"Administrative Agent's Account" shall mean the account of the
Administrative Agent maintained by the Administrative Agent with BBVA New York,
New York, Account No. 0000157115, Beneficiary: BBVA Bancomer, S.A. Mexico D.F.,
Reference: Femsa Empaques, S.A. de C.V., ABA No.: 000000000, or such other
account as the Administrative Agent may hereafter designate in writing as such
to each of the other parties hereto.
"Advance" shall have the meaning specified in Section 2.01.
"Affiliate" shall mean, as to any Person, any other Person that, directly
or indirectly, controls, is controlled by or is under common control with such
Person or is a director or officer of such Person. For purposes of this
definition, the term "control" (including the terms "controlling," "controlled
by" and "under common control with") of a Person means the possession, direct or
indirect, of the power to vote 10% or more of the Voting Stock of such Person or
to direct or cause the direction of the management and policies of such Person,
whether through the ownership of Voting Stock, by contract or otherwise.
"Agreement" shall mean this Credit Agreement, as modified, supplemented or
amended from time to time.
"Applicable Margin" shall mean 0.95%.
"Arrangers" shall have the meaning specified in the preamble to this
Agreement.
"Asset Sale" shall mean any sale, transfer or other disposition to any
Person of any Non-Guarantor Subsidiary or all or substantially all of the assets
of any such Non-Guarantor Subsidiary.
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"Assignment and Acceptance" shall mean an assignment and acceptance entered
into by a Lender and an Eligible Assignee, and accepted by the Administrative
Agent and the Borrower, in accordance with Section 9.07 and in substantially the
form of Exhibit F hereto.
"Bankruptcy Code" shall mean Title 11 of the United States Code entitled
"Bankruptcy," as now or hereafter in effect, or any successor thereto.
"Bankruptcy Law" shall mean any applicable U.S. federal, Mexican federal,
state, foreign or local statute, law, rule, regulation, ordinance, code, binding
and enforceable guideline, binding and enforceable written policy and rule of
common law now or hereafter in effect and in each case as amended, and any
judicial or administrative interpretation thereof, including any judicial or
administrative order, consent, decree or judgment, to the extent now or
hereafter in effect with respect to the Borrower, the Guarantors or any of their
respective Subsidiaries, relating to the reorganization, arrangement, adjustment
of debt, relief of debtors, dissolution, suspension of payments, insolvency or
liquidation or similar law of any jurisdiction. The term Bankruptcy Law shall
include, without limitation, the Mexican Ley de Concursos Mercantiles, as now or
hereafter in effect, or any successor thereto, and the Bankruptcy Code.
"Borrower" shall have the meaning specified in the preamble to this
Agreement.
"Borrowing" shall mean a borrowing consisting of simultaneous Advances made
by the Lenders.
"Borrowing Date" shall mean the date on which the Borrowing hereunder
occurs.
"Business Day" shall mean (i) for all purposes other than as covered by
clause (ii) below, any day except a Saturday, Sunday or any other day which
shall be in New York, Ottawa or Mexico City a legal holiday or a day on which
banking institutions are authorized or required by law or other government
action to close, and (ii) with respect to all notices and determinations in
connection with, and payments of principal and interest on, Advances, any day
(x) except a Saturday, Sunday or any other day which shall be in New York,
Ottawa or Mexico City a legal holiday or a day on which banking institutions are
authorized or required by law or other government action to close and (y) which
is also a day for trading by and between banks in the London interbank
Eurodollar market.
"Capitalized Leases" shall have the meaning specified in clause (d) of the
definition of Debt.
"Change of Control" shall mean (i) any Person or two or more Persons acting
in concert (other than FEMSA and/or any Subsidiary of FEMSA) shall have acquired
beneficial ownership, directly or indirectly, of Voting Stock of the Borrower
(or other securities convertible into such Voting Stock) representing 51% or
more of the combined voting power of all Voting Stock of the Borrower or (ii)
any Person or two or more Persons acting in concert (other than FEMSA and/or any
Subsidiary of FEMSA) shall have acquired by contract or otherwise, or shall have
entered into a contract or arrangement that, upon consummation, will result in
its or their acquisition of the power to exercise, directly or indirectly, a
controlling influence over the management or policies of the Borrower.
"Commitment" shall have the meaning specified in Section 2.01.
"Commitment Expiration Date" shall mean the date 10 days after the
Effective Date.
"Confidential Information" shall mean information furnished by or on behalf
of the Borrower or its Affiliates to the Administrative Agent or any Lender in
connection with this Agreement, but does not include any such information that
(i) is or becomes generally available to the public or (ii) is or becomes
available to the Administrative Agent or such Lender from a source other than
the Borrower or its Affiliates other than as a result of a breach by the
Administrative Agent or any Lender of its obligations hereunder.
"Consolidated" shall mean the consolidation of accounts in accordance with
GAAP.
"Consolidated Debt" shall mean, without duplication, all Debt of the
Borrower and its Consolidated Subsidiaries, other than Inter-company Debt.
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"Consolidated Financial Debt" shall mean, without duplication, all Debt for
borrowed money of the Borrower and its Consolidated Subsidiaries.
"Consolidated EBITDA" shall mean, for any period, the sum, determined on a
consolidated basis, of (a) operating income (or loss) for such period, plus (b)
depreciation and amortization and any other non-cash charges that have been
deducted from operating income for such period minus all non-cash credits that
have been added to operating income for such period, in each case of the
Borrower and its Consolidated Subsidiaries, determined in accordance with GAAP
for such period.
"Consolidated Interest Expense" shall mean, for any period, the
consolidated total interest expense of the Borrower and its Subsidiaries with
respect to all outstanding Debt of the Borrower and its Subsidiaries or other
obligations of the Borrower and its Subsidiaries (calculated without regard to
any limitations on the payment thereof).
"Consolidated Net Worth" shall mean, as to any Person, the Net Worth of
such Person and its Subsidiaries determined on a consolidated basis after
appropriate deduction for any minority interests in Subsidiaries.
"Credit Party" shall mean the Borrower and each of the Guarantors.
"Debt" of any Person shall mean, without duplication, (a) all indebtedness
of such Person for borrowed money, (b) all Obligations of such Person for the
deferred purchase price of property or services, (c) all Obligations of such
Person evidenced by notes, bonds, debentures or other similar instruments, (d)
all Obligations of such Person as lessee under leases that have been or should
be, in accordance with GAAP, recorded as capital leases ("Capitalized Leases"),
(e) all non-contingent Obligations of such Person under acceptance, letter of
credit or similar facilities, (f) all Obligations of such Person in respect of
Hedge Agreements, (g) all Debt of others referred to in clauses (a) through (f)
above guaranteed directly or indirectly in any manner by such Person, but only
to the extent of such guaranty, and (h) all Debt referred to in clauses (a)
through (f) above secured by (or for which the holder of such Debt has an
existing right, contingent or otherwise, to be secured by) any Lien on property
(including, without limitation, accounts and contracts rights) owned by such
Person, even though such Person has not assumed or become liable for the payment
of such Debt; provided, however, that Debt shall not include trade accounts
payable arising in the ordinary course of business or any obligations for ad
valorem taxes, value-added taxes, excise taxes or any other taxes.
"Default" shall mean any event, act or condition, which, with notice or
lapse of time, or both, would constitute an Event of Default.
"Derivatives Obligations" of any Person shall mean all payment obligations
of such Person in respect of any rate swap transaction, basis swap, forward rate
transaction, forward purchase, commodity swap, commodity option, equity or
equity index swap, equity or equity index option, bond option, interest rate
option, foreign exchange transaction, cap transaction, floor transaction, collar
transaction, currency swap transaction, cross-currency rate swap transaction,
currency option or any other similar transaction (including any option with
respect to any of the foregoing transactions) or any combination of the
foregoing transactions.
"Documentation Agent" shall have the meaning specified in the preamble to
this Agreement.
"Dollar" or "$" shall mean the lawful money of the United States.
"Effective Date" shall have the meaning specified in Section 9.06.
"Eligible Assignee" shall mean (a) a Lender, (b) an Affiliate of a Lender
or (c) any other Person approved by the Administrative Agent (such approval not
to be unreasonably withheld or delayed); provided that, in the case of clause
(c), so long as the Advances, the Notes, all interest thereon and all other
amounts payable under this Agreement and the other Loan Documents shall not have
become due and payable (whether by acceleration or otherwise) at or prior to the
time the related assignment is effected pursuant to clauses (a) through (d) of
Section 9.07, the Borrower shall have given written consent to such assignment
(such consent not to be unreasonably withheld or delayed and such consent to be
7
deemed to have been given if no objection thereto is received by the
Administrative Agent and the assigning Lender within five Business Days after
the date on which notice of the proposed assignment is received by the
Borrower); provided, further, however, that neither the Borrower nor any
Affiliate of the Borrower shall qualify as an Eligible Assignee under this
definition.
"Environmental Action" shall mean any administrative, regulatory or
judicial action, suit, demand, demand letter, notice of non-compliance or
violation, investigation, proceeding, consent order or consent agreement
relating in any way to any Environmental Law or any Environmental Permit,
including, without limitation, (a) any claim by any Governmental Authority for
enforcement, cleanup, removal, response, remedial or other actions or damages
pursuant to any Environmental Law and (b) any claim by any third party seeking
damages, contribution, indemnification, cost recovery, compensation or
injunctive relief resulting from Hazardous Materials or arising from alleged
injury or threat of injury to health, safety or the environment.
"Environmental Law" shall mean any supranational, federal, national, state,
provincial, tribal, local or municipal law, rule, regulation, order, writ,
judgment, injunction, decree, determination or award of any Governmental
Authority within or outside the United States relating to or imposing standards
of conduct concerning the environment, health, safety or Hazardous Materials.
"Environmental Permit" shall mean any permit, approval, identification
number, license or other authorization required under any Environmental Law.
"Eurocurrency Liabilities" shall have the meaning specified in Regulation D
of the Board of Governors of the U.S. Federal Reserve System, as in effect from
time to time.
"Eurodollar Rate" shall mean, for any Interest Period, an interest rate per
annum equal to the rate per annum obtained by dividing (i) (A) the rate per
annum which appears on the Reuters Screen LIBO Page (rounded upward to the next
whole multiple of 1/16th of 1%) as the London interbank offered rate for
deposits in Dollars comparable to the outstanding principal amount of the
Advances and for a term comparable to such Interest Period at or about 11:00
A.M. (London time) on the date which is two Business Days prior to the
commencement of such Interest Period; provided, however, that if more than one
rate is specified on the Reuters Screen LIBO Page, the applicable rate shall be
the arithmetic mean of all such rates (rounded upward to the next whole multiple
of 1/16th of 1%), (B) if for any reason such Reuters Screen LIBO Page is not
available or such rate is not quoted thereon, then the rate per annum which
appears on page 3750 of the Dow Xxxxx Market Service (rounded upward to the next
whole multiple of 1/16th of 1%) as the London interbank offered rate for
deposits in Dollars comparable to the outstanding principal amount of the
Advances for a term comparable to such Interest Period at or about 11:00 A.M.
(London time) on the date which is two Business Days prior to the commencement
of such Interest Period; provided, however, that if more than one rate is
specified on page 3750 of the Dow Xxxxx Market Service, the applicable rate
shall be the arithmetic mean of all such rates (rounded upward to the next whole
multiple of 1/16th of 1%), or (C) if such page 3750 of the Dow Xxxxx Market
Service is for any reason not available or such rate is not quoted thereon, then
the arithmetic mean determined by the Administrative Agent of the respective
rates per annum quoted by the Reference Banks to prime banks in the London
interbank market for deposits in Dollars comparable to the outstanding principal
amount of the Advances for a term comparable to such Interest Period (in each
such case, rounded upward to the next whole multiple of 1/16th of 1%),
determined as of 11:00 A.M. (London time) on the date which is two Business Days
prior to the commencement of such Interest Period, by (ii) a percentage equal to
100% minus the Eurodollar Rate Reserve Percentage for such Interest Period.
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"Eurodollar Rate Reserve Percentage" for any Interest Period for each
Advance shall mean the reserve percentage applicable two Business Days before
the first day of such Interest Period, under regulations issued from time to
time by the Board of Governors of the U.S. Federal Reserve System (or any
successor) for determining the maximum reserve requirement (including, without
limitation, any emergency, supplemental or other marginal reserve requirement)
for a member bank of the U.S. Federal Reserve System in New York City or by the
European Central Bank with respect to liabilities or assets consisting of or
including Eurocurrency Liabilities (or with respect to any other category of
liabilities that includes deposits by reference to which the interest rate on
Advances is determined) having a term equal to such Interest Period.
"Event of Default" shall have the meaning specified in Section 6.01.
"Exchange Rate" shall mean the Dollar/Peso exchange rate published by the
Central Bank of Mexico in the Official Gazette of the Federation on the day
payment is made.
"Existing Debt" shall have the meaning specified in Section 4.15.
"Facility" shall mean the aggregate amount of the Commitments.
"Federal Funds Rate" shall mean, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted average of
the rates on overnight Federal funds transactions with members of the U.S.
Federal Reserve System arranged by Federal funds brokers, as published for such
day (or, if such day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of New York, or, if such rate is not so published
for any day that is a Business Day, the average of the quotations for such day
for such transactions received by the Administrative Agent from three Federal
funds brokers of recognized standing selected by it.
"Fee Letter" shall have the meaning specified in Section 2.07.
"FEMSA" shall mean Fomento Economico Mexicano, S.A. de C.V.
"GAAP" shall mean generally accepted accounting principles in Mexico
consistent with those applied in the preparation of the financial statements
furnished to the Lenders prior to the date of this Agreement; provided, however,
that if the Borrower notifies the Administrative Agent in writing that the
Borrower wishes to amend the covenants in Section 5.02 (d), (j) or (k) to
eliminate the effect of any change in GAAP on the operation of such covenants
(or if the Administrative Agent notifies the Borrower that the Required Lenders
wish to amend such covenants), then compliance with such covenants shall be
determined on the basis of GAAP in effect immediately before the relevant change
in GAAP became effective, until either such written notice is withdrawn or such
covenants are amended in a manner satisfactory to the Required Lenders.
"Governmental Approval" shall mean any authorization, approval, consent,
license, concession, ruling, permit, tariff, rate, certification, order,
validation, exemption, waiver, opinion of, or registration, filing or
recordation with, any Governmental Authority.
"Governmental Authority" shall mean any federation, nation, state,
sovereign, or government, any federal, supranational, regional, state, tribal,
local or political subdivision, any governmental or administrative body,
instrumentality, department or agency or any court, tribunal, administrative
hearing body, arbitration panel, commission or any other similar
dispute-resolving panel or body, and any other entity exercising executive,
legislative, judicial, regulatory or administrative functions of government.
"Guaranteed Obligations" shall have the meaning specified in Section 7.01.
"Guarantor" shall have the meaning specified in the preamble to this
Agreement.
"Guaranty" shall have the meaning specified in Section 7.01.
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"Hazardous Materials" shall mean (a) petroleum or petroleum products,
natural or synthetic gas, asbestos in any form that is or could become friable,
urea formaldehyde foam insulation and radon gas, (b) any substances defined as
or included in the definition of "hazardous substances," "hazardous wastes,"
"hazardous materials," "extremely hazardous wastes," "restricted hazardous
wastes," "toxic substances," "toxic pollutants," "contaminants" or "pollutants,"
or words of similar import, under any Environmental Law, and (c) any other
substance, exposure to which is regulated under any Environmental Law.
"Hedge Agreements" shall mean interest rate swap, cap or collar agreements,
interest rate future or option contracts, currency swap agreements, currency
future or option contracts and other similar agreements designed to hedge
against fluctuations in interest rates or foreign exchange rates.
"Indemnified Party" shall have the meaning specified in Section 9.04(b).
"Inter-company Debt" shall mean any Debt at any time owed by the Borrower
to the Subordinated Creditor.
"Interest Period" shall mean, for each Advance, (i) initially, the period
commencing on (and including) the Borrowing Date and ending on (but excluding)
the last day of the period selected by the Borrower pursuant to the provisions
below, and (ii) thereafter, each subsequent period commencing on (and including)
the last day of the immediately preceding Interest Period and ending on (but
excluding) the last day of the period selected by the Borrower pursuant to the
provisions below. The duration of each such Interest Period shall be one, two,
three or six months, as the Borrower may elect upon notice received by the
Administrative Agent not later than 11:00 A.M. (New York City time) on the third
Business Day prior to the first day of such Interest Period; provided, however,
that:
(a) no Interest Period may end after the Maturity Date;
(b) if the syndication of the Advances has not been completed by the
Borrowing Date (as determined by the Administrative Agent in its reasonable
discretion), the first three Interest Periods commencing on the Borrowing Date
shall be one-month interest periods;
(c) whenever the last day of any Interest Period would otherwise occur on a
day other than a Business Day, the last day of such Interest Period shall be
extended to occur on the next succeeding Business Day; provided, however, that,
if such extension would cause the last day of such Interest Period to occur in
the next following calendar month, the last day of such Interest Period shall
occur on the next preceding Business Day; and
(d) except with respect to the Interest Periods described in clause (a)
above, whenever the first day of any Interest Period occurs on a day of an
initial calendar month for which there is no numerically corresponding day in
the calendar month that succeeds such initial calendar month by the number of
months in such Interest Period, such Interest Period shall end on the last
Business Day of such succeeding calendar month.
"Joinder Agreement" shall have the meaning specified in Section
5.01(j)(i)(A).
"Lead Arranger" shall have the meaning specified in the preamble to this
Agreement.
"Lender" shall mean each Lender listed on the signature pages hereof and
each Eligible Assignee that becomes a party hereto pursuant to Section 9.07.
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"Lending Office" shall mean, with respect to any Lender, the office of such
Lender specified as its "Lending Office" opposite its name on Annex I hereto or
in the Assignment and Acceptance pursuant to which it became a Lender, or such
other office of such Lender as it may from time to time specify by notice to the
Borrower and the Administrative Agent.
"Lien" shall mean any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement,
including, without limitation, the lien or retained security title of a
conditional vendor and any easement, right of way or other encumbrance on title
to real property.
"Loan Documents" shall mean this Agreement, each Note, the Subordination
Agreement and each other instrument, agreement, certificate, notice or other
document executed and/or delivered pursuant hereto or thereto or in connection
herewith or therewith.
"Margin Stock" shall have the meaning provided in Regulation U of the Board
of Governors of the U.S. Federal Reserve System.
"Material Adverse Change" shall mean a material adverse change in (a) the
business, condition (financial or otherwise), operations, properties, assets or
prospects of the Borrower and its Subsidiaries taken as a whole or (b) the
ability of the Borrower to perform its Obligations under any Loan Document.
"Material Adverse Effect" shall mean a material adverse effect on (a) the
business, condition (financial or otherwise), operations, properties, assets or
prospects of the Borrower or the Borrower and its Subsidiaries taken as a whole,
(b) the rights and remedies of the Administrative Agent or any Lender under any
Loan Document, or (c) the ability of the Borrower to perform its Obligations
under any Loan Document.
"Material Subsidiary" shall mean any Subsidiary of the Borrower (i) the
total assets or gross revenues of which, determined on a consolidated basis for
such Subsidiary and its consolidated subsidiaries, represent not less than 10%
of the total consolidated assets, consolidated gross revenues or Consolidated
EBITDA of the Borrower, as the case may be, all as calculated by reference to
the most recent quarterly financial statements (or annual financial statements,
as the case may be) of such Subsidiary and the most recent consolidated
quarterly financial statements of the Borrower and its Subsidiaries required to
be delivered hereunder, (ii) to which all or substantially all the assets and
undertakings of a Subsidiary are transferred which immediately prior to such
transfer was a Material Subsidiary, or (iii) which owns or controls any assets
which are deemed by the Required Lenders (in their sole discretion) to be
material for the operations of the Borrower or the Guarantors (including,
without limitation, licenses, trademarks, patents, information centers and
distributions channels), it being understood that the Non-Guarantor Subsidiaries
shall in no event be Material Subsidiaries.
"Maturity Date" shall mean the date which is 36 months following the
Borrowing Date.
"Mexican Bank" shall mean a multiple banking institution established under
the laws of Mexico and licensed to engage in the business of banking by the
Mexican Ministry of Finance and Public Credit.
"Mexico" shall mean the United Mexican States.
"Net Sale Proceeds" shall mean, for any Asset Sale, the net cash proceeds
received from such Asset Sale, less the estimated marginal increase in income
taxes incurred by the Borrower and the Non-Guarantor Subsidiaries in connection
with such Asset Sale and the amount of such net cash proceeds required to be
used to permanently repay any Debt which is secured by the respective assets
which were sold (other than the Advances).
"Net Worth" shall mean, as to any Person, the sum of its capital stock,
capital in excess of par or stated value of shares of its capital stock,
retained earnings and any other account which, in accordance with GAAP,
constitutes stockholders' equity, excluding any treasury stock.
"Non-Guarantor Subsidiaries" shall mean Vendo de Mexico, S.A. de C.V.,
Plasticos Tecnicos Mexicanos, S.A. de C.V., Grafo Regia, S.A. de C.V. and
Quimiproductos, S.A. de C.V.
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"Note" shall have the meaning specified in Section 2.03(b).
"Notice of Borrowing" shall have the meaning specified in Section 2.02(a).
"Obligation" shall mean, with respect to any Person, any obligation of such
Person of any kind, including, without limitation, any liability of such Person
on any claim, whether or not the right of any creditor to payment in respect to
such claim is reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, disputed, undisputed, legal, equitable, secured or unsecured, and
whether or not such claim is discharged, stayed or otherwise affected by any
proceeding referred to in Section 6.01(f). Without limiting the generality of
the foregoing, the Obligations of the Borrower under the Loan Documents include
(a) the obligation to pay principal, interest, charges, expenses, fees,
reasonable attorneys' fees and disbursements, indemnities and other amounts
payable by the Borrower under any Loan Document and (b) the obligation to
reimburse any amount in respect of any of the foregoing that any Lender, in its
sole discretion, may elect to pay or advance on behalf of the Borrower in
accordance with the Loan Documents.
"Original Note" shall have the meaning specified in Section 2.03(c).
"Other Currency" shall have the meaning specified in Section 9.11(a).
"Permitted Liens" shall mean, with respect to the Borrower or its
Subsidiaries:
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(a) Liens in existence on the Effective Date which are listed, and the
property subject thereto described, in Annex II hereto;
(b) pledges or deposits by such Person under worker's compensation laws,
unemployment insurance laws or similar legislation, or good faith deposits in
connection with bids, tenders, contracts (other than for the payment of Debt) or
leases to which such Person is a party, or deposits to secure public or
statutory obligations of such Person or deposits of cash or government bonds to
secure performance, surety or appeal bonds to which such Person is a party or
which are otherwise required of such Person, or deposits as security for
contested taxes or import duties or for the payment of rent or other obligations
of like nature, in each case incurred in the ordinary course of business;
(c) Liens arising by operation of or imposed by law or other Liens arising
out of judgments or awards in an amount not to exceed U.S.$10,000,000 in the
aggregate against such Person;
(d) Liens for taxes, assessments and other governmental charges or levies
not yet delinquent or subject to penalties for non-payment or which are being
contested in good faith by appropriate proceedings;
(e) minor survey exceptions, minor encumbrances, easements or reservations
of or with respect to, or rights of others for or with respect to, licenses,
rights-of-way, sewers, electric and other utility lines and usages, telegraph
and telephone lines, pipelines, surface use, operation of equipment, permits,
servitudes and other similar matters, or zoning or other restrictions as to the
use of real property or Liens incidental to the conduct of the business of such
Person or to the ownership of its properties which were not incurred in
connection with Debt and which do not in the aggregate materially adversely
affect the value of said properties or materially impair their use in the
operation of the business of such Person;
(f) Liens on property at the time the Borrower or any of its Subsidiaries
acquired the property or the entity owning such property, including any
acquisition by means of a merger or consolidation with or into the Borrower or
any of its Subsidiaries; provided, however, that any such Lien may not extend to
any other property owned by the Borrower or any of its Subsidiaries;
(g) Purchase Money Liens;
(h) Liens securing only Debt of a Subsidiary of the Borrower to the
Borrower or any Guarantor;
(i) Liens resulting from the deposit of funds or evidences of Debt in trust
for the purpose of defeasing Debt of the Borrower or any of its Subsidiaries;
(j) legal or equitable encumbrances deemed to exist by reason of negative
pledges or the existence of any litigation or other legal proceeding and any
related lis pendens filing (excluding any attachment prior to judgment, judgment
lien or attachment lien in aid of execution on a judgment);
(k) rights of a common owner of any interest in property held by such
Person;
(l) Liens on property or shares of stock of another Person at the time such
other Person becomes a Subsidiary of such Person; provided, however, that such
Liens are not created, incurred or assumed in connection with, or in
contemplation of, such other Person becoming such a Subsidiary of such Person;
provided further, however, that such Lien may not extend to any other property
owned by such Person or any of its Subsidiaries;
(m) any defects, irregularities or deficiencies in title to easements,
rights-of-way or other properties which do not in the aggregate materially
adversely affect the value of such properties or materially impair their use in
the operation of the business of such Person;
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(n) Liens in favor of the issuers of surety bonds or letters of credit
issued pursuant to the request of and for the account of such Person in the
ordinary course of business; provided, however, that the obligations in respect
of such letters of credit do not constitute Debt;
(o) Liens arising in connection with Capitalized Leases in an aggregate
principal amount not to exceed U.S.$10,000,000 at any time outstanding;
(p) Liens to secure any refinancing, refunding, extension, renewal or
replacement (or successive refinancings, refundings, extensions, renewals or
replacements), as a whole, or in part, of any Debt secured by any Lien referred
to in the foregoing clauses (f) through (j); provided, however, that (i) such
new Lien shall be limited to all or part of the same property that secured the
original Lien (plus improvements on or to such property) and (ii) the Debt
secured by such Lien at such time is not increased to any amount greater than
the sum of (A) the outstanding principal amount or, if greater, committed amount
of the Debt described under clauses (f) through (j) at the time the original
Lien became a Permitted Lien under this Agreement and (B) any amount necessary
to pay any fees and expenses, including premiums, related to such refinancing,
refunding, extension, renewal or replacement;
(q) Liens arising in connection with its business which, (i) do not secure
any obligation in an amount exceeding U.S.$15,000,000 and (ii) do not in the
aggregate materially detract from the value of its assets or materially impair
the use thereof in the operation of its business; and
(r) Liens on cash and cash equivalents securing Derivatives Obligations;
provided, that the aggregate amount of cash and cash equivalents subject to such
Liens shall at no time exceed an aggregate amount of U.S.$10,000,000.
"Person" shall mean an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association, joint
venture or other entity, or a government or any political subdivision or agency
thereof.
"Process Agent" shall have the meaning specified in Section 9.12(a).
"Ps." or "Peso" shall mean the lawful money of Mexico.
"Purchase Money Lien" shall mean a Lien on property securing Debt incurred
by the Borrower or any of its Subsidiaries to provide funds for all or any
portion of the cost of acquiring, constructing, altering, expanding, improving
or repairing such property or assets used in connection with such property and
any refinancing, refunding, extension, renewal or replacement (or successive
refinancings, refundings, extensions, renewals or replacements), as a whole, or
in part, of any Debt secured by such Lien; provided, however, that (i) such new
Lien shall be limited to all or part of the same property that secured the
original Lien (plus improvements on or to such property) and (ii) the Debt
secured by such Lien at such time is not increased to any amount greater than
the sum of (A) the outstanding principal amount or, if greater, committed amount
of the Debt at the time the original Lien became a Purchase Money Lien under
this Agreement and (B) any amount necessary to pay any fees and expenses,
including premiums, related to such refinancing, refunding, extension, renewal
or replacement.
"Reduced Withholding Rate" shall have the meaning specified in Section
4.19(a).
"Reference Banks" shall mean Bank of America, N.A. and Citibank N.A.
"Register" shall have the meaning specified in Section 9.07(c).
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"Registered Bank" shall mean a bank registered in the Registry of Banks,
Financial Entities, Pension and Retirement Funds and Investment Funds from
Abroad (Registro de Bancos, Entidades de Financiamiento, Fondos de Pensiones y
Jubilaciones y Fondos de Inversion del Extranjero) maintained by the Secretaria
de Hacienda y Credito Publico of Mexico.
"Replacement Lender" shall have the meaning specified in Section 2.08(f).
"Required Lenders" shall mean at any time Lenders owed (or holding in the
aggregate) at least 66% of the aggregate principal amount of the Advances
outstanding at such time or, if no such principal amount is outstanding at such
time, Lenders holding at least 66% of the aggregate of the Commitments.
"Responsible Officer" shall mean, with respect to any Credit Party, the
chief executive officer, the president, the chief accounting officer or the
treasurer (or the equivalent of any of the foregoing) of such Credit Party or
any other officer of such Credit Party authorized to act on behalf of such
Credit Party in the certificate delivered pursuant to Section 3.01(d).
"Reuters Screen LIBO Page" shall mean the display of London interbank
offered rates (commonly known as LIBOR) of major banks for Eurodollar deposits
designated as page "LIBO" on the Reuters Monitor Money Rates Service (or such
other page as may replace the LIBO page for the purpose of displaying such
London interbank offered rates for Eurodollar deposits).
"Subordinated Creditor" shall mean Grupo Industrial Emprex, S.A. de C.V., a
sociedad anonima de capital variable organized and existing under the laws of
Mexico.
"Subordination Agreement" shall have the meaning provided in Section
3.01(g).
"Subsidiary" of any Person shall mean any corporation, partnership, joint
venture, trust or estate of which (or in which), directly or indirectly, more
than 50% of (a) the issued and outstanding capital stock having ordinary voting
power to elect a majority of the board of directors of such corporation
(irrespective of whether at the time capital stock of any other class or classes
of such corporation shall or might have voting power upon the occurrence of any
contingency), (b) the interest in the capital or profits of such partnership or
joint venture, or (c) the beneficial interest in such trust or estate is at the
time directly or indirectly owned or controlled by such Person, by such Person
and one or more of its other Subsidiaries or by one or more of such Person's
other Subsidiaries. References to a Subsidiary, unless otherwise specifically
stated, or the context otherwise requires, shall be reference to a Subsidiary of
the Borrower.
"Successor Company" shall have the meaning specified in Section 5.02(b).
"Syndication Agent" shall have the meaning specified in the preamble to
this Agreement.
"Taxes" shall mean any and all (a) present or future taxes, duties, levies,
imposts, deductions, charges or withholdings with respect to any payment made by
the Borrower hereunder or under the Notes or under any other Loan Document, and
any interest or penalties in respect thereof, imposed by Mexico or any other
jurisdiction from which any such payment is made, or any political subdivision
or taxing authority thereof or therein or any federation or association of or
with which any of the foregoing may be a member or associated, excluding in the
15
case of each Lender, the Lead Arranger and the Administrative Agent, any taxes
imposed on or measured by the net income of such Person pursuant to the laws of
the jurisdiction (or any political subdivision or taxing or banking authority
thereof or therein) in which the principal office or Lending Office of such
Person is located, and (b) present or future stamp or documentary taxes and any
other excise or property taxes, or similar charges or levies, which arise from
any payment made pursuant to this Agreement or under the Notes or from the
execution or delivery of, or otherwise with respect to, any Loan Document.
"Termination Date" shall mean the earliest of (a) the Maturity Date, (b)
the termination in whole of the Commitments pursuant to Section 6.01, or (c) if
no Borrowing has then occurred, the Commitment Expiration Date.
"Total Assets" shall mean, as to the Borrower, all of the combined assets
of the Borrower and its Consolidated Subsidiaries.
"United States" and "U.S." each shall mean United States of America.
"Voting Stock" shall mean capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are ordinarily,
in the absence of contingencies, entitled to vote for the election of directors
(or persons performing similar functions) of such Person, even though the right
to vote has been suspended by the happening of such a contingency.
SECTION 1.02 Accounting Terms. All accounting terms not specifically
defined herein shall be construed in accordance with GAAP consistently applied,
except as otherwise stated herein. Calculations in connection with definitions,
covenants and other provisions of this Agreement shall utilize accounting
principles and policies in conformity with those used to prepare the financial
statements referred to in Section 4.05.
SECTION 1.03 Computation of Time Periods. In this Agreement, in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" mean
"to but excluding."
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01 The Advances. Each Lender severally agrees, on the terms and
conditions hereinafter set forth, on any Business Day occurring on or prior to
the Commitment Expiration Date, to make a single advance (an "Advance") to the
Borrower, which Advance shall not exceed for any Lender, in aggregate principal
amount, the amount set forth opposite such Lender's name on Annex I hereto under
the caption "Commitment" or, if such Lender has entered into one or more
Assignments and Acceptances, the amount set forth in the Register maintained by
the Administrative Agent pursuant to Section 9.07(c) (such amount being such
Lender's "Commitment"). Amounts borrowed under this Section 2.01 and repaid or
prepaid may not be reborrowed.
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SECTION 2.02 Making the Advances.
(a) The Borrowing shall be made on notice given by the Borrower to the
Administrative Agent not later than 11:00 A.M. (New York City time) on the third
Business Day prior to the proposed Borrowing Date (the "Notice of Borrowing").
Immediately following receipt of the Notice of Borrowing, the Administrative
Agent shall give to each Lender notice thereof by telex or facsimile
transmission (in the case of EDC, such notice will be sent by facsimile
transmission). The Notice of Borrowing shall be sent by the Borrower requesting
the Advance by telex or facsimile transmission, confirmed immediately in
writing, in substantially the form of Exhibit B hereto, specifying therein (i)
the requested Borrowing Date, (ii) the requested aggregate principal amount of
such Borrowing, (iii) the Interest Period therefor, and (iv) the payment
instructions for such Borrowing. The Administrative Agent shall promptly notify
each Lender of the applicable interest rate under Section 2.05. Each Lender
shall, before 11:00 A.M. (New York City time) on the Borrowing Date, make
available for the account of its Lending Office to the Administrative Agent at
the Administrative Agent's Account, in same day funds, such Lender's ratable
portion of such Borrowing. After the Administrative Agent's receipt of such
funds and upon fulfillment of the applicable conditions set forth in Article
III, the Administrative Agent will make such funds available to the Borrower
requesting the Advance by crediting the account of the Borrower, in immediately
available funds.
(b) The Notice of Borrowing shall be irrevocable and binding on the
Borrower. The Borrower shall indemnify each Lender against any loss, cost or
expense incurred by such Lender as a result of any failure of the Borrower to
fulfill on or before the date specified in such Notice of Borrowing for such
Borrowing the applicable conditions set forth in Article III required to be
fulfilled by the Borrower (which are not otherwise waived), including, without
limitation, any loss, cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Lender to fund the
Advance to be made by such Lender as part of the Borrowing when such Advance, as
a result of such failure, is not made on such date but excluding, in any such
case, loss of anticipated profits.
(c) Unless the Administrative Agent shall have received notice from a
Lender prior to a Borrowing Date that such Lender will not make available to the
Administrative Agent such Lender's ratable portion of such Borrowing, the
Administrative Agent may assume that such Lender has made such portion available
to the Administrative Agent on such Borrowing Date in accordance with clause (a)
of this Section 2.02 and the Administrative Agent may, in reliance upon such
assumption, make available to the Borrower requesting the Borrowing on such date
a corresponding amount. If and to the extent that such Lender shall not have so
made such ratable portion available to the Administrative Agent, such Lender and
the Borrower severally agree to repay to the Administrative Agent forthwith on
demand such corresponding amount together with interest thereon, for each day
from the date such amount is made available to the Borrower until the date such
amount is repaid to the Administrative Agent, at (i) in the case of the
Borrower, the interest rate applicable at such time under Section 2.05 to such
Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If such
Lender shall repay to the Administrative Agent such corresponding amount, such
amount so repaid shall constitute such Lender's Advance as part of the Borrowing
for purposes of this Agreement.
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(d) The failure of any Lender to make an Advance to be made by it as part
of a Borrowing shall not relieve any other Lender of its obligation, if any,
hereunder to make its Advance on the Borrowing Date with respect to such
Borrowing, but no Lender shall be responsible for the failure of any other
Lender to make an Advance to be made by such other Lender on such Borrowing
Date.
SECTION 2.03 Notes.
(a) Each Lender will maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of the Borrower to such Lender
as a result of the Advances of such Lender, including the amounts of principal,
interest and other amounts payable and paid to such Lender from time to time
under this Agreement and the Notes. The entries made by each Lender pursuant to
the foregoing sentence shall constitute prima facie evidence of the existence
and amounts of the Advances and other Obligations therein recorded; provided,
however, that the failure of any Lender to maintain such account or accounts, or
any error therein, shall not in any manner affect the obligations of the
Borrower to repay or pay the Advances made by such Lender, accrued interest
thereon and the other Obligations of the Borrower to such Lender hereunder in
accordance with the terms of this Agreement and the other Loan Documents.
(b) The Borrower's obligation to pay the principal of, and interest on, the
Advances made by each Lender shall be evidenced by a promissory note duly
executed and delivered by the Borrower, with blanks appropriately completed in
conformity herewith, substantially in the form of Exhibit A hereto (each, a
"Note," and, collectively, the "Notes"). The Note issued to each Lender on the
Borrowing Date shall (1) be executed by the Borrower and "avalado" by each of
the Guarantors, (2) qualify as a xxxxxx under Mexican law, (3) be payable to the
order of such Lender and be dated as of the Borrowing Date, (4) be in a stated
principal amount equal to the Advance of such Lender made on such date, (5)
provide for repayment of principal as provided in Section 2.04(c), and (6) bear
interest as provided in Section 2.05. Each Lender agrees that, unless the
principal of, or interest on, the Advances shall have become due and payable
(whether by acceleration or otherwise) pursuant to this Agreement, it shall not
(i) make demand for payment with respect to its Note prior to its stated
maturity or (ii) assign, convey, negotiate or trade such Note except as
permitted pursuant to Section 9.07.
(c) Upon receipt by any Lender of a Note issued in replacement of, or in
exchange for, any other Note (the "Original Note") pursuant to Section 9.07(d),
such Lender shall return the Original Note to the Borrower marked "canceled."
SECTION 2.04 Prepayments; Payments.
(a) Voluntary Prepayments. The Borrower may, upon at least five Business
Days' notice to the Administrative Agent stating the proposed date and aggregate
principal amount of the prepayment, and, if such notice is given, the Borrower
shall prepay the outstanding principal amount of the Advances in whole or in
part, together with accrued interest to the date of such prepayment on the
principal amount prepaid; provided, however, that each partial prepayment shall
be in a minimum aggregate principal amount of U.S.$5,000,000 or an integral
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multiple of U.S.$250,000 in excess thereof and each prepayment shall be applied
pro rata among the Advances to the repayment of the principal thereof in the
inverse order of maturity. Prepayments of Advances will be without premium or
penalty; provided that prepayments not made on the last day of the Interest
Period shall be subject to Section 2.12. Any amount prepaid under this Section
2.04(a) may not be reborrowed.
(b) Mandatory Prepayments.
(i) On the last day of the Interest Period ending at least 10 Business Days
after the Borrower or any of the Non-Guarantor Subsidiaries receives cash
proceeds from any Asset Sale or series of related Asset Sales, the Borrower
shall prepay the outstanding principal of the Advances in an amount equal to
33.33% of the Net Sale Proceeds thereof.
(ii) In addition to any other mandatory prepayments pursuant to this
Section 2.04(b), if at any time (including the Borrowing Date) the Borrower
makes any payment (voluntary or mandatory) of any Inter-company Debt such that,
after giving effect to such payment, the aggregate principal amount of the
Inter-company Debt is less than U.S.$80,000,000, then on the last day of the
Interest Period ending at least 10 Business Days after the Borrower shall make a
mandatory prepayment of the Advances and the other Obligations in an amount
determined as follows: (A) if, immediately prior to the time of any such payment
of the Inter-company Debt, the aggregate outstanding principal amount of the
Inter-company Debt exceeds U.S.$80,000,000, an amount equal to U.S.$80,000,000
less the principal amount of the Inter-company Debt outstanding after giving
effect to such payment; and (B) if, immediately prior to the time of any such
payment of the Inter-company Debt, the aggregate outstanding principal amount of
the Inter-company Debt is less than U.S.$80,000,000, an amount equal to the
aggregate outstanding principal amount of the Inter-company Debt at the time of
such payment less the principal amount of the Inter-company Debt outstanding
after giving effect to such payment. For purposes of determining the Dollar
amount of the Inter-company Debt prepaid by the Borrower at any given moment,
the amount prepaid shall be converted into Dollars using the Exchange Rate.
(iii) Any prepayment shall be applied pro rata among the Advances to the
repayment of the principal thereof in the inverse order of maturity. Any amount
prepaid under this Section 2.04(b) may not be reborrowed.
(c) Payments. The Borrower shall repay to the Administrative Agent for the
ratable account of the Lenders, and there shall become due and payable on each
of the dates listed below, an aggregate principal amount of Advances equal to
the percentage set forth opposite such date of the initial aggregate principal
amount of Advances made on the Borrowing Date:
Amount of
Repayment Date Scheduled Repayment
The date which is 12 months
following the Borrowing Date: 10%
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The date which is 18 months
following the Borrowing Date: 20%
The date which is 24 months
following the Borrowing Date: 20%
The date which is 30 months
following the Borrowing Date: 25%
The date which is 36 months
following the Borrowing Date: 25%
Without limitation of the foregoing, any principal amount of the Advances
then outstanding shall be repaid on the Maturity Date.
SECTION 2.05 Interest.
(a) Scheduled Interest. The Borrower shall pay interest on the unpaid
principal amount of each Advance owing to each Lender from the date of such
Advance until such principal amount shall be paid in full, at a rate per annum
which shall, during each Interest Period applicable thereto, be equal to the sum
of (i) the Eurodollar Rate for such Interest Period plus (ii) the Applicable
Margin, payable in arrears on the last day of such Interest Period (or, in the
case of an Interest Period in excess of three months, on the date occurring at
three month intervals after the first day of such Interest Period), and on the
date of any payment or prepayment of such principal amount and on the
Termination Date.
(b) Default Interest. Upon the occurrence and during the continuance of any
Event of Default and provided that the Notes, all interest thereon and all other
amounts payable under this Agreement and the other Loan Documents have been
declared due and payable pursuant to Section 6.01, the Borrower shall pay
interest on (i) the unpaid principal amount of each Advance owing to each
Lender, and (ii) to the fullest extent permitted by law, the unpaid amount of
all interest, fees and other amounts payable under the Loan Documents that is
not paid when due, in each case, payable on demand, from the date such amounts
shall be due until such amounts shall be paid in full, at a rate per annum equal
at all times to 2.0% per annum above the rate per annum required to be paid on
Advances outstanding at the time pursuant to clause (a) above.
SECTION 2.06 Continuations, Interest Rate Determination.
(a) At the time the Borrower gives the Notice of Borrowing in respect of
the making of any Advance (in the case of the initial Interest Period applicable
thereto) or on the third Business Day prior to the expiration of an Interest
Period applicable to such Advance (in the case of any subsequent Interest
Period), the Borrower shall have the right to elect, by giving the
Administrative Agent notice thereof, the Interest Period applicable to such
Advance.
(b) Failing receipt by the Administrative Agent of any notice in accordance
with clause (a) above, the Borrower shall be conclusively deemed to have elected
an Interest Period of three months.
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(c) The Administrative Agent shall give prompt notice to the Borrower and
the Lenders of the applicable interest rate determined by the Administrative
Agent for purposes of Section 2.05(a) or (b).
SECTION 2.07 Fees. The Borrower agrees to pay to the Administrative Agent
and the Lead Arranger such fees as have been agreed to in writing (such writing,
the "Fee Letter") between the Borrower, the Administrative Agent and the Lead
Arranger.
SECTION 2.08 Increased Costs, Etc.
(a) If, due to either (i) the introduction of or any change in or in the
official interpretation of any law or regulation, in each case that becomes
effective or is made after the date hereof, or (ii) the compliance with any
guideline or request from any central bank or other Governmental Authority that
becomes effective or is made after the date of this Agreement (whether or not
having the force of law), there shall be any increase in the cost to any Lender
of agreeing to make or of making, funding or maintaining Advances (excluding,
for purposes of this Section 2.08, any such increased costs resulting from (A)
Taxes (as to which Section 2.10 shall govern) and (B) changes in the basis of
taxation of overall net income or overall gross income by the United States or
by the foreign jurisdiction or state under the laws of which such Lender is
organized or has its Lending Office or any political subdivision thereof), then
the Borrower shall from time to time, within 10 Business Days after written
demand by such Lender setting forth in reasonable detail the basis for
calculating such increased cost owed to such Lender (with a copy of such demand
to the Administrative Agent), pay to the Administrative Agent for the account of
such Lender additional amounts sufficient to compensate such Lender for such
increased cost; provided, that the Borrower shall not be liable in respect of
any such increased cost if such Lender became aware and failed to endeavor to
notify the Borrower, within 30 days of the date such Lender became aware of such
increased cost, in accordance with the preceding sentence if and to the extent
that such notice would have avoided or lessened payment by the Borrower
hereunder relating to such period. A certificate as to the amount of such
increased cost, submitted to the Borrower by such Lender, shall constitute prima
facie evidence of any such amounts payable pursuant to this clause, absent
manifest error.
(b) If any Lender determines reasonably and in good faith that compliance
with any law or regulation or any guideline or request from any central bank or
other Governmental Authority (whether or not having the force of law) that
becomes effective or is made after the date hereof affects or would affect the
amount of capital required or expected to be maintained by such Lender or any
corporation controlling such Lender and that the amount of such capital is
increased by or based upon the existence of such Lender's commitment to lend
hereunder, then, within 10 Business Days after written demand by such Lender or
such corporation (with a copy of such demand to the Administrative Agent), the
Borrower shall pay to the Administrative Agent for the account of such Lender,
from time to time as specified by such Lender, additional amounts sufficient to
compensate such Lender in the light of such circumstances, to the extent that
such Lender reasonably determines such increase in capital to be allocable to
the existence of such Lender's commitment to lend hereunder. A certificate
setting forth in reasonable detail the basis of calculation of such additional
amounts submitted to the Borrower by such Lender shall constitute prima facie
evidence of any such amounts payable pursuant to this clause, absent manifest
error.
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(c) If, with respect to any Advance, the Required Lenders notify the
Administrative Agent that the Eurodollar Rate for any Interest Period for such
Advance will not adequately reflect the cost to such Lenders of making, funding
or maintaining their Advance for such Interest Period, the Administrative Agent
shall forthwith so notify the Borrower and the Lenders, whereupon (i) each such
Advance will automatically, on the last day of the then-existing Interest Period
therefor, bear interest at the Federal Funds Rate in effect from time to time
during each succeeding Interest Period, plus the Applicable Margin, and (ii) the
obligation of the Lenders to make Advances shall be suspended until the
Administrative Agent shall notify the Borrower that such Lenders have determined
that the circumstances causing such suspension no longer exist.
(d) Notwithstanding any other provision of this Agreement, if the
introduction of or any change in or in the interpretation of any law or
regulation shall make it unlawful, or any central bank or other Governmental
Authority shall assert that it is unlawful, for any Lender or its Lending Office
to perform its obligations hereunder to make Eurodollar Advances or to continue
to fund or maintain the Eurodollar Advances hereunder, then, on notice thereof
and demand therefor by such Lender to the Borrower through the Administrative
Agent, (i) each Eurodollar Advance of such Lender will automatically, upon such
demand, at the end of the current Interest Period therefor (or sooner if
required by law), bear interest at the Federal Funds Rate in effect from time to
time during each succeeding Interest Period, plus the Applicable Margin, and
(ii) the obligation of such Lender to make Eurodollar Advances shall be
suspended until the Administrative Agent shall notify the Borrower that such
Lender has determined that the circumstances causing such suspension no longer
exist. The Borrower may elect to terminate such Lender as a party to this
Agreement in accordance with Section 2.08(f).
(e) Without affecting any of its rights under the Loan Documents, prior to
making any claim for increased costs under this Section 2.08 or for additional
amounts under Section 2.10, each Lender agrees to use reasonable efforts
(consistent with its internal policy and legal and regulatory restrictions) to
designate a different Lending Office if the making of such a designation would,
(i) in the case of clauses (a) and (b) above or pursuant to Section 2.10, avoid
the need for, or reduce the amount of, additional amounts to be paid under
Section 2.10 or the relevant increased costs or (ii) in the case of clause (d)
above, allow such Lender to continue to perform its obligations to make Advances
or to continue to fund or maintain Advances and would not, in either case, in
the sole judgment of such Lender, be otherwise disadvantageous to such Lender.
(f) If the Borrower becomes obligated to pay additional amounts to any
Lender pursuant to this Section 2.08 or Section 2.10 of this Agreement as a
result of any condition described in such Sections which is not generally
applicable to all Lenders, then, unless the Lender to which such conditions
apply has theretofore taken steps to remove or cure, and has removed or cured,
the conditions creating the cause for such obligation to pay such additional
amounts, the Borrower may, so long as no Default shall have occurred and be
continuing, designate another lender which is willing to purchase all rights and
obligations of such Lender and which is acceptable to the Administrative Agent
(such lender being herein called a "Replacement Lender") to purchase for cash
all of the rights and obligations of such Lender under this Agreement and assume
all of such Lender's rights and obligations hereunder, without recourse to or
warranty (other than title) by, or expense to, such Lender for a purchase price
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equal to the outstanding principal amount of the Advances payable to such Lender
plus any accrued but unpaid interest on such Advances, expense reimbursements,
fees (including, without limitation, the assignment fee under Section 9.07(a))
and indemnities and other amounts in respect of that Lender's Commitment and
Advances hereunder. Such Lender shall consummate such sale in accordance with
the assignment provisions of Section 9.07 as promptly as reasonably practicable.
(g) If the Borrower becomes obligated to pay additional amounts to any
Lender pursuant to this Section 2.08 or Section 2.10 of this Agreement as a
result of any condition described in such Sections, the Borrower shall be
entitled to prepay the Advances of any Lender affected by such conditions by
providing five Business Days prior written notice to the Administrative Agent of
such prepayment (which prepayment shall occur not more than 20 days after the
date of such notice); provided, that, if more than one Lender is affected at any
time, then the Advances of such Lenders must be treated the same pursuant to
this Section 2.08. On the date of any such prepayment, the Borrower shall pay
the principal amount of the Advance to be prepaid, together with interest
accrued thereon to the date of prepayment, all other amounts due hereunder and,
subject to breakage costs pursuant to Section 2.12. If the Borrower prepays the
Advances of any Lender in accordance with this Section 2.08, the Commitment of
the Lender so prepaid shall terminate.
SECTION 2.09 Payments and Computations.
(a) The Borrower shall make each payment hereunder and under the Notes not
later than 11:00 A.M. (New York City time) on the day when due in Dollars to the
Administrative Agent at the Administrative Agent's Account in same day funds.
The Administrative Agent will promptly thereafter cause to be distributed like
funds relating to the payment of principal, interest or fees ratably (other than
amounts payable pursuant to Section 2.08(a), 2.08(b), 2.10 or 2.12) to the
Lenders for the account of their Lending Offices, and like funds relating to the
payment of any other amount payable to any Lender to such Lender for the account
of its Lending Office, in each case to be applied in accordance with the terms
of this Agreement. Upon its acceptance of an Assignment and Acceptance and
recording of the information contained therein in the Register pursuant to
Section 9.07(d), from and after the effective date of such Assignment and
Acceptance, the Administrative Agent shall make all payments hereunder and under
the Notes in respect of the interest assigned thereby to the Lender assignee
thereunder, and the parties to such Assignment and Acceptance shall make all
appropriate adjustments in such payments for periods prior to such effective
date directly between themselves.
(b) If the Administrative Agent receives funds for application to the
Obligations under the Loan Documents under circumstances for which the Loan
Documents do not specify the Advances to which, or the manner in which, such
funds are to be applied, the Administrative Agent shall distribute such funds to
each Lender ratably in accordance with such Lender's proportionate shares of the
principal amount of all outstanding Advances, in repayment or prepayment of such
of the outstanding Advances or other Obligations owed to such Lender as the
Administrative Agent shall direct.
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(c) All computations of interest based on the Eurodollar Rate or the
Federal Funds Rate shall be made by the Administrative Agent on the basis of a
year of 360 days, in each case for the actual number of days (including the
first day but excluding the last day) occurring in the period for which such
interest or fees are payable. Each determination by the Administrative Agent of
an interest rate or fee hereunder shall be conclusive and binding for all
purposes, absent manifest error.
(d) Whenever any payment hereunder or under the Notes shall be stated to be
due on a day other than a Business Day, such payment shall be made on the next
succeeding Business Day, and such extension of time shall, in such case, be
included in the computation of payment of interest; provided, however, that, if
such extension would cause payment of interest on or principal of Advances to be
made in the next following calendar month, such payment shall be made on the
next preceding Business Day.
(e) Unless the Administrative Agent shall have received notice from the
Borrower prior to the date on which any payment is due to any Lender hereunder
that the Borrower will not make such payment in full, the Administrative Agent
may assume that the Borrower has made such payment in full to the Administrative
Agent on such date and the Administrative Agent may, in reliance upon such
assumption, cause to be distributed to each such Lender on such due date an
amount equal to the amount then due to such Lender. If and to the extent the
Borrower shall not have so made such payment in full to the Administrative
Agent, each such Lender shall repay to the Administrative Agent forthwith on
demand such amount distributed to such Lender together with interest thereon,
for each day from the date such amount is distributed to such Lender until the
date such Lender repays such amount to the Administrative Agent, at the Federal
Funds Rate.
(f) The Borrower shall make all payments hereunder and under the Notes
regardless of any defense or counterclaim, including, without limitation, any
defense or counterclaim based on any law, rule or policy which is now or
hereafter promulgated by any Governmental Authority or regulatory body and which
may adversely affect the Borrower's obligation to make, or the right of the
holder of any Note to receive, such payments.
SECTION 2.10 Taxes.
(a) Any and all payments by the Borrower to or for the account of any
Lender, the Lead Arranger or the Administrative Agent hereunder, under any Note
or under any other Loan Document, of any nature whatsoever, shall be made, in
accordance with Section 2.09, without withholding or deduction for any Taxes;
provided that, if the Borrower shall be required by law to withhold or deduct
any Taxes from any such payments, (i) the sum payable shall be increased as
necessary so that after making all required withholdings or deductions
(including withholdings or deductions applicable to additional sums payable
under this Section 2.10) such Lender, the Lead Arranger or the Administrative
Agent, as the case may be, receives an amount equal to the sum it would have
received had no such withholdings or deductions been made, (ii) the Borrower
shall make such withholdings or deductions, (iii) the Borrower shall pay the
full amount withheld or deducted to the relevant taxation authority or other
authority in accordance with applicable law and (iv) the Borrower shall furnish
to the Administrative Agent the original or a certified copy of a receipt
evidencing payment within 60 days after payment thereof.
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(b) The Borrower agrees to indemnify each Lender, the Lead Arranger and the
Administrative Agent for the full amount of Taxes (including any Taxes imposed
on amounts payable under this Section 2.10) paid by such Lender, the Lead
Arranger or the Administrative Agent (as the case may be) and any interest or
penalties in respect thereof. This indemnification shall be paid within 30 days
after such Lender, the Lead Arranger or the Administrative Agent (as the case
may be) makes written demand therefor.
(c) Each Lender, other than EDC, represents and warrants to the Borrower
that on and as of the date hereof such Lender either (i) is registered as a
Registered Bank, and is a resident (or its principal office is a resident, if
such Lender's Lending Office is a branch or agency of such Lender) for tax
purposes in a jurisdiction with which Mexico has in effect a treaty for the
avoidance of double taxation or (ii) is a Mexican Bank. The Borrower shall not
be required to pay additional amounts or indemnify any Lender under clause (a)
or (b) above for any Taxes to the extent that such Taxes would not have been
imposed but for the untruth on the date hereof of the foregoing representation.
(d) Each Lender (other than EDC), the Lead Arranger and the Administrative
Agent agrees to use reasonable efforts (consistent with legal and regulatory
restrictions and subject to overall policy considerations of such Lender) to
comply with any certification, identification, information, documentation or
other reporting requirement as is required by Mexico or applicable in Mexico of
which it becomes aware in order to obtain an exemption from, or reduced rate of,
deduction, payment or withholding of Taxes to which such Lender, the Lead
Arranger or the Administrative Agent is entitled pursuant to an applicable tax
treaty or the laws of Mexico. Upon the written request of the Borrower, each
Lender (other than EDC), the Lead Arranger and the Administrative Agent will
promptly provide to the Borrower such form, certification or similar
documentation (each duly completed, accurate and signed) as may currently or in
the future be applicable in Mexico or any other jurisdiction or comply with
other reasonable requirements as may in the future be applicable in Mexico or
any other jurisdiction, in order to obtain an exemption from, or reduced rate
of, deduction, payment or withholding of Taxes to which such Lender, the Lead
Arranger or the Administrative Agent is entitled pursuant to an applicable tax
treaty or the laws of the relevant jurisdiction; provided, however, that nothing
in this Section 2.10(d) shall require a Lender to disclose any confidential
information (including, without limitation, its tax returns or its
calculations). The Borrower shall not be required to pay additional amounts to
or indemnify any Lender, the Lead Arranger or the Administrative Agent under
clause (a) or (b) for any Taxes to the extent such Taxes would not be imposed
solely as the result of the failure by such Lender, the Lead Arranger or the
Administrative Agent, as the case may be, to comply with the provisions of this
clause (d) within a reasonable period of time following its actual knowledge of
any such requirement.
(e) If the Borrower pays any additional amount to or indemnifies any
Lender, the Lead Arranger or the Administrative Agent under this Section 2.10
and such Lender, the Lead Arranger or the Administrative Agent, as the case may
be, receives a refund from the applicable jurisdiction of Taxes for which the
Borrower so paid to or indemnified such Person, such Person shall pay to the
Borrower, within 60 days after receipt of such refund, the amount of such
refund. Any Lender, the Lead Arranger or the Administrative Agent shall claim a
refund of any amounts for which it was so indemnified if requested by the
Borrower in writing, unless such Lender, the Lead Arranger or the Administrative
Agent, as the case may be, reasonably determines, in good faith, that the making
of such claim would be disadvantageous to it. If the Borrower pays any
additional amount to or indemnifies any Lender, the Lead Arranger or the
Administrative Agent under this Section 2.10 and such Lender, the Lead Arranger
or the Administrative Agent, as the case may be, is able to utilize a foreign
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tax credit against its tax liability in or with respect to the amounts so paid
by the Borrower, such Person shall pay to the Borrower, within 60 days after
receipt of such credit, an amount that such Person shall, in its reasonable
discretion, determine is equal to the net benefit, after tax, which was obtained
by such Person in such year as a consequence of such foreign tax credit;
provided, however, that (i) such payment shall not be made to the extent it
would leave such Lender, the Lead Arranger or the Administrative Agent, after
such payment, in a worse position than that in which it would have been if the
Borrower had not been required to pay additional amounts; and (ii) any Lender,
the Lead Arranger or the Administrative Agent may determine in its reasonable
discretion consistent with the policies of such Lender, the Lead Arranger or the
Administrative Agent whether to seek a foreign tax credit. Notwithstanding the
foregoing, (i) if any Lender, the Lead Arranger or the Administrative Agent is
required to repay the applicable jurisdiction all or part of a refund with
respect to which it has made a payment to the Borrower pursuant to this Section
2.10 or determines that it was not entitled to the foreign tax credit claimed to
the full extent of any payment made by it pursuant to this paragraph (e), the
Borrower shall, within 30 days upon written demand of such Lender, the Lead
Arranger or the Administrative Agent, repay to such Lender, the Lead Arranger or
the Administrative Agent the amount of such overpayment, and (ii) nothing in
this Section 2.10 shall require a Lender, the Lead Arranger or the
Administrative Agent to disclose any confidential information to the Borrower
(including, without limitation, its tax returns or calculations).
(f) EDC represents and warrants to the Borrower that, as of the date
hereof, the head office of EDC is in Ottawa, Canada, formerly named "Export
Development Corporation" as referred to in Article 11 of the Convention Between
the Government of Canada and the Government of the United Mexican States for the
Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect
to Taxes on Income. If EDC claims any additional amounts payable pursuant to
this Section 2.10, which are in excess of the tax imposed at the lowest rate of
withholding that would be otherwise applicable to the Registered Banks (other
than the Mexican Banks), then the Borrower may, at its option (without prejudice
to Section 2.10(c), (i) designate an Eligible Assignee (which shall be an entity
reasonably satisfactory to the Administrative Agent) to replace EDC in
accordance with Section 9.07, which Eligible Assignee shall pay or cause to be
paid to EDC the outstanding principal amount of EDC's aggregate Advances plus
accrued interest thereon plus other Obligations of the Borrower to EDC in
accordance with the terms of this Agreement and the other Loan Documents or (ii)
subject to giving five Business Days' notice to the Administrative Agent,
without penalty or premium but subject to Section 2.12, prepay the principal
amount of EDC's Advance, together with accrued interest thereon and all other
amounts payable to EDC hereunder; and in the case of designation of an Eligible
Assignee, EDC and such Eligible Assignee shall deliver to the Administrative
Agent and the Borrower an Assignment and Acceptance in substantially the form of
Exhibit F hereto whereby such Eligible Assignee shall agree to be bound by the
terms hereof, provided however, that the failure of EDC to execute or deliver
such Assignment and Acceptance shall not render such assignment invalid and such
assignment shall be deemed effective as of the date on which such Eligible
Assignee pays or causes to be paid to EDC the amounts specified in clause (i)
above.
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SECTION 211 Sharing of Payments, Etc. If any Lender shall obtain any
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) on account of the Advance owing to it (other than
pursuant to Section 2.08(a), 2.08(b), 2.10 or 2.12) in excess of its ratable
share of payments on account of the Advances obtained by all the Lenders, such
Lender shall forthwith purchase from the other Lenders such participations in
the Advances owing to them as shall be necessary to cause such purchasing Lender
to share the excess payment ratably with each of them; provided, however, that
if all or any portion of such excess payment is thereafter recovered from such
purchasing Lender, the purchase from such Lender shall be rescinded and such
Lender shall repay to the purchasing Lender the purchase price to the extent of
such Lender's ratable share of such recovery together with an amount equal to
such Lender's ratable share (according to the proportion of (i) the amount of
such Lender's required repayment to (ii) the total amount so recovered from the
purchasing Lender) of any interest or other amount paid or payable by the
purchasing Lender in respect of the total amount so recovered. The Borrower
agrees that any Lender so purchasing a participation from another Lender
pursuant to this Section may, to the fullest extent permitted by law, exercise
all its rights of payment (including the right of set-off) with respect to such
participation as fully as if such Lender were the direct creditor of the
Borrower in the amount of such participation.
SECTION 2.12 Funding Losses. In the event any Lender shall incur any loss,
cost, or expense (including any loss, cost, or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by such Lender
to make, continue, or maintain any portion of the principal amount of any
Advance), but excluding any loss of any margin above the Eurodollar Rate, as a
result of:
(a) any repayment or prepayment of the principal amount of any Advances on
a date other than the scheduled last day of the Interest Period applicable
thereto;
(b) any Advances not being made in accordance with the Notice of Borrowing
therefor; or
(c) any Advances not being continued for the Interest Period specified in
accordance with the relevant notice therefor;
then, upon the written notice of such Lender to the Borrower (with a copy
to the Administrative Agent), the Borrower shall, within five Business Days of
its receipt thereof, pay directly to such Lender (for its own account) such
amount as will reimburse such Lender for the loss, cost or expense sustained by
such Lender attributable to such event. Such written notice (which shall include
all calculations in reasonable detail) shall, in the absence of manifest error,
be conclusive and binding on the Borrower.
SECTION 2.13 Use of Proceeds. The proceeds of the Advances shall be
available (and the Borrower agrees that it shall use such proceeds) to refinance
existing Debt of the Borrower and to pay transaction fees and expenses incurred
in connection with this Agreement.
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ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01 Conditions Precedent to the Borrowing. The obligation of each
Lender to make its Advance on the Borrowing Date is subject to the effectiveness
of this Agreement pursuant to Section 9.06, and to satisfaction or waiver of the
conditions precedent set forth below (each document received by the
Administrative Agent and described below shall be dated the Borrowing Date
(unless otherwise specified), and in form and substance reasonably satisfactory
to the Lenders (unless otherwise specified)):
(a) The Administrative Agent shall have received counterparts of this
Agreement executed by the Borrower, the Guarantors, the Administrative Agent,
the Lead Arranger, the Arrangers, the Documentation Agent, the Syndication Agent
and the Lenders.
(b) The Administrative Agent shall have received a Notice of Borrowing with
respect to the Advances to be made on such Borrowing Date meeting the
requirements of Section 2.02(a).
(c) The Administrative Agent shall have received the duly executed Notes
for the account of each Lender meeting the requirements of Section 2.03(b).
(d) The Administrative Agent shall have received (i) a certificate of each
of the Credit Parties, substantially in the form of Exhibit C hereto, signed by
a Responsible Officer of such Credit Party, dated the Borrowing Date certifying
that (A) the representations and warranties of such Credit Party set forth in
Article IV are true and correct in all material respects on and as of the
Borrowing Date, as though made on and as of the Borrowing Date, and (B) no
Default or Event of Default exists or would result from the disbursement of the
Advances, and (ii) a certificate of the Secretary or any Assistant Secretary of
such Credit Party, substantially in the form of Exhibit D hereto, together with
certified copies of (A) the resolutions of the Board of Directors of such Credit
Party approving such Credit Party's execution, delivery, and performance of the
Loan Documents and the transactions contemplated thereby, (B) all documents
evidencing other necessary corporate action and consents or approvals of any
Governmental Authority, if any, with respect to the Loan Documents and the
transactions contemplated thereby, (C) the constitutional documents of such
Credit Party, and (D) the powers of attorney granted by each Credit Party in
favor of their respective representative(s) for the execution and delivery of
the Loan Documents as provided herein.
(e) The Administrative Agent shall have received (i) an opinion of Cleary,
Gottlieb, Xxxxx & Xxxxxxxx, special New York counsel for the Credit Parties,
substantially in the form of Exhibit E-1 hereto and as to such other matters as
any Lender through the Administrative Agent may reasonably request and (ii) an
opinion of White & Case LLP, special New York counsel for the Lenders and the
Administrative Agent, substantially in the form of Exhibit E-3.
(f) The Administrative Agent shall have received an opinion of Xxxxx
Xxxxxxxx Vessi, Mexican counsel to the Credit Parties, substantially in the form
of Exhibit E-2 hereto and as to such other matters as any Lender through the
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Administrative Agent may reasonably request.
(g) Each of the Borrower and the Subordinated Creditor shall have executed
and delivered to the Administrative Agent the Subordination Agreement
substantially in the form of Exhibit G (as modified, supplemented or amended
from time to time, the "Subordination Agreement").
(h) The Administrative Agent shall have received (i) a letter in form and
substance satisfactory to the Administrative Agent confirming the appointment of
CT Corporation System as Process Agent for each of the Credit Parties, and (ii)
a duly executed and notarized power of attorney in the form attached hereto as
Exhibit H.
(i) As of the Borrowing Date (and after giving effect thereto) (i) there
shall exist no Default or Event of Default and (ii) all representations and
warranties contained herein and in the other Loan Documents shall be true and
correct in all material respects.
(j) The Borrower shall have paid all accrued fees and invoiced expenses of
the Administrative Agent and the Lead Arranger (including any such fees as shall
have been agreed to pursuant to the Fee Letter) and reimbursed the
Administrative Agent and the Lead Arranger for all reasonable out-of-pocket
expenses incurred in accordance with Section 9.04(a)(i).
(k) There shall not have occurred any material adverse change in any
country in which any Credit Party or any of its respective Subsidiaries operate,
or in the international loan syndication or financial or capital market
conditions generally from those in effect on the date hereof.
(l) Since December 31, 2001, there shall not have occurred any material
adverse change in the condition (financial or otherwise), operations, assets,
liabilities or prospects of the Borrower or the Borrower and its Subsidiaries
taken as a whole.
(m) No litigation, action, suit, investigation, claim or proceeding by any
Governmental Authority or any Person shall be pending or threatened with respect
to (i) this Agreement, (ii) any other Loan Document, (iii) the transactions
contemplated hereby or thereby, or (iv) any agreement to which any Credit Party
or any of its respective Subsidiaries is a party which could reasonably be
expected to have a Material Adverse Effect.
(n) The Administrative Agent shall have received the consolidated audited
financial statements of the Borrower and the audited financial statements of
each of the Guarantors as of December 31, 2001 and the consolidated unaudited
interim financial statements of the Borrower and each Guarantor for the fiscal
quarter ending September 30, 2002.
(o) All Governmental Approvals required in connection with (i) the
execution, delivery and performance of each of the Loan Documents and (ii) the
legality, validity, binding effect and enforceability of any and all such Loan
Documents, shall have been obtained.
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(p) Each of the Guarantors shall have placed its guaranty ("aval") upon
each of the Notes.
(q) The Administrative Agent shall have received such other certificates,
documents and opinions of counsel as any Lender through the Administrative Agent
may reasonably request.
All of the Notes, certificates, legal opinions and other documents and
papers referred to in this Section 3.01, unless otherwise specified, shall be
delivered to the Administrative Agent for the account of each of the Lenders
and, except for the Notes, in sufficient counterparts or copies for each of the
Lenders.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Each Credit Party represents and warrants to the Lenders as follows as of
the Effective Date and the Borrowing Date:
SECTION 4.01 Legal Status. Each Credit Party and each of its Subsidiaries
(i) is a corporation duly organized and validly existing under the laws of its
jurisdiction of formation, (ii) is duly qualified as a foreign corporation in
each other jurisdiction in which it owns or leases property or in which the
conduct of its business requires it to so qualify or be licensed except where
failure to so qualify would not have a Material Adverse Effect, and (iii) has
all requisite corporate power and authority to own or lease and operate its
properties and to carry on its business as now conducted and as proposed to be
conducted except where the failure to do so would be reasonably likely not to
result in a Material Adverse Effect.
SECTION 4.02 Governmental Approvals. No authorization or approval or other
action by, and no notice to or filing with, any Governmental Authority or any
other third party is required for (i) the due execution, delivery, recordation,
filing or performance by each Credit Party of any Loan Document to which it is
or is to be a party, or for the consummation of the transactions contemplated
hereby or thereby, or (ii) the exercise by the Administrative Agent or any
Lender of its rights under any Loan Document to which any Credit Party is a
party or the remedies provided thereunder.
SECTION 4.03 No Violation. The execution, delivery and performance by a
Credit Party of each Loan Document to which it is or is to be a party, and the
consummation of the transactions contemplated hereby and thereby, are within
such Credit Party's corporate powers, have been duly authorized by all necessary
corporate action, and do not (i) contravene such Credit Party's constitutional
documents, (ii) violate any law, rule, regulation (including, without
limitation, Regulation X of the Board of Governors of the U.S. Federal Reserve
System), order, writ, judgment, injunction, decree, determination or award,
(iii) conflict with or result in the breach of, constitute a default under, or
cause or permit any acceleration of the maturity of, any material contract, loan
agreement, indenture, mortgage, deed of trust, lease or other instrument binding
on or affecting such Credit Party, any of its Subsidiaries or any of their
respective properties or assets, or (iv) result in or require the creation or
30
imposition of any Lien upon or with respect to any of the properties or assets
of such Credit Party or any of its Subsidiaries. No Credit Party nor any of its
Subsidiaries is in violation of any law, rule, regulation, order, writ,
judgment, injunction, decree, determination or award or in breach of any such
contract, loan agreement, indenture, mortgage, deed of trust, lease or other
instrument, the violation or breach of which would be reasonably likely to
result in a Material Adverse Effect.
SECTION 4.04 Litigation. There is no action, suit, investigation,
litigation or proceeding affecting such Credit Party or any of its Subsidiaries
(and, with respect to unasserted claims, to the knowledge of such Credit Party)
(including, but not limited to, any Environmental Action) pending or threatened
before any court, Governmental Authority or arbitrator that (i) if adversely
determined, would be reasonably likely to result in a Material Adverse Effect or
(ii) would be reasonably likely to adversely affect the legality, validity or
enforceability of this Agreement, the Notes or the consummation of the
transactions contemplated hereby or thereby.
SECTION 4.05 Financial Statements; No Material Adverse Change. The
consolidated statements of financial condition of the Borrower and the
statements of financial condition of each Guarantor at December 31, 2001, and
the related consolidated statements of income and retained earnings and changes
in financial position of such Persons and their Subsidiaries for the fiscal year
then ended and heretofore furnished to the Lenders present fairly in all
material respects the consolidated financial condition of the Borrower and its
Subsidiaries at the date of such statements of financial condition and the
consolidated results of the operations of such Persons and their Subsidiaries
for such fiscal year all in accordance with GAAP consistently applied. All such
financial statements have been prepared in accordance with GAAP and fairly
present, in all material respects, the financial condition and results of
operations of such Persons and their Subsidiaries. Since December 31, 2001,
there has been no material adverse change in the business, operations, property,
assets, condition (financial or otherwise) or prospects of such Credit Party or
of such Credit Party and its Subsidiaries taken as a whole.
SECTION 4.06 Tax Returns and Payments. Each Credit Party and each of its
Subsidiaries has filed all tax returns required to be filed by such Person and
has paid all taxes payable by it which have become due pursuant to such tax
returns and all other material taxes and assessments payable by it which have
become due, other than those not yet delinquent and except for those contested
in good faith and for which adequate reserves have been established.
SECTION 4.07 Power and Authority. This Agreement has been, and each Loan
Document to which such Credit Party is or is to be a party when delivered
hereunder will have been, duly executed and delivered by such Credit Party. This
Agreement is, and each other Loan Document to which such Credit Party is or is
to be a party when delivered hereunder will be, the legal, valid and binding
obligation of such Credit Party, enforceable against such Person in accordance
with its terms, subject to applicable bankruptcy, insolvency, reorganization and
similar laws affecting creditors generally and general principles of equity.
SECTION 4.08 Compliance with Laws. Such Credit Party and each of its
Subsidiaries is in compliance in all material respects with all applicable laws,
rules, regulations and orders, except where the failure to so comply would not
be reasonably likely to result in a Material Adverse Effect.
31
SECTION 4.09 Compliance with Environmental Laws. The operations and
properties of such Credit Party and each of its Subsidiaries comply in all
material respects with all Environmental Laws, all necessary Environmental
Permits have been obtained and are in effect for the operations and properties
of such Credit Party and its Subsidiaries, such Credit Party and its
Subsidiaries are in compliance in all material respects with all such
Environmental Permits, and to the best knowledge of such Credit Party, no
circumstances exist that could be reasonably likely to (i) form the basis of an
Environmental Action against such Credit Party or any of its Subsidiaries or any
of their properties that would have a Material Adverse Effect or (ii) cause any
such property to be subject to any restrictions on ownership, occupancy, use or
transferability under any Environmental Law that could have a Material Adverse
Effect.
SECTION 4.10 Priority of Advances. The Obligations under the Loan Documents
constitute unconditional, unsecured and unsubordinated general obligations of
such Credit Party and rank at least pari passu in priority of payment and in all
other respects with all other present and future unsecured and unsubordinated
Debt of such Credit Party.
SECTION 4.11 True and Complete Disclosure. All written information
heretofore or contemporaneously herewith furnished by or on behalf of such
Credit Party or any of its Subsidiaries to the Administrative Agent or any
Lender for purposes of or in connection with this Agreement, the syndication of
the Advances (including, without limitation, the preparation of any information
memorandum related thereto), the other Loan Documents or any transaction
contemplated hereby or thereby is true and accurate in every material respect on
the date as of which such information is dated or certified, and such
information, taken as a whole, is not incomplete by omitting to state any
material fact necessary to make such information not misleading.
SECTION 4.12 Investment Company Act; Public Utility Holding Company Act.
Neither such Credit Party nor any of its Subsidiaries is (a) an "investment
company" as defined in, or subject to regulation under the U.S. Investment
Company Act of 1940, as amended or (b) a "holding company," as defined in, or
subject to regulation under, the U.S. Public Utility Holding Company Act of
1935, as amended.
SECTION 4.13 No Immunity. Neither such Credit Party nor any of its
properties or assets has any immunity from jurisdiction of any court or from
set-off or any legal process (whether through service of notice, attachment
prior to judgment, attachment in aid of execution, execution or otherwise) under
the laws of any jurisdiction. The execution and delivery of the Loan Documents
by the Borrower and the other Credit Parties and the performance by them of
their obligations thereunder constitute commercial transactions.
SECTION 4.14 Use of Proceeds. The Borrower will use the proceeds of the
Advances to refinance existing Debt of the Borrower and to pay transaction fees
and expenses incurred in connection with this Agreement. Neither the making of
any Advance hereunder, nor the use of the proceeds thereof, will violate or be
inconsistent with the provisions of Regulations T, U or X of the Board of
Governors of the U.S. Federal Reserve System and no part of the Advances (or the
proceeds thereof) will be used to purchase or carry any Margin Stock or to
extend credit for the purpose of purchasing or carrying any Margin Stock.
32
SECTION 4.15 Debt. Annex III sets forth a true and complete list of all
Debt for borrowed money (excluding the Advances) of each Credit Party as of the
Borrowing Date and which is to remain outstanding (the "Existing Debt"), in each
case showing the aggregate principal amount thereof and accrued interest in
respect thereof after giving effect to repayments contemplated to be made with
the proceeds of the Advances, and the name of any entity which directly or
indirectly guaranteed such debt. No default or event of default exists under the
Existing Debt.
SECTION 4.16 Subsidiaries. On and as of the Borrowing Date, no Credit Party
has any Subsidiaries other than those Subsidiaries listed on Annex IV. Annex IV
correctly sets forth, as of the Borrowing Date, the percentage ownership (direct
or indirect) of the Borrower in each class of capital stock or other equity in
each of its Subsidiaries.
SECTION 4.17 Fees and Enforcement. No fees or taxes, including, without
limitation, stamp, transaction, registration or similar taxes, are required to
be paid to ensure the legality, validity, or enforceability of this Agreement or
any of the other Loan Documents. Under the laws of Mexico, the choice of the
laws of the State of New York as set forth in the Loan Documents governed by the
laws of the State of New York is a valid choice of law, and the irrevocable
submission by each Credit Party to jurisdiction and consent to service of
process and appointment by each Credit Party of an agent for service of process,
in each case as set forth in such Loan Documents, is legal, valid, binding and
effective. It is understood and agreed by the Lenders that the representations
made in this Section 4.17 are subject to the relevant qualifications set forth
in the opinion of counsel required to be delivered pursuant to Section 3.01(f).
SECTION 4.18 Form of Documentation. Each of the Loan Documents is in proper
legal form under the laws of Mexico for the enforcement thereof against such
Credit Party under such laws. It is understood and agreed by the Lenders that
the representation made in this Section 4.18 is subject to the relevant
qualifications set forth in the opinion of counsel required to be delivered
pursuant to Section 3.01(f).
SECTION 4.19 Withholding and Value-Added Taxes.
(a) All payments of interest under this Agreement, the Notes and the other
Loan Documents in respect of the Obligations by the Credit Parties to Lenders
(i) having their principal place of business or residence in a country with
which Mexico has in effect a treaty or convention for the avoidance of double
taxation, and (ii) (A) which are Registered Banks, are subject to withholding of
Mexican income tax at an effective rate of 4.9% (such effective rate or such
other rate as may be specified from time to time under applicable Mexican law,
the "Reduced Withholding Rate") or (B) in the case of EDC, at an effective rate
of 0%. The Borrower is obligated to pay such additional amounts pursuant to
Section 2.10 as will result in receipt by the Lenders of such amounts as would
have been received by the Lenders had no such withholding been required.
(b) Other than as set forth in this Section 4.19, no other Mexican
withholding or other taxes are required to be paid in respect of, or deducted
from, any payment required to be made by the Borrower under this Agreement, the
Notes or any other Loan Document.
33
ARTICLE V
COVENANTS OF THE CREDIT PARTIES
SECTION 5.01 Affirmative Covenants. Each Credit Party covenants and agrees
that, unless the Required Lenders shall otherwise consent in writing, on the
Effective Date and thereafter for so long as any Obligations under the Loan
Documents shall remain unpaid, or any Lender shall have any Commitment
hereunder:
(a) Compliance with Laws, Etc. Except when the failure to do so would not
be reasonably likely to result in a Material Adverse Effect, it shall comply,
and cause each of its Subsidiaries to comply, in all material respects, with all
applicable laws, rules, regulations and orders.
(b) Payment of Taxes, Etc. Except as would not reasonably be expected to
have a Material Adverse Effect, it shall pay and discharge, and cause each of
its Subsidiaries to pay and discharge, before the same shall become delinquent,
(i) all taxes, assessments and governmental charges or levies imposed upon it or
upon its property or assets and (ii) all lawful claims that, if unpaid, might by
law become a Lien upon its property; provided, however, that neither it nor any
of its Subsidiaries shall be required to pay or discharge any such tax,
assessment, charge or claim that is being contested in good faith and by proper
proceedings and as to which appropriate reserves are being maintained (if
required by GAAP), unless and until any Lien resulting therefrom attaches to its
property or assets, becomes enforceable against its other creditors and could
reasonably be expected to have a Material Adverse Effect.
(c) Preservation of Corporate Existence, Etc. It shall preserve and
maintain, and cause each of its Subsidiaries to preserve and maintain, its
corporate existence, rights (charter and statutory) and franchises; provided,
however, that neither it nor any of its Subsidiaries shall be required to
preserve any right or franchise, nor shall it be required to maintain the
corporate existence of any Subsidiary if the preservation or maintenance thereof
is no longer desirable in the conduct of the business of such Credit Party or
such Subsidiary, as the case may be, and the failure to preserve any such right
or franchise or maintain the corporate existence of such Subsidiary would not be
reasonably likely to result in a Material Adverse Effect.
(d) Compliance with Environmental Laws. Except when the failure to do so
would not be reasonably likely to result in a Material Adverse Effect, it shall
comply, and cause each of its Subsidiaries and, to the extent commercially
practicable, all lessees and other Persons operating or occupying its properties
to comply, in all material respects, with all Environmental Laws and
Environmental Permits applicable to its operations and properties and obtain and
renew all Environmental Permits necessary for its operations and properties.
(e) Maintenance of Insurance. It shall maintain, and cause each of its
Subsidiaries to maintain, insurance with responsible insurance companies or
associations in such amounts and covering such risks as is usually carried by
companies engaged in similar businesses and owning similar properties in the
same general areas in which such Credit Party or such Subsidiary operates.
34
(f) Inspection Rights. At any time during regular business hours upon prior
written notice to any Credit Party, it shall permit the Administrative Agent, or
any Lender, or any agents or representatives thereof, to examine and make notes
with respect to records and books of account of, and visit the properties of,
such Credit Party and any of its Subsidiaries, and to discuss the affairs,
finances and accounts of such Credit Party and any of its Subsidiaries with any
of their executive officers or directors and with their independent certified
public accountants.
(g) Keeping of Books. It will, and will cause each of its Subsidiaries to,
keep proper books of record and account in which full, true and correct entries
in conformity with GAAP and all requirements of law shall be made of all
dealings and transactions in relation to its business and activities.
(h) Maintenance of Properties, Etc. Except where the failure to do so would
not be reasonably likely to result in a Material Adverse Effect, it shall
maintain and preserve, and cause each of its Subsidiaries to maintain and
preserve, all of its properties and assets that are material to the conduct of
its business in good working order and condition, ordinary wear and tear
excepted.
(i) Compliance with Terms of Leaseholds. Except where the failure to do so
would not be reasonably likely to result in a Material Adverse Effect, it shall
make all payments and otherwise perform in all material respects all obligations
in respect of all material leases of real property and cause all of its
Subsidiaries to do so, and, to the extent material to the business of such
Credit Party, keep such leases in full force and effect and not allow such
leases to lapse or be terminated or rights to renew such leases to be forfeited
or canceled.
(j) Covenant to Guarantee Obligations.
(i) At any time that any new Material Subsidiary of such Credit Party shall
be formed or acquired, at the expense of such Person, it shall:
(A) within 30 days after such formation or acquisition, cause such Material
Subsidiary to duly execute and deliver to the Administrative Agent a joinder
agreement, substantially in the form of Exhibit I (a "Joinder Agreement"), and
place its guaranty ("aval") upon each of the Notes; and
(B) at any time and from time to time, promptly execute and deliver any and
all further instruments and documents and take all such action as the
Administrative Agent may reasonably deem necessary in obtaining the full
benefits of and preserving the Guaranty.
(ii) Notwithstanding any other provision of this Agreement, Subsidiaries of
the Borrower representing not less than 80% of the total consolidated assets,
consolidated gross revenues and Consolidated EBITDA of the Borrower shall at all
times have guaranteed the Obligations of the Borrower hereunder by becoming
Guarantors in accordance with the provisions of Section 5.01(j)(i).
35
SECTION 5.02 Negative Covenants. Each Credit Party covenants and agrees
that, unless the Required Lenders shall otherwise consent in writing, on the
Effective Date and thereafter for so long as any Obligation under the Loan
Documents shall remain unpaid or any Lender shall have any Commitment hereunder:
(a) Liens. It will not, and will not permit any of its Subsidiaries to,
create, incur, assume or suffer to exist any Lien upon or with respect to any
property or assets (real or personal, tangible or intangible) of such Person or
any of its Subsidiaries, whether now owned or hereafter acquired, provided that
the provisions of this Section 5.02(a) shall not prevent the creation,
incurrence, assumption or existence of Permitted Liens.
(b) Mergers, Etc. It shall not merge with or into or consolidate with or
into any Person, or permit any of its Subsidiaries to do so, unless: (i) either
(a) such merger or consolidation is between any of such Credit Party's
Subsidiaries and any of the Borrower's other Subsidiaries, (b) a Credit Party
shall be the continuing Person in the case of a merger or (c) the resulting or
surviving Person if other than a Credit Party (the "Successor Company") shall
expressly assume, by a written agreement, executed and delivered to the
Administrative Agent, in form and substance reasonably satisfactory to the
Administrative Agent, all the obligations of such Credit Party under the Loan
Documents; (ii) immediately after giving effect to such transaction (and
treating any Debt which becomes an obligation of the Successor Company or any
Subsidiary of such Credit Party or the Successor Company as a result of such
transaction as having been incurred by the Successor Company or such Subsidiary
at the time of such transaction), no Default or Event of Default would occur or
be continuing and such Credit Party shall have delivered to the Administrative
Agent an officer's certificate to that effect; and (iii) except in the case of
any merger or consolidation under clause (i)(a) above: such Credit Party shall
have delivered to the Administrative Agent an officer's certificate and an
opinion of counsel, each stating that such consolidation or merger and such
written agreement comply with the Loan Documents and, if such consolidation or
merger results in a Successor Company, that such written agreement constitutes
the legal, valid and binding obligation of the Successor Company, enforceable
against such entity in accordance with its terms, subject to customary
exceptions.
(i) Dividends; Payment Restrictions Affecting Subsidiaries.
(i) From and after the date on which a Default, of which such Credit Party
becomes aware, or Event of Default has occurred and is continuing and so long as
permitted by applicable law, it will not declare or pay any dividends, or return
any capital, to its stockholders or authorize or make any other distribution,
payment or delivery of property or cash to its stockholders as such, or redeem,
retire, purchase or otherwise acquire, directly or indirectly, for a
consideration, any shares of any class of its capital stock now or hereafter
outstanding (or any options or warrants issued by such Credit Party with respect
to its capital stock), or set aside any funds for any of the foregoing purposes,
or permit any of its Subsidiaries to purchase or otherwise acquire for a
consideration any shares of any class of the capital stock of such Credit Party
now or hereafter outstanding (or any options or warrants issued by such Credit
Party with respect to its capital stock), except that any Credit Party may pay
dividends to the Borrower or any other Credit Party.
36
(ii) From and after the date on which a Default, of which such Credit Party
becomes aware, or Event of Default has occurred and is continuing and so long as
permitted by applicable law, it will not permit any of its Subsidiaries to
declare or pay any dividends, or return any capital, to its stockholders or
authorize or make any other distribution, payment or delivery of property or
cash to its stockholders as such, or redeem, retire, purchase or otherwise
acquire, directly or indirectly, for a consideration, any shares of any class of
its capital stock now or hereafter outstanding (or any options or warrants
issued by such Subsidiary with respect to its capital stock), or set aside any
funds for any of the foregoing purposes, or permit any of its Subsidiaries to
purchase or otherwise acquire for a consideration any shares of any class of the
capital stock of such Subsidiary now or hereafter outstanding (or any options or
warrants issued by such Subsidiary with respect to its capital stock), except
that any Subsidiary may pay dividends to the Borrower or any other Credit Party.
(iii) It will not, directly or indirectly, enter into or permit any of its
Subsidiaries to enter into any agreement or arrangement limiting the ability of
any of its Subsidiaries to (A) declare or pay dividends or other distribution in
respect of its capital stock (whether through a covenant restricting dividends,
loans, asset transfers or investments, a financial covenant or otherwise) or (B)
repay or prepay any Debt owed to, make loans or advances to, or otherwise
transfer assets to or invest in, the Borrower or any Subsidiary of the Borrower,
except as permitted under the Loan Documents and which would not be reasonably
likely to result in a Material Adverse Effect.
(d) Consolidation, Purchases, Sale of Assets, etc. It will not, and will
not permit any of its Subsidiaries to, wind up, liquidate or dissolve its
affairs or enter into any transaction of merger or consolidation, or convey,
sell, lease or otherwise dispose of (or agree to do any of the foregoing at any
future time) all or more than the lesser of (x) 25% of the Total Assets or (y)
assets which contribute more than 10% of the Consolidated EBITDA in the
preceding fiscal year of the Borrower, or purchase or otherwise acquire (in one
or a series of related transactions) any part of the property or assets (other
than purchases or other acquisitions of inventory, materials and equipment in
the ordinary course of business) of any Person, or permit any of its
Subsidiaries so to do any of the foregoing, except that:
(i) the Borrower and its Subsidiaries may make sales of inventory in the
ordinary course of business;
(ii) the Borrower and its Subsidiaries may, in the ordinary course of
business, sell equipment which is uneconomic or obsolete;
(iii) the Borrower and its Subsidiaries may merge or consolidate to the
extent permitted under Section 5.02(b);
(iv) any Subsidiary may sell, transfer, lease or otherwise dispose of its
assets to the Borrower or to any Credit Party; and
(v) any Subsidiary of the Borrower may liquidate or dissolve its affairs;
provided, that (i) such liquidation or dissolution will not result in a Material
Adverse Effect, (ii) before and after such liquidation or dissolution (and after
giving pro forma effect thereto), no Default or Event of Default shall have
37
occurred and be continuing, and (iii) such Subsidiary, which liquidates or
dissolves, shall not have represented or contributed, as the case may be, more
than 10% of the total consolidated assets, consolidated gross revenues or
Consolidated EBITDA of the Borrower, as the case may be, all as calculated by
reference to the most recent quarterly financial statements (or annual financial
statements, as the case may be) of such Subsidiary and the most recent
consolidated quarterly financial statements (or consolidated annual financial
statements, as the case may be) of the Borrower required to be delivered
hereunder.
(e) Change in Nature of Business. It shall not make, or permit any of its
Subsidiaries to make, any material change in the nature and conduct of the
business of such Credit Party and its Subsidiaries as carried on at the date of
this Agreement.
(f) Limitation on Voluntary Payments and Modifications of Certain Debt. It
will not, and will not permit any of its Subsidiaries to, (i) make any voluntary
or optional payment or prepayment on or redemption or acquisition for value of
(including, without limitation, by way of depositing with the trustee with
respect thereto money or securities before due for the purpose of paying when
due) any unsecured Debt that is fully subordinated in the right of payment to
the Advances and other Obligations under the Loan Documents; provided, however,
that the Borrower may make voluntary or optional payments or prepayments of
Inter-company Debt as long as, simultaneously with such payment or prepayment,
the Borrower prepays the Advances as and to the extent set forth in Section
2.04(b)(ii) or, (ii) amend or modify, or permit the amendment or modification
of, any provision of any unsecured Debt that is fully subordinated in the right
of payment to the Advances and other Obligations under the Loan Documents or of
any agreement (including, without limitation, any purchase agreement, indenture,
loan agreement or security agreement) relating to any of the foregoing, if such
payment, prepayment, amendment, modification or change of any unsecured Debt
could, in the reasonable opinion of the Administrative Agent, be reasonably
expected to result in a Material Adverse Effect.
(g) Transactions with Affiliates or Shareholders. It will not, and will not
permit any of its Subsidiaries to, enter into any transaction or series of
related transactions, other than in the ordinary course of business, with any
Affiliate or shareholder of such Credit Party, other than on terms and
conditions substantially as favorable to such Credit Party or such Subsidiary as
would be obtainable by such Credit Party or such Subsidiary at the time in a
comparable arm's-length transaction with a Person other than an Affiliate or
shareholder of such Credit Party.
(h) Accounting Changes. It shall not make or permit, or permit any of its
Subsidiaries to make or permit, any change in accounting policies or reporting
practices, except as required by GAAP or requested by any Governmental Authority
(and in each case such Credit Party will promptly notify the Administrative
Agent and the Lenders of any such change).
(i) Constitutional Documents. The Borrower shall not amend, modify or
change in any manner any material term or condition of any constitutional
document of the Borrower or any Subsidiary or take any other action in
connection with any constitutional document that would reasonably be likely to
result in a Material Adverse Effect.
(j) Ratio of Consolidated Financial Debt to EBITDA. The Borrower will not
permit the ratio of Consolidated Financial Debt to Consolidated EBITDA, at the
end of any period of four consecutive calendar quarters (taken as one accounting
38
period) (i) from the Effective Date up to and including December 17, 2003, to be
greater than 3.25:1.00, (ii) from December 18, 2003, up to and including
December 17, 2004, to be greater than 3.00:1.00, and (iii) from December 18,
2004, to be greater than 2.75:1.00.
(k) Ratio of Consolidated Debt to Consolidated Net Worth. The Borrower will
not permit the ratio of Consolidated Debt to Consolidated Net Worth, at the end
of any period of four consecutive calendar quarters (taken as one accounting
period) (i) from the Effective Date up to and including December 17, 2003, to be
greater than 4.00:1.00, (ii) from December 18, 2003, up to and including
December 17, 2004, to be greater than 3.50:1.00, and (iii) from December 18,
2004, to be greater than 3.25:1.00.
(l) Interest Coverage Ratio. The Borrower will not permit the ratio of
Consolidated EBITDA to Consolidated Interest Expense at the end of any period of
four consecutive calendar quarters (taken as one accounting period) to be less
than 3.00:1.00.
(m) Minimum Consolidated Net Worth. The Borrower will not permit its
Consolidated Net Worth at the end of any calendar quarter (i) from the Effective
Date up to and including December 17, 2003, to be less than U.S.$95,000,000,
(ii) from December 18, 2003, up to and including December 17, 2004, to be less
than U.S.$115,000,000, and (iii) from December 18, 2004, to be less than
U.S.$125,000,000.
(n) Limitation on Non-Guarantor Subsidiary Debt and Inter-company Debt. The
Borrower will not (i) permit its Non-Guarantor Subsidiaries to incur Debt, or
(ii) contract, create, incur, assume or suffer to exist more than
Ps.1,500,000,000 outstanding principal amount of Inter-company Debt at any time,
excluding any interest due on such outstanding principal amount which will be
capitalized and considered as part of the outstanding principal amount of
Inter-company Debt.
The Lenders agree and acknowledge that the Borrower intends to sell in
whole or in part the Non-Guarantor Subsidiaries and that nothing in this Section
5.02 shall be construed as a limitation or restriction on the ability of the
Borrower to carry out such sales or of the Borrower or any Non-Guarantor
Subsidiary to take any action in connection with such sales.
SECTION 5.03 Reporting Requirements. The Borrower covenants and agrees
that, unless the Required Lenders shall otherwise consent in writing, for so
long as any Obligation under the Loan Documents shall remain unpaid or any
Lender shall have any Commitment hereunder, it will furnish to the
Administrative Agent and each of the Lenders, all of which, to the best
knowledge of the Borrower, will be true and complete in every material respect,
the following:
(a) Default Notice. As soon as possible and in any event within two
Business Days after the occurrence of each Default continuing on the date of
such statement, a statement of its chief accounting officer or any other
Responsible Officer setting forth details of such Default and the action that
the Borrower has taken and proposes to take with respect thereto.
(b) Quarterly Financials. As soon as available and in any event within 90
days after the end of each quarter of each fiscal year of the Borrower, a
consolidated balance sheet of the Borrower and its Subsidiaries as of the end of
39
such quarter and consolidated statements of income and cash flows of the
Borrower and its Subsidiaries for the period commencing at the end of the
previous fiscal year and ending with the end of such quarter, setting forth in
each case in comparative form the corresponding figures for the corresponding
period of the preceding fiscal year, all in reasonable detail and duly certified
(subject to year-end audit adjustments) by the chief accounting officer of the
Borrower or any other Responsible Officer as having been prepared (with respect
to such consolidated financial statements) in accordance with GAAP, together
with a certificate of such officer stating that no Default has occurred and is
continuing or, if a Default has occurred and is continuing, a statement as to
the nature thereof and the action that the Borrower has taken and proposes to
take with respect thereto.
(c) Annual Financials. As soon as available and in any event within 120
days after the end of each fiscal year of the Borrower, a copy of the annual
audit report for such year for the Borrower and its Subsidiaries, including
therein a consolidated balance sheet of the Borrower and its Subsidiaries as of
the end of such fiscal year, and consolidated statements of income and cash
flows of the Borrower and its Subsidiaries for such fiscal year, in each case
(with respect to such consolidated financial statements) accompanied by an
opinion of Galaz, Yamasaki, Xxxx Xxxxxxx, S.C. (Deloitte & Touche) or other
independent public accountants of recognized international standing, together
with a certificate of the chief accounting officer of the Borrower or any other
Responsible Officer stating that no Default has occurred and is continuing or,
if a default has occurred and is continuing, a statement as to the nature
thereof and the action that the Borrower has taken and proposes to take with
respect thereto.
(d) Material Adverse Change. As soon as possible and in any event within
five days after such Credit Party knows or has reason to know of any Material
Adverse Change, or any event or circumstance which might result in a Material
Adverse Change, notice thereof and copies of all documentation relating thereto.
(e) Litigation. Promptly after the commencement thereof, notice of all
actions, suits, investigations, litigation and proceedings before any court or
governmental department, commission, board, bureau, agency or instrumentality,
domestic or foreign, by or against such Credit Party or any of its Subsidiaries
which could reasonably be expected to have a Material Adverse Effect.
(f) Securities Reports. Promptly after the sending or filing thereof,
copies of all financial statements and reports that the Borrower sends to its
stockholders, and copies of all regular, periodic and special reports, and all
registration statements, that the Borrower files with any securities commission
or similar Governmental Authority or with any national securities exchange.
(g) Environmental Conditions. Promptly after the occurrence thereof, notice
of any condition or occurrence on any property of such Credit Party or any of
its Subsidiaries of which such Credit Party is aware and that results in a
material noncompliance by such Credit Party or any of its Subsidiaries with any
Environmental Law or Environmental Permit or could form the basis of an
Environmental Action against such Credit Party or any of its Subsidiaries that
would be reasonably likely to result in a Material Adverse Effect.
40
(h) Asset Sale; Payment of Inter-company Debt. At least five Business Days
prior to any Asset Sale or any payment of the principal amount of the
Inter-company Debt, notice thereof setting forth details of such Asset Sale or
such payment of the principal amount of the Inter-company Debt.
(i) Other Information. Such other information respecting the business,
financial condition, operations, performance, properties, assets or prospects of
such Credit Party or any of its Subsidiaries as any Lender through the
Administrative Agent may from time to time reasonably request.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01 Events of Default. If any of the following events (each an
"Event of Default") shall occur and be continuing:
(a) the Borrower shall fail to pay (i) any principal of any Advance when
the same shall become due and payable, or (ii) interest on any Advance, or shall
fail to make any other payment in the case of fees or other amounts due under
any Loan Document, in each case under this clause (ii) within three Business
Days after the same becomes due any payable; or
(b) any representation or warranty made by any Credit Party or the
Subordinated Creditor (or any of their respective officers) under or in
connection with any Loan Document shall prove to have been incorrect in any
material respect when made or deemed made; or
(c) any Credit Party shall fail to perform or observe any term, covenant or
agreement contained in (i) Section 5.01(c), Section 5.02 or Section 5.03(d), or
(ii) Section 5.01(b) or (h), Section 5.03(a)-(c) or (f)-(i), or the Subordinated
Creditor shall fail to perform or observe any term, covenant or agreement
contained in the Subordination Agreement, in each case if such failure shall
remain unremedied for 10 Business Days after such Credit Party or the
Subordinated Creditor has knowledge thereof or written notice thereof shall have
been given to such Credit Party or the Subordinated Creditor by the
Administrative Agent or any Lender; or
(d) any Credit Party shall fail to perform any term, covenant or agreement
contained in this Agreement (other than those referred to in clauses (a) through
(c) above) or in any Loan Document on its part to be performed or observed if
such failure shall remain unremedied for 30 days after such Credit Party has
knowledge thereof or written notice thereof shall have been given to such Credit
Party by the Administrative Agent or any Lender; or
(e) (x) any Credit Party or any of its Subsidiaries shall fail to pay any
principal of, premium or interest on any other amount payable in respect of any
Debt that is outstanding in an aggregate principal or notional amount of at
least U.S.$10,000,000 (or the equivalent in another currency) in the aggregate
(but excluding Debt outstanding hereunder) of such Credit Party or such
Subsidiary (as the case may be), when the same becomes due and payable (whether
by scheduled maturity, required prepayment, acceleration, demand or otherwise),
and such failure shall continue after the applicable grace period, if any,
specified in the agreement or instrument relating to such Debt; or (y) any other
event shall occur or condition shall exist under any agreement or instrument
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relating to any such Debt, if the effect of such event or condition is to
accelerate the maturity of such Debt or otherwise to cause such Debt to mature
prior to its scheduled maturity; or
(f) any Credit Party or any of its Subsidiaries shall generally not pay its
debts as such debts become due, or shall admit in writing its inability to pay
its debts generally, or shall make a general assignment for the benefit of
creditors; or any proceeding shall be instituted by or against such Credit Party
or any of its Subsidiaries seeking to adjudicate it as bankrupt or insolvent, or
seeking liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, or composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors, or seeking the
entry of an order for relief or the appointment of a receiver, trustee, or other
similar official for it or for any substantial part of its property and, in
respect of an involuntary proceeding instituted against such Person, the same
shall remain unstayed or undismissed for 60 days; or any Credit Party or any of
its Subsidiaries shall take any corporate action to authorize any of the actions
set forth above in this clause; or
(g) any judgment or order for the payment of money in excess of
U.S.$10,000,000 (or the equivalent in another currency) which is not covered by
insurance shall be rendered against any Credit Party or any of its Subsidiaries
and either (i) enforcement proceedings shall have been commenced by any creditor
upon such judgment or order or (ii) there shall be any period of 30 consecutive
days during which a stay of enforcement of such judgment or order, by reason of
a pending appeal or otherwise, shall not be in effect; or
(h) any non-monetary judgment or order shall be rendered against any Credit
Party or any of its Subsidiaries that is reasonably likely to result in a
Material Adverse Effect, and there shall be any period of 30 consecutive days
during which a stay of enforcement of such judgment or order, by reason of a
pending appeal or otherwise, shall not be in effect; or
(i) a Change of Control shall occur; or
(j) any Mexican Governmental Authority shall (i) have taken any action,
including imposing a moratorium, which prevents any Credit Party from accessing
sufficient U.S. dollar funds to pay its Obligations as they mature or (ii)
condemn, seize, compulsorily purchase or expropriate all or a substantial part
of the assets and properties of any Credit Party or any of its Subsidiaries;
then, and in any such event, the Administrative Agent (i) shall at the
request, or may with the consent, of the Required Lenders, by notice to the
Borrower, declare the obligation of each Lender to make its respective Advance
to be terminated, whereupon the same shall forthwith terminate, and (ii) shall
at the request, or may with the consent, of the Required Lenders, by notice to
the Borrower, (x) declare the Notes, all interest thereon and all other amounts
payable under this Agreement and the other Loan Documents to be forthwith due
and payable, whereupon the Notes, all such interest and all such amounts shall
become and be forthwith due and payable, without presentment, demand, protest or
further notice of any kind, all of which are hereby expressly waived by the
Credit Parties and (y) take all remedies as may be available under the Loan
Documents or otherwise; provided, however, that if an Event of Default specified
in Section 6.01(f) shall occur with respect to the Borrower or any Guarantor,
(x) the obligation of each Lender to make its respective Advance shall
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automatically be terminated and (y) the Notes, all such interest and all such
amounts shall automatically become and be due and payable, without presentment,
demand, protest or any notice of any kind, all of which are hereby expressly
waived by the Credit Parties.
ARTICLE VII
GUARANTY
SECTION 7.01 The Guaranteed Obligations. Each Guarantor, jointly and
severally, hereby irrevocably and unconditionally guarantees (such guaranty, a
"Guaranty") the full and prompt payment when due (whether by acceleration or
otherwise) of the principal of and interest on any Note issued under this
Agreement and of all other obligations and liabilities (including, without
limitation, indemnities, fees and interest thereon) of the Borrower now existing
or hereafter incurred under, arising out of or in connection with this Agreement
or any other Loan Document and the due performance and compliance with the terms
of the Loan Documents by the Borrower (all such principal, interest, obligations
and liabilities, collectively, the "Guaranteed Obligations"). Each Guarantor
understands, agrees and confirms that the Lenders may enforce this Guaranty up
to the full amount of the Guaranteed Obligations against it without proceeding
against the Borrower, against any security for the Guaranteed Obligations or
against any other Guarantor under any other Guaranty covering the Guaranteed
Obligations. Each of the Guarantors irrevocably and unconditionally promises to
pay such Guaranteed Obligations to the Lenders, on demand, in Dollars, on the
same basis as payments by the Borrower are required to be made under Sections
2.09(a), 2.10(a) and 2.10(b). This Guaranty shall constitute a guaranty of
payment and not of collection.
SECTION 7.02 Continuing Obligation. This Guaranty is a continuing one and
all liabilities to which it applies or may apply under the terms hereof shall be
conclusively presumed to have been created in reliance hereon. No failure or
delay on the part of any Lender in exercising any right, power or privilege
hereunder and no course of dealing between any Guarantor and any Lender or the
holder of any Note shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, power or
privilege. The rights, powers and remedies herein expressly provided are
cumulative and not exclusive of any rights, powers or remedies which any Lender
or the holder of any Note would otherwise have. No notice to or demand on any
Guarantor in any case shall entitle such Guarantor to any other further notice
or demand in similar or other circumstances or constitute a waiver of the rights
of any Lender or the holder of any Note to any other or further action in any
circumstances without notice or demand.
SECTION 7.03 No Discharge. If a claim is ever made upon any Lender for
repayment or recovery of any amount or amounts received in payment or on account
of any of the Guaranteed Obligations and any of the aforesaid payees repays all
or part of said amount by reason of (a) any judgment, decree or order of any
court or administrative body having jurisdiction over such payee or any of its
property or (b) any settlement or compromise of any such claim effected by such
payee with any such claimant, then and in such event the Guarantor agrees that
any such judgment, decree, order, settlement or compromise shall be binding upon
it notwithstanding any revocation hereof or the cancellation of any Note or
other instrument evidencing any liability of such Guarantor, and such Guarantor
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shall be and remain liable to the aforesaid payees hereunder for the amount so
repaid or recovered to the same extent as if such amount had never originally
been received by any such payee. It is the intention of the Lenders and the
Guarantors that the Guaranteed Obligations hereunder shall not be discharged
(whether pursuant to any Bankruptcy Law or comparable legislation or otherwise)
except by indefeasible performance of such obligations and then only to the
extent of such performance.
SECTION 7.04 Tolling of Statute of Limitations. Any acknowledgment or new
promise, whether by payment of principal or interest or otherwise, with respect
to any of the Guaranteed Obligations shall, if the statute of limitations in
favor of a Guarantor against the Administrative Agent, any Lender or the holder
of any Note shall have commenced to run, toll the running of such statute of
limitations, and if the period of such statute of limitations shall have
expired, prevent the operation of such statute of limitations.
SECTION 7.05 Bankruptcy. Each Guarantor unconditionally and irrevocably
guarantees the payment of any and all of the Guaranteed Obligations of the
Borrower to the Lenders whether or not due or payable by the Borrower upon the
occurrence of any of the events specified in Section 6.01(f), and
unconditionally promises to pay such Debt to the Lenders, or order, on demand,
in Dollars.
SECTION 7.06 Independent Obligation. The obligations of each Guarantor
hereunder are independent of the obligations of any other Credit Party, and a
separate action or actions may be brought and prosecuted against each Guarantor
whether or not an action is brought against any other Credit Party and whether
or not any other Credit Party be joined in any such action or actions. Each of
the Guarantors waives, to the full extent permitted by law, the benefit of any
statute of limitations affecting its liability hereunder or the enforcement
thereof. Any payment by such Credit Party or other circumstance which operates
to toll any statute of limitations as to the Borrower shall operate to toll the
statute of limitations as to each of the Guarantors.
SECTION 7.07 Authorization. Each of the Guarantors authorizes the Lenders
without notice or demand (except as shall be required by applicable statute and
cannot be waived), and without affecting or impairing its liability hereunder,
from time to time to:
(a) change the manner, place or terms of payment of, and/or change or
extend the time of payment of, renew, increase, accelerate or alter, any of the
Guaranteed Obligations (including any increase or decrease in the rate of
interest thereon), any security therefor, or any liability incurred directly or
indirectly in respect thereof, and the Guaranty herein made shall apply to the
Guaranteed Obligations as so changed, extended, renewed or altered;
(b) take and hold security for the payment of the Guaranteed Obligations
and sell, exchange, release, surrender, realize upon or otherwise deal with in
any manner and in any order any property by whomsoever at any time pledged or
mortgaged to secure, or howsoever securing, the Guaranteed Obligations or any
liabilities (including any of those hereunder) incurred directly or indirectly
in respect thereof or hereof, and/or any offset thereagainst;
(c) exercise or refrain from exercising any rights against the Borrower,
any other Credit Party or others or otherwise act or refrain from acting;
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(d) release or substitute any one or more endorsers, Guarantors, the
Borrower, any other Credit Parties or other obligors;
(e) settle or compromise any of the Guaranteed Obligations, any security
therefor or any liability (including any of those hereunder) incurred directly
or indirectly in respect thereof or hereof, and may subordinate the payment of
all or any part thereof to the payment of any liability (whether due or not) of
the Borrower to its creditors other than the Lenders;
(f) apply any sums by whomsoever paid or howsoever realized to any
liability or liabilities of any Credit Party to the Lenders regardless of what
liability or liabilities of such Guarantor or the Borrower remain unpaid;
(g) consent to or waive any breach of, or any act, omission or default
under, this Agreement, any other Loan Document or any of the instruments or
agreements referred to herein or therein, or otherwise amend, modify or
supplement this Agreement, any other Loan Document or any of such other
instruments or agreements; and/or
(h) take any other action which would, under otherwise applicable
principles of common law, give rise to a legal or equitable discharge of a
Guarantor from its liabilities under this Guaranty.
(i) Reliance. It is not necessary for any Lender to inquire into the
capacity or powers of a Guarantor or any of its Subsidiaries or the officers,
directors, partners or agents acting or purporting to act on their behalf, and
any Guaranteed Obligations made or created in reliance upon the professed
exercise of such powers shall be guaranteed hereunder.
SECTION 7.09 Waiver.
(a) Each Guarantor waives any right (except as shall be required by
applicable law and cannot be waived) to require any Lender to (i) proceed
against any other Credit Party or any other party, (ii) proceed against or
exhaust any security held from any other Credit Party, or any other party or
(iii) pursue any other remedy in any Lender's power whatsoever. Each Guarantor
waives any defense based on or arising out of any defense of any other Credit
Party or any other party, other than payment in full of the Guaranteed
Obligations, based on or arising out of the disability of any other Credit Party
or any other party, or the validity, legality or unenforceability of the
Guaranteed Obligations or any part thereof from any cause, or the cessation from
any cause of the liability of any other Credit Party or any other party other
than payment in full of the Guaranteed Obligations. The Lenders may, at their
election, exercise any right or remedy the Lenders may have against any other
Credit Party or any other party, or any security, without affecting or impairing
in any way the liability of the Guarantors hereunder except to the extent the
Guaranteed Obligations have been paid. Each Guarantor waives any defense arising
out of any such election by the Lenders, even though such election operates to
impair or extinguish any right of reimbursement or subrogation or other right or
remedy of a Guarantor against any other Credit Party or any other party or any
security.
(b) Each Guarantor waives all presentments, demands for performance,
protests and notices, including, without limitation, notices of nonperformance,
notices of protest, notices of dishonor, notices of acceptance of this Guaranty,
and notices of the existence, creation or incurring of new or additional
Guaranteed Obligations. Each Guarantor assumes all responsibility for being and
keeping itself informed of each Credit Party's financial condition and assets,
and of all other circumstances bearing upon the risk of nonpayment of the
Guaranteed Obligations and the nature, scope and extent of the risks which such
Guarantor assumes and incurs hereunder, and agrees that the Administrative Agent
and the Lenders shall have no duty to advise such Guarantor of information known
to them regarding such circumstances or risks.
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(c) Each Guarantor irrevocably waives Articles 2814, 2815, 2816, 2817,
2818, 2819, 2820, 2821, 2822, 2823, 2830, 2836, 2837, 2839, 2840, 2841, 2842,
2845 and 2846 of the Federal Civil Code of Mexico.
(d) Each Guarantor warrants and agrees that each of the waivers set forth
above is made with full knowledge of its significance and consequences and that
if any of such waivers are determined to be contrary to any applicable law or
public policy, such waivers shall be effective only to the maximum extent
permitted by law.
SECTION 7.10 Nature of Liability. It is the desire and intent of each of
the Guarantors and the Lenders that this Guaranty shall be enforced against the
Guarantors to the fullest extent permissible under the laws and public policies
applied in each jurisdiction in which enforcement is sought. If, however, and to
the extent that, the obligations of a Guarantor under this Guaranty shall be
adjudicated to be invalid or unenforceable for any reason then the amount of
such Guarantor's obligations under this Guaranty shall be deemed to be reduced
and such Guarantor shall pay the maximum amount of the Guaranteed Obligations
which would be permissible under applicable law.
ARTICLE VIII
THE ADMINISTRATIVE AGENT
SECTION 8.01 Authorization and Action. Each Lender hereby appoints and
authorizes the Administrative Agent to take such action as agent on its behalf
and to exercise such powers and discretion under this Agreement and the other
Loan Documents as are delegated to the Administrative Agent by the terms hereof,
together with such powers and discretion as are reasonably incidental thereto.
Notwithstanding any provision to the contrary contained elsewhere in this
Agreement or in any other Loan Document, the Administrative Agent shall not have
any duties or responsibilities, except those expressly set forth herein, nor
shall the Administrative Agent have or be deemed to have any fiduciary
relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the
Administrative Agent. As to any matters not expressly provided for by the Loan
Documents (including, without limitation, enforcement or collection of the
Notes), the Administrative Agent shall not be required to exercise any
discretion or take any action, but shall be required to act or to refrain from
acting (and shall be fully protected in so acting or refraining from acting)
upon the instructions of the Required Lenders, and such instructions shall be
binding upon all Lenders and all holders of Notes; provided, however, that the
Administrative Agent shall not be required to take any action that exposes the
Administrative Agent to personal liability or that is contrary to this Agreement
or applicable law. The Administrative Agent agrees to give to each Lender prompt
notice of each notice given to it by the Borrower pursuant to the terms of this
Agreement.
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SECTION 8.02 Duties and Reliance, Etc.
(a) Neither the Administrative Agent nor any of its directors, officers,
agents or employees shall be liable for any action taken or omitted to be taken
by it or them under or in connection with the Loan Documents, except for its or
their own gross negligence or willful misconduct, or shall have any fiduciary
duty to any Lender. Without limitation of the generality of the foregoing, the
Administrative Agent: (i) may treat the payee of any Note as the holder thereof
until the Administrative Agent receives and accepts an Assignment and Acceptance
entered into by the Lender that is the payee of such Note, as assignor, and an
Eligible Assignee, as assignee, as provided in Section 9.07; (ii) may consult
with legal counsel (including counsel for the Borrower), independent public
accountants and other experts selected by it and shall not be liable for any
action taken or omitted to be taken in good faith by it in accordance with the
advice of such counsel, accountants or experts; (iii) shall not have any duty to
ascertain or to inquire as to the performance or observance of any of the terms,
covenants or conditions of any Loan Document on the part of the Borrower or to
inspect the property (including the books and records) of the Borrower; and (iv)
shall not incur any liability under or in respect of any Loan Document by acting
upon any notice, consent, certificate or other instrument or writing (which may
be by telegram, telecopy, cable or telex) believed by it to be genuine and
signed or sent by the proper party, or parties.
(b) The Administrative Agent (i) does not make any warranty or
representation to any Lender and shall not be responsible to any Lender for the
accuracy or completeness of the Confidential Information, warranties or
representations made in or in connection with the Loan Documents and (ii) shall
not be responsible to any Lender for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of any Loan Document or any
other instrument or document furnished pursuant hereto.
(c) The Administrative Agent has no duties hereunder or under the other
Loan Documents that are not specifically set forth herein or therein.
SECTION 8.03 Administrative Agent and Affiliates. With respect to its
Commitments, the Advance made by it and the Note issued to it, the
Administrative Agent shall have the same rights and powers under the Loan
Documents as any other Lender and may exercise the same as though it were not
the Administrative Agent; and the term "Lender" or "Lenders" shall, unless
otherwise expressly indicated, include the Administrative Agent in its
individual capacity as Lender. The Administrative Agent and its Affiliates may
accept deposits from, lend money to, act as trustee under indentures of, accept
investment banking engagements from and generally engage in any kind of business
with the Borrower, any of its Subsidiaries and any Person who may do business
with or own securities of the Borrower or any of its Subsidiaries, all as if
they were not the Administrative Agent, and without any duty to account therefor
to the Lenders. Each Lender acknowledges that, pursuant to such activities, the
Administrative Agent and its Affiliates may receive information regarding the
Borrower and its Affiliates (including information that may be subject to
confidentiality obligations in favor of the Borrower or such Affiliate) and
acknowledges that the Administrative Agent shall be under no obligation to
provide such information to it.
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SECTION 8.04 Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon the Administrative Agent or any other
Lender and based on the financial statements referred to in Section 4.05 and
such other documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement.
SECTION 8.05 Indemnification. Each Lender agrees to indemnify the
Administrative Agent (to the extent not promptly reimbursed by the Borrower),
ratably according to the principal amount of the Note then held by such Lender
(or if no Notes are at the time outstanding, ratably according to the amounts of
its Commitment), from and against any and all claims, damages, losses,
liabilities and expenses (including, without limitation, reasonable fees and
expenses of counsel) that are actually incurred by or asserted or awarded
against the Administrative Agent, in each case arising out of or in connection
with or in any way relating to the Loan Documents or any action taken or omitted
by the Administrative Agent under the Loan Documents; provided, however, that no
Lender shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from the Administrative Agent's gross negligence or willful
misconduct. Without limitation of the foregoing, each Lender agrees to reimburse
the Administrative Agent promptly upon demand for such Lender's ratable share of
any costs and expenses payable by the Borrower to the Administrative Agent under
Section 9.04, to the extent that the Administrative Agent is not promptly
reimbursed for such costs and expenses by the Borrower.
SECTION 8.06 Successors to Administrative Agent. The Administrative Agent
may at any time assign the rights and obligations hereunder to any of its
Affiliates, provided that the Administrative Agent, or a Person owning a
majority of the capital stock of the Administrative Agent, owns a majority of
the capital stock of such Affiliate, or such Affiliate owns a majority of the
capital stock of the Administrative Agent. The Administrative Agent may resign
at any time by giving written notice thereof to the Lenders and the Borrower and
may be removed at any time with or without cause by the Required Lenders. Upon
any such resignation or removal, the Borrower, after consultation with the
Required Lenders, shall have the right to appoint a successor Administrative
Agent to the Administrative Agent. If no such successor Administrative Agent
shall have been so appointed, and shall have accepted such appointment, within
30 days after such retiring Administrative Agent's giving of notice of
resignation or the Required Lenders' removal of the retiring Administrative
Agent, then such retiring Administrative Agent may, after consultation with the
Lenders and the Borrower, appoint a successor Administrative Agent to such
Administrative Agent, which shall be an Eligible Assignee or commercial bank
organized under the laws of the United States or Mexico, or of any State thereof
and having a combined capital and surplus of at least U.S.$250,000,000. Upon the
acceptance of any appointment as the Administrative Agent hereunder by such a
successor Administrative Agent, such successor Administrative Agent shall
succeed to and become vested with all the rights, powers, discretion, privileges
and duties of such retiring Administrative Agent, and such retiring
Administrative Agent shall be discharged from its duties and obligations under
the Loan Documents. After the Administrative Agent's resignation or removal
hereunder as such Administrative Agent, the provisions of this Article VIII
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was the Administrative Agent under this Agreement.
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SECTION 8.07 Documentation Agent; Syndication Agent; Arrangers. The
Documentation Agent, the Syndication Agent, the Lead Arranger and the Arrangers,
in their respective capacities as such, shall have no duties, responsibilities
or liabilities under any Loan Document and shall not have a fiduciary
relationship with any Lender.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01 Amendments, Etc. No amendment or waiver of any provision of
this Agreement, the Notes or any other Loan Documents, nor consent to any
departure by the Borrower therefor, shall in any event be effective unless the
same shall be in writing and signed by the Borrower and the Required Lenders,
and then such waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given; provided, however that no
amendment, waiver or consent shall, unless in writing and signed by all Lenders,
do any of the following: (i) change the percentage of the Commitments or of the
aggregate unpaid principal amount of the Notes, or the number of Lenders, that
shall be required for the Lenders or any of them to take any action hereunder or
under any other Loan Document; (ii) amend, modify or waive this Section 9.01 or
Section 6.01(a); (iii) increase the Commitments of the Lenders; (iv) reduce the
principal of, or interest on (including, without limitation, the rate of
interest), the Notes or any fees or other amounts payable hereunder; or (v)
postpone the Maturity Date or any date fixed for any payment of interest on the
Notes or any fees or other amounts payable hereunder; and provided, however,
that no amendment, waiver or consent shall, unless in writing and signed by the
Administrative Agent in addition to the Lenders required above to take such
action, affect the rights or duties of the Administrative Agent under this
Agreement or any Note.
SECTION 9.02 Notices, Etc. All notices and other communications provided
for hereunder shall be in writing and in English (including telegraphic,
facsimile or telex communication) and faxed, telexed or delivered, if to a
Credit Party, at its address set forth opposite its signature on the signature
pages hereto; if to any Lender, at its Lending Office specified opposite its
name on Annex I hereto or in the Assignment and Acceptance pursuant to which it
became a Lender; and if to the Administrative Agent, at its address set forth
opposite its signature on the signature pages hereto; or, as to a Credit Party
or the Administrative Agent, at such other address as shall be designated by any
such party in a written notice to the other parties and, as to each other party,
at such other address as shall be designated by such party in a written notice
to the Borrower and the Administrative Agent. All such notices and
communications shall, when faxed or telexed, be effective when transmitted by
facsimile or confirmed by telex answerback, respectively, except that notices
and communications to the Administrative Agent pursuant to Articles II, III or
VIII shall not be effective until received by the Administrative Agent.
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SECTION 9.03 No Waiver, Remedies. No failure on the part of any Lender or
the Administrative Agent to exercise, and no delay in exercising, any right
hereunder or under any Note or any other Loan Document shall operate as a waiver
thereof; nor shall any single or partial exercise of any such right preclude any
other or further exercise thereof or the exercise of any other right. The
remedies herein and therein provided are cumulative and not exclusive of any
remedies provided by law.
SECTION 9.04 Costs, Expenses and Indemnification.
(a) The Borrower agrees to pay on demand (whether or not the transactions
contemplated by this Agreement are consummated) (i) all reasonable and
documented costs and out-of-pocket expenses of the Administrative Agent and the
Lead Arranger in connection with the preparation, execution, delivery,
administration, syndication, modification and amendment of the Loan Documents,
and the reasonable fees and expenses of counsel with respect thereto pursuant to
the Fee Letter, and (ii) all reasonable and documented costs and out-of-pocket
expenses of the Administrative Agent and the Lenders in connection with the
enforcement of the Loan Documents, whether in any action, suit or litigation,
any bankruptcy, insolvency or other similar proceeding affecting creditors'
rights generally or otherwise (including, without limitation, the reasonable
fees and expenses of counsel for the Administrative Agent and each Lender with
respect thereto).
(b) The Borrower agrees to indemnify and hold harmless the Administrative
Agent and each Lender and each of their Affiliates and their officers,
directors, employees, agents and advisors (each, an "Indemnified Party") from
and against any and all claims, damages, losses, liabilities and expenses
(including, without limitation, reasonable and documented fees and expenses of
counsel and settlement costs) (excluding, however, consequential damages) that
are actually incurred by or asserted or awarded against any Indemnified Party,
in each case arising out of or in connection with or by reason of, or in
connection with the preparation for a defense of, any investigation, litigation
or proceeding arising out of, related to or in connection with (i) the
Borrower's use of the proceeds of any Advance, (ii) the actual or alleged
presence of Hazardous Materials on any property of the Borrower or any of its
Subsidiaries or any Environmental Action relating in any way to the Borrower or
any of its Subsidiaries or (iii) the Facility or Loan Documents or any
Indemnified Party's role in connection therewith, in each case whether or not
such investigation, litigation or proceeding is brought by the Borrower or any
of its Subsidiaries, directors, shareholders or creditors or an Indemnified
Party, whether or not any Indemnified Party is otherwise a party thereto and
whether or not the transactions contemplated hereby are consummated, except to
the extent such claim, damage, loss, liability or expense is found by a court of
competent jurisdiction to have resulted from such Indemnified Party's gross
negligence or willful misconduct.
(c) If the Borrower fails to pay when due any costs, expenses or other
amounts payable by it under any Loan Document, including, without limitation,
fees and expenses of counsel and indemnities, such amount may be paid on behalf
of the Borrower by the Administrative Agent or any Lender, in its sole
discretion, and such amount shall be reimbursed by the Borrower.
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SECTION 9.05 Right of Set-off. Upon the occurrence and during the
continuance of an Event of Default arising under Section 6.01(a), each Lender is
hereby authorized at any time and from time to time, to the fullest extent
permitted by law, to set off and otherwise apply any and all deposits (general
or special, time or demand, provisional or final, matured or unmatured, in any
currency) at any time held and other indebtedness at any time owing by such
Lender to or for the credit or the account of any Credit Party against any and
all of the Obligations of the Credit Parties now or hereafter existing under
this Agreement and the Note held by such Lender. Each Lender agrees promptly to
notify the Borrower after any such set-off and application; provided, however,
that the failure to give such notice shall not affect the validity of such
set-off and application. The rights of each Lender under this Section 9.05 are
in addition to other rights and remedies (including, without limitation, other
rights of set-off) that such Lender may have.
SECTION 9.06 Binding Effect. This Agreement shall become effective on the
date (the "Effective Date") on which the Agreement shall have been executed by
the Borrower, the Guarantors, the Lead Arranger, the Arrangers, the
Documentation Agent, the Syndication Agent and the Administrative Agent and when
the Administrative Agent shall have been notified by each Lender that such
Lender has executed it and thereafter shall be binding upon and inure to the
benefit of the Borrower, the Administrative Agent, the Lead Arranger, the
Arrangers, the Documentation Agent and the Syndication Agent and each Lender and
their respective successors and assigns, except that the Borrower shall not have
the right to assign its rights hereunder or any interest herein without the
prior written consent of all of the Lenders.
SECTION 9.07 Assignments and Participations.
(a) Each Lender may assign to one or more Eligible Assignees all or a
portion of its rights and obligations under this Agreement (including, without
limitation, all or a portion of the Advance owing to it and the Note held by
it); provided, however, that (i) each such assignment shall be of a uniform, and
not a varying, percentage of all rights and obligations under this Agreement,
(ii) except in the case of an assignment to a Person that, immediately prior to
such assignment, was a Lender or an assignment of all of a Lender's rights and
obligations under this Agreement, the aggregate amount of the Advance of the
assigning Lender being assigned pursuant to each such assignment (determined as
of the date of the Assignment and Acceptance with respect to such assignment)
shall in no event be less than U.S.$5,000,000 and increments of U.S.$2,000,000
in excess thereof, and (iii) the parties to each such assignment shall execute
and deliver to the Administrative Agent, for its acceptance (such acceptance not
to be withheld if the conditions set forth above in this Section 9.07 are
satisfied) and recording in the Register, an Assignment and Acceptance, together
with any Note subject to such assignment and a processing and recordation fee of
U.S.$3,000. Upon such execution, delivery, acceptance and recording, from and
after the effective date specified in such Assignment and Acceptance, (x) the
assignee thereunder shall be a party hereto and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to such Assignment and
Acceptance, have the rights and obligations of a Lender hereunder and (y) the
Lender assignor thereunder shall, to the extent that rights and obligations
hereunder have been assigned by it pursuant to such Assignment and Acceptance,
relinquish its rights and be released from its obligations under this Agreement
(and, in the case of an Assignment and Acceptance covering all or the remaining
portion of an assigning Lender's rights and obligations under this Agreement,
such Lender shall cease to be a party hereto).
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(b) By executing and delivering an Assignment and Acceptance, the Lender
assignor thereunder and the Eligible Assignee thereunder confirm to and agree
with each other and the other parties hereto as follows: (i) other than as
provided in such Assignment and Acceptance, such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or any other Loan Document or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement, any other
Loan Document, or any other instrument or document furnished pursuant hereto or
thereto; (ii) such assigning Lender makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the
Borrower or any of its Subsidiaries or with respect to the performance or
observance by the Borrower or any of its Subsidiaries of any of its obligations
under this Agreement or any other Loan Document or any other instrument or
document furnished pursuant hereto or thereto; (iii) such Eligible Assignee
confirms that it has received a copy of this Agreement and each other Loan
Document, together with copies of the financial statements referred to in
Section 4.05 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance; (iv) such Eligible Assignee will, independently and
without reliance upon the Administrative Agent, such assigning Lender or any
other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement; (v) such Eligible Assignee confirms that
it is an Eligible Assignee; (vi) such Eligible Assignee appoints and authorizes
the Administrative Agent to take such action as agent on its behalf and to
exercise such powers and discretion under this Agreement as are delegated to the
Administrative Agent by the terms hereof, together with such powers and
discretion as are reasonably incidental thereto; (vii) such Eligible Assignee
agrees to be bound by the terms of this Agreement; and (viii) such Eligible
Assignee represents and warrants that on and as of the date of the Assignment
and Acceptance it either (i) is a Registered Bank, and is a resident (or its
principal office is a resident, if such Assignee's applicable Lending Office is
a branch or agency of such Assignee) for tax purposes in a jurisdiction with
which Mexico has in effect a treaty for the avoidance of double taxation, or
(ii) is a Mexican Bank.
(c) The Administrative Agent shall maintain at its address referred to in
Section 9.02 a copy of each Assignment and Acceptance delivered to and accepted
by it and a register for the recordation of the names and addresses of the
Lenders and the principal amount of the Advance owing to each Lender from time
to time (the "Register"). The entries in the Register shall be conclusive and
binding for all purposes, absent manifest error, and the Borrower, the
Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register as a Lender hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the Borrower or any
Lender at any reasonable time and from time to time upon reasonable prior
notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an Eligible Assignee, together with any Note subject to
such assignment, the Administrative Agent shall, if such Assignment and
Acceptance has been completed and is in substantially the form of Exhibit F
hereto, (i) accept such Assignment and Acceptance, (ii) record the information
contained therein in the Register and (iii) give prompt notice thereof to the
Borrower. Within five Business Days after its receipt of such notice, the
Borrower shall execute and deliver to the Administrative Agent in exchange for
the surrendered Note a new Note payable to the order of such Eligible Assignee
in an amount equal to the Advance assumed by it pursuant to such Assignment and
Acceptance and, if the assigning Lender has retained an Advance hereunder, a new
Note payable to the order of the assigning Lender in an amount equal to the
Advance retained by it hereunder. Such new Note shall be in an aggregate
principal amount equal to the aggregate principal amount of such surrendered
Note, shall be dated the effective date of such Assignment and Acceptance and
shall otherwise be in substantially the form of Exhibit A hereto.
52
(e) Each Lender may sell participations in or to all or a portion of its
rights and obligations under this Agreement (including, without limitation, all
or a portion of its Advance owing to it and the Note held by it); provided,
however that (i) such Lender's obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations, (iii) such Lender shall remain
the holder of any such Note for all purposes of this Agreement, (iv) the
Borrower, the Administrative Agent and the other Lenders shall continue to deal
solely and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement, and (v) no participant under any such
participation shall have any right to (x) be compensated for Taxes or increased
costs in excess of such Lender (or a Registered Lender in the case of EDC) and
(y) approve any amendment or waiver of any provision of any Loan Document, or
any consent to any departure by any Borrower therefrom, except to the extent
that such amendment, waiver or consent would reduce the principal of, or
interest on, the Notes or any fees or other amounts payable hereunder, in each
case to the extent subject to such participation, postpone the Maturity Date or
any date fixed for any payment of interest on the Notes or any fees or other
amounts payable hereunder, in each case to the extent subject to such
participation.
(f) Upon notice to the Administrative Agent and the Borrower and
notwithstanding any other provision set forth in this Agreement, any Lender may
at any time create a security interest in all or any portion of its rights under
this Agreement (including, without limitation, the Advance owing to it and the
Note held by it) in favor of any Federal Reserve Bank in accordance with
Regulation A of the Board of Governors of the U.S. Federal Reserve System.
(g) No transferee of any Lender's rights under this Agreement or any other
Loan Document through assignment, participation or otherwise shall be entitled
to receive any greater payment under Sections 2.08, 2.10, 2.12 or 9.04 than such
Lender would have been entitled to receive with respect to the rights
transferred.
SECTION 9.08 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the internal laws of the State of New York.
SECTION 9.09 Execution in Counterparts; Integration. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by facsimile transmission shall be effective as delivery of a manually
executed counterpart of this Agreement. This Agreement, together with the Notes,
the other Loan Documents and the Fee Letter, constitute the entire agreement and
understanding among the parties hereto and supersedes any and all prior
agreements and understanding, oral or written, relating to the subject matter
hereof. In the event of any conflict between the provisions of this Agreement
and the provisions of any of the Notes, the provisions of this Agreement shall
prevail.
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SECTION 9.10 Confidentiality. Neither the Administrative Agent nor any
Lender shall disclose any Confidential Information to any Person without the
consent of the Borrower, other than (a) to the Administrative Agent's or such
Lender's officers, directors, employees, agents and advisors to the extent
necessary and to actual or prospective Eligible Assignees and participants, and
then only so long as such Person agrees to keep confidential such information,
(b) as required by any, law, rule or regulation or judicial process and (c) as
requested or required by any state, federal or foreign authority or examiner
regulating banks or banking.
SECTION 9.11 Judgment Currency.
(a) If, for the purposes of obtaining judgment in any court, it is
necessary to convert a sum due hereunder or under the Notes or any other Loan
Document in Dollars into another currency (the "Other Currency"), the parties
hereto agree, to the fullest extent that they may effectively do so, that the
rate of exchange used shall be that at which in accordance with normal banking
procedures the Administrative Agent could purchase Dollars in New York City on
the Business Day preceding that on which final judgment is given.
(b) The obligation of the Credit Parties in respect of any sum due in
Dollars from any of them to any Lender or the Administrative Agent hereunder or
under the Note held by such Lender shall, notwithstanding any judgment in any
Other Currency, be discharged only to the extent that, on the Business Day
following receipt by such Lender or the Administrative Agent (as the case may
be) of any sum adjudged to be so due in such Other Currency such Lender or the
Administrative Agent (as the case may be) may, in accordance with normal banking
procedures, purchase Dollars with such Other Currency; if the amount of the
Dollars so purchased is less than the sum originally due to such Lender or the
Administrative Agent (as the case may be) in Dollars, each of the Credit Parties
agrees, as a separate obligation and notwithstanding such judgment, to indemnify
such Lender or the Administrative Agent (as the case may be) against such loss,
and if the amount of the Dollars so purchased exceeds the sum originally due to
any Lender or the Administrative Agent (as the case may be) in Dollars, such
Lender or the Administrative Agent (as the case may be) agrees to remit to the
Borrower such excess.
SECTION 9.12 Consent to Jurisdiction.
(a) Each of the Persons parties hereto hereby irrevocably submits to the
jurisdiction of any New York State or Federal court sitting in the borough of
Manhattan in New York City and any appellate court from any thereof and to the
courts of its own corporate domicile with respect to actions brought against it
as a defendant in any action or proceeding arising out of or relating to this
Agreement or any other Loan Document to which such Person is or is to become a
party, and such Person hereby irrevocably agrees that all claims in respect of
any such action or proceeding may be heard and determined in such New York State
court or in such Federal court. Each of the Persons parties hereto hereby
irrevocably waives, to the fullest extent it may effectively do so, any
objection it may now or hereafter have as to the venue of any such action or
proceeding brought in any such court or that such court is an inconvenient
forum. Each of the Credit Parties hereby irrevocably appoints CT Corporation
System, Inc. (the "Process Agent"), with an office on the date hereof at 000
Xxxxxx Xxxxxx, 13th Floor, Xxx Xxxx, XX 00000, Xxxxxx Xxxxxx, as its agent to
receive on its behalf and in respect of its property, service of copies of the
summons and complaint and any other process which may be served in any such
action or proceeding. Such service may be made by delivering a copy of such
process to such Credit Party in care of the Process Agent at the Process Agent's
above address, and each of the Credit Parties hereby irrevocably authorizes and
directs the Process Agent to accept such service on its behalf. Each of the
Credit Parties agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law.
54
(b) Nothing in this Section shall affect the right of any Lender or the
Administrative Agent to serve legal process in any other manner permitted by law
or affect the right of any Lender or the Administrative Agent to bring any
action or proceeding against the Borrower, the Guarantors or their respective
property in the courts of other jurisdictions.
(c) To the extent that any Credit Party has or hereafter may acquire any
immunity from jurisdiction of any court or from any legal process (whether
through service or notice, attachment prior to judgment, attachment in aid of
execution, execution or otherwise) with respect to itself or its property, such
Credit Party hereby irrevocably waives such immunity in respect of its
obligations under this Agreement and the other Loan Documents to which it is or
becomes a party.
SECTION 9.13 Survival. All indemnities set forth in this Agreement,
including, without limitation, Sections 2.10, 8.05, 9.04(b) and 9.11(b), shall
survive the execution and delivery of this Agreement and the other Loan
Documents (notwithstanding any failure of the Facility to close) and the making
and the repayment of the Advances until such time as all Obligations shall have
been paid in full.
SECTION 9.14 WAIVER OF JURY TRIAL. EACH OF THE CREDIT PARTIES, THE
ADMINISTRATIVE AGENT AND EACH LENDER HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY LAW, ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR
RELATING TO ANY OF THE LOAN DOCUMENTS, THE ADVANCES OR THE ACTIONS OF THE
ADMINISTRATIVE AGENT OR ANY LENDER IN THE NEGOTIATION, ADMINISTRATION,
PERFORMANCE OR ENFORCEMENT THEREOF.
SECTION 9.15 Limitation on Liability. Each of the Credit Parties hereby
waives, releases and agrees not to xxx the Administrative Agent or any Lender
upon any claim for any special, indirect, consequential or punitive damages
suffered by any Credit Party in connection with, arising out of, or in any way
related to the Loan Documents or the relationship established by the Loan
Documents, or any act, omission or event occurring in connection therewith,
unless it is determined by a judgment of a court of competent jurisdiction that
such damages were the result of acts or omissions on the part of the
Administrative Agent or such Lender constituting gross negligence or willful
misconduct.
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IN WITNESS WHEREOF, the parties hereto have caused their duly authorized
officers to execute and deliver this Agreement as of the date first above
written.
Address:
-------
General Xxxxx 601 Poniente, Colonia Bella FEMSA EMPAQUES, S.A. DE C.V.,
Vista 1er Piso as Borrower
Monterrey, N.L. Mexico, C.P. 64410
Attention: Xxxxxx Xxxxxxxx/Xxxxx Xxxxxxxxxx
Telephone: 000-00-000-000-0000 / 011-52- By:__________________________
000-000-0000 Name:_____________________
Facsimile: 011-52-818-328-6893 Title:____________________
By:__________________________
Name:_____________________
Title:____________________
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Address:
-------
General Xxxxx 601 Poniente, Colonia Bella FABRICAS MONTERREY, S.A. DE C.V.,
Vista 1er Piso as Guarantor
Monterrey, N.L. Mexico, C.P. 64410
Attention: Xxxxxx Xxxxxxxx/Xxxxx Xxxxxxxxxx
Telephone: 000-00-000-000-0000 / 011-52-
000-000-0000 By:______________________________
Facsimile: 011-52-818-328-6893 Name:_________________________
Title:________________________
By:______________________________
Name:_________________________
Title:________________________
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Address:
-------
General Xxxxx 601 Poniente, Colonia Bella SILICES DE VERACRUZ, S.A. DE C.V.,
Vista 1er Piso as Guarantor
Monterrey, N.L. Mexico, C.P. 64410
Attention: Xxxxxx Xxxxxxxx/Xxxxx Xxxxxxxxxx
Telephone: 000-00-000-000-0000 / 011-52-
000-000-0000 By:_______________________________
Facsimile: 011-52-818-328-6893 Name:__________________________
Title: ________________________
By:_______________________________
Name:__________________________
Title:_________________________
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Address:
--------
1345 Avenue of the Americas BBVA SECURITIES INC.,
45th Floor as Lead Arranger
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxx
Telephone: x0 (000) 000 0000
Facsimile: x0 (000) 000 0000 By:__________________
Name:_____________
Title:____________
By:__________________
Name:_____________
Title:____________
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Address:
-------
000 Xxxxxxxxx Xxxx XXXXXXXXXX X.X.,
Xxxxxx, Xxxxxxxxxxxxx, XXX as Arranger (BankBoston is the name
Attention: Xxxxxx Xxxxxxxxx/Xxxxx Xxxxxx by which Fleet National Bank operates
Telephone: 000-000-0000 in Latin America)
By:___________________________________
Name:______________________________
Title:_____________________________
By:___________________________________
Name:______________________________
Title:_____________________________
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Address:
-------
000 X'Xxxxxx Xxxxxx XXXXXX XXXXXXXXXXX XXXXXX,
Xxxxxx, Xxxxxxx, Xxxxxx as Arranger
Attention: Denis L'Heureux/Xxxxx XxxXxxxxx
Telephone: x0 (000) 000 0000
Facsimile: x0 (000) 000 0000 By:_______________________
Name:__________________
Title:_________________
By:_______________________
Name:__________________
Title:_________________
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Address:
-------
Xxxxxx Urales #620, 3er Piso BBVA BANCOMER, S.A., INSTITUCION
Colonia Lomas de Chapultepec DE BANCA MULTIPLE, GRUPO
Mexico D.F. 11000 FINANCIERO BBVA BANCOMER,
Attention: Xxxxxxxxxx Xxxxxx as Administrative Agent
Telephone: 000-00-000-000-0000
Facsimile: 011-52-555-201-2054
By:_____________________________
Name:________________________
Title:_______________________
By:_____________________________
Name:________________________
Title:_______________________
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Address:
-------
000 X'Xxxxxx Xxxxxx XXXXXX XXXXXXXXXXX XXXXXX,
Xxxxxx, Xxxxxxx, Xxxxxx as Syndication Agent
Attention: Denis L'Heureux/Xxxxx XxxXxxxxx
Telephone: x0 (000) 000 0000
Facsimile: x0 (000) 000 0000 By:_______________________
Name:__________________
Title:_________________
By:_______________________
Name:__________________
Title:_________________
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Address:
-------
000 Xxxxxxxxx Xxxx XXXXXXXXXX X.X.,
Xxxxxx, Xxxxxxxxxxxxx, XXX as Documentation Agent (BankBoston
Attention: Xxxxxx Xxxxxxxxx/Xxxxx Xxxxxx is the name by which Fleet National
Telephone: 000-000-0000 Bank operates in Latin America)
By:__________________________________
Name:_____________________________
Title:____________________________
By:__________________________________
Name:_____________________________
Title:____________________________
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Address:
-------
Xxxxxx Urales #620, 3er Piso BBVA BANCOMER, S.A., INSTITUCION
Colonia Lomas de Chapultepec DE BANCA MULTIPLE, GRUPO
Mexico D.F. 11000 FINANCIERO BBVA BANCOMER,
Attention: Xxxxxxxxxx Xxxxxx as Lender
Telephone: 000-00-000-000-0000
Facsimile: 011-52-555-201-2054
By:_____________________________
Name:________________________
Title:_______________________
By:_____________________________
Name:________________________
Title: ______________________
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Address:
-------
000 Xxxxxxxxx Xxxx XXXXXXXXXX X.X.,
Xxxxxx, Xxxxxxxxxxxxx, XXX as Lender (BankBoston is the name by
Attention: Xxxxxx Xxxxxxxxx/Xxxxx Xxxxxx which Fleet National Bank operates in
Telephone: 000-000-0000 Latin America)
By:___________________________________
Name:______________________________
Title:_____________________________
By:___________________________________
Name:______________________________
Title:_____________________________
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Address:
-------
000 X'Xxxxxx Xxxxxx XXXXXX XXXXXXXXXXX XXXXXX,
Xxxxxx, Xxxxxxx, Xxxxxx as Lender
Attention: Denis L'Heureux/Xxxxx XxxXxxxxx
Telephone: x0 (000) 000 0000
Facsimile: x0 (000) 000 0000 By:________________________
Name:___________________
Title:__________________
By:________________________
Name:______________________
Title:_____________________
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