EXHIBIT 4.32
TRANSLATION PURPOSES ONLY
LOAN AGREEMENT (THE "AGREEMENT") ENTERED INTO BY AND BETWEEN INNOVA, S DE X.X.
DE C.V. AS BORROWER (THE "BORROWER") REPRESENTED IN THIS ACT BY XXXXXXXXX
XXXXXXX PENNA XX XXXXX AND XXXXX XXXXXXX XXXXXXXXX XXXXXX; AS GUARANTORS, GRUPO
TELEVISA, S.A. ("TELEVISA") REPRESENTED IN THIS ACT BY XX. XXXXXXX XXXXXXXXX
SANTA XXXX AND XX. XXXX XXXXXXXXX XXXXXXX XXXXXX AND NEWS CORPORATION
("NEWSCORP") REPRESENTED IN THIS ACT BY XX. XXXXXXXX X. XXXXXX, (EACH, TELEVISA
AND NEWSCORP A "GUARANTOR" AND JOINTLY THE "GUARANTORS"); AND HSBC MEXICO, S.A.,
INSTITUCION DE BANCA MULTIPLE, GRUPO FINANCIERO HSBC (THE "LENDER" OR "HSBC")
REPRESENTED IN THIS ACT BY XX. XXXXX XXXXX DE LA XXXXX, IN ACCORDANCE WITH THE
FOLLOWING RECITALS AND CLAUSES:
RECITALS
I. The Borrower declares that:
(a) Incorporation; Corporate Purpose. It is a limited liability,
variable-capital company duly incorporated pursuant to the laws of the United
Mexican States ("Mexico"), duly authorized in accordance with its corporate
purpose to execute this Agreement and all other Credit Documents, to subscribe
Promissory Notes, to undertake the obligations set forth in the Credit
Documents, as well as to carry out its activities in the manner in which they
are presently carried out. A certified copy of the public deed that contains the
outstanding by-laws of the Borrower is attached hereto as Exhibit A.
(b) Capacity; Authorizations; Enforceable Obligations. (i) The execution
of this Agreement and all other Credit Documents, as well as the subscription of
the Promissory Notes have been legally authorized by the Borrower's Board of
Managers and are contemplated in its corporate purpose, and the Borrower, for
such purposes does not require any additional authorization (corporate,
governmental or of any other nature) in accordance with its by-laws.
(ii) This Agreement and all other Credit Documents constitute valid
obligations of the Borrower; enforceable against him pursuant to their terms,
except that such enforceability may be affected by laws related to insolvency or
bankruptcy matters.
(iii) Its legal representatives, Xx. Xxxxxxxxx Xxxxxxx Penna Xx
Xxxxx and Xxx. Xxxxx Xxxxxxx Xxxxxxxxx Xxxxxx have the legal capacity and
authority to execute this Agreement and the Promissory Notes in name and
representation of the Borrower, and that as of the date hereof, such faculties
have not been revoked or limited in any way. A certified copy of the public deed
that contains the powers-of-attorney granted by the Borrower to Xx. Xxxxxxxxx X.
Xxxxx and Xx. Xxxxxx Xxxxxxxx Xxxxx as well as the certificate issued by the
secretary of the Borrower's Board of Mangers, by means of which it is certified
that in the session of such board dated November 4, 2004 the execution of this
Agreement by the legal representatives above mentioned are attached hereto as
Exhibit B.
(c) Non-performance. Nor the signature or compliance of the Credit
Documents nor the accomplishment of the transactions contemplated in them,
violate or may cause the
non-performance according to, any agreement in which the Borrower acts as a
party, the Borrower's by-laws or to its knowledge, any Legal Requirement
applicable to the Borrower.
(d) Consents and Approvals. It does not require any governmental or third
party authorization for the execution of this Agreement or the other Credit
Documents, nor for the subscription of the Promissory Notes, or for the validity
or enforceability of such documents or for the compliance of its obligations
pursuant the same.
(e) Financial Information. (i) Its audited consolidated financial
statements for the year ended December 31, 2003 and its internal consolidated
financial statements as of September 30, 2004, reflect in a truthful, sufficient
and reasonable manner its consolidated financial situation in such dates, and
they have been prepared pursuant to Mexican GAAP, applied in a consistent
manner. Copies of such financial statements, as well as the external auditor's
report of the audited consolidated financial statements for the year ended
December 31, 2003 are attached hereto as Exhibit C.
(ii) Since September 30, 2004 there has been no event or
circumstance, which has had or may reasonably be considered to have a Relevant
Adverse Effect.
(f) Litigations. As of the date of execution of this Agreement there are
no actions nor pending litigations, including conflicts of civil, commercial,
environmental, tax, labor, administrative nature, or litigations of any nature,
before any court, Governmental Authority or arbitrator, including without
limitation the Federal Telecommunications Commission or the Ministry of
Communications and Transports, that affect or that reasonably may affect the
Borrower's operation or consolidated financial situation, or that affect or that
reasonably may affect the compliance of the Borrower's obligations pursuant this
Agreement or the Promissory Notes, and in which the demanded amount exceeds
USD$50,000,000.00 (fifty million dollars 00/100, US Cy.) or its equivalent in
any other currency.
(g) Payment Preference; Liens. (i) Its payment obligations under this
Agreement and the Promissory Notes are at the same level, in regard to
preference and rank, and they are not subordinated in relation to any other
Borrower's unsecured obligation of payment except for those obligations that
have preference by law.
(ii) The only Permitted Liens are those constituted over the assets,
property of the Borrower and its Subsidiaries, which are necessary to carry out
the main business of the Borrower.
(h) Subsidiaries. All of the Borrower's Subsidiaries are listed in Exhibit
E attached hereto.
(i) Assets' Property. (a) Except for situations which, jointly, may not
reasonably be considered to have a Relevant Adverse Effect, the Borrower and its
Subsidiaries are the legitimate owners, holders or lessees, as the case may be,
of all the real estate or personal property used in its transactions, and none
of such assets are subject to any Lien, except for Permitted Liens and, (b) the
Borrower maintains insurances over such assets according to the terms
established in section (e) of Clause Eleventh herein.
(j) Taxes. The Borrower and its Subsidiaries have submitted all of the tax
returns which they are obliged to submit according to any Legal Requirement and
have paid the corresponding contributions, except for those not due and appealed
in good faith through the corresponding appropriate procedures, and with respect
to those with which the Borrower maintains sufficient reserve funds as required
by Legal Demand or the Mexican GAAP and those which's non statement or payment
will not reasonably cause a Relevant Adverse Effect. The determination of tax
liabilities, actualizations and reserve funds registered in the accounting
registry books of the Borrower regarding taxes or any other payment liability of
governmental nature are, in the Borrower's opinion, accurate in all its
significant aspects.
(ii) The execution of this Agreement is not a legal or fact
situation contemplated in the current tax laws to the execution date of this
Agreement, that arise in the imposition of any tax, contribution, deduction,
charge, government charge, withholding or any other tax liability, in or imposed
by Mexico or any other political subdivision or any tax authority of the same or
in the same.
(k) Compliance with the Law. It is in compliance with all of the
applicable Legal Requirements, except those which's noncompliance does not cause
a Relevant Adverse Effect in the Borrower or which's application is being
appealed in good faith and by the appropriate corresponding procedures. The
execution of this Agreement, the subscription of the Promissory Notes and the
compliance of its obligations does not contravene any Legal Requirement
applicable to the Borrower that may have a Relevant Adverse Effect. As of the
date of this Agreement, it is not in non-compliance with any of its contractual
obligations, which may cause a Relevant Adverse Effect.
(l) Provided Information. All of the information that the Borrower
provided prior to the execution of this Agreement to the Lender, for purposes
of, or in relation with this Agreement, (other than the financial projections
and other planning information prepared over reasonable basis and with good
faith by the Borrower, and conditioned by the presumptions expressed at the time
of its delivery or submission), as well as the information provided after this
date, is and shall be correct and accurate in every significant aspect in the
date of its delivery, certification, or whenever it is declared, and shall not
omit or will omit, as the case may be, any element or relevant or necessary
information for the purposes of the recitals hereinabove, or that induces to the
error or its omission causes a Relevant Adverse Effect. The Borrower has
revealed in writing to the Lender each and every fact, that it is aware of, that
may have a Relevant Adverse Effect.
(m) Granting of the Loan; Use of Funds. It has requested from the Lender
the granting of a loan in Mexican currency of an amount up to $1,012,000.00 (one
thousand and twelve million pesos 00/100 Mx. Cy.) which shall be used to
refinance debts that represent a pending amount of USD$88,000,000.00 (eighty
eight million dollars US. Cy.), originated by an issuance of bonds named "Senior
Notes" due in 2007, as well as to cover the expenses related with the execution
of this Agreement, all other Credit documents and the prepayment of the bonds
named "Senior Notes".
(n) Non Defaults or Events of Default. No Default or Event of Default has
occurred nor is occurring.
II. Each of the Guarantors declares, only in the recitals referring to
such Guarantor and not with respect to other Guarantor, that:
(a) Incorporation; Corporate Purpose. (i) Televisa is a corporation duly
incorporated pursuant the laws of Mexico, and (ii) NewsCorp is a company duly
incorporated pursuant the laws of Delaware, United States of America. Are fully
authorized in accordance with their corporate purposes to execute this
Agreement, and to subscribe the Promissory Notes and, in case of Televisa, the
Surety and for the case of NewsCorp, the Corporate Guaranty; and to undertake
the obligations set forth in the Credit Documents in their capacity of
Guarantors, as well as to carry out its activities in the manner in which they
are presently carried out. A certified copy of the public deed that contains the
outstanding by-laws of Televisa, and an extract of the by-laws of NewsCorp,
certified by NewsCorp's secretary, are attached hereto as Exhibit A.
(b) Capacity; Authorizations; Enforceable Obligations. (i) The execution
of this Agreement and all other Credit Documents, as well as the subscription of
the Promissory Notes have been legally authorized by each of the Guarantor and
are contemplated in their corporate purposes and none of the Guarantor requires
any additional authorization (corporate or of any other nature) for such
purposes in accordance with its by-laws.
(ii) This Agreement and all other Credit Documents constitute valid
and enforceable obligations; enforceable against each Guarantor pursuant their
terms, except if such enforceability may be affected by laws related to
insolvency or bankruptcy matters or that they affect the creditors' rights.
(iii) Its legal representatives, Xx. Xxxxxxx Xxxxxxxxx Santa Xxxx
and Xx. Xxxx Xxxxxxxxx Xxxxxxx Xxxxxx for Televisa, and Xx. Xxxxxxxx X. Xxxxxx
for NewsCorp are empowered to execute this Agreement and the Promissory Notes in
name and representation of the corresponding Guarantors, and that as of the date
of this Agreement, such authorizations have not been revoked or limited in any
way. A certified copy of the public deed that contains the powers-of-attorney
granted by Televisa to Xx. Xxxxxxx Xxxxxxxxx Santa Xxxx and Xx. Xxxx Xxxxxxxxx
Xxxxxxx Xxxxxx; and the similar document, pursuant the laws of the domicile of
NewsCorp, which contains the powers of attorney granted by this one to
Xx. Xxxxxxxx X. Xxxxxx, are attached hereto as Exhibit B.
(c) Consents and Approvals. It does not require any governmental or third
party authorization for the execution of this Agreement or, the Surety, in case
of Televisa, and the Corporate Guaranty, for the case of NewsCorp, nor for the
subscription of Promissory Notes, or for the validity or enforceability of such
documents or the compliance of its obligations pursuant the same.
(d) Litigations. As of the date of this Agreement, there are no actions or
no pending litigations, including conflicts of civil, commercial, environmental,
tax, labor or litigations of any nature, before any Governmental Authority or
arbitrator, that, to its understanding, affect or may reasonably affect the
Guarantor's operation or its consolidated financial situation, which might cause
a Relevant Adverse Effect, or that affect or may reasonably affect the
compliance of its obligations set forth in this Agreement, the Promissory Notes,
and the Surety, in case of Televisa, and the Corporate Guaranty, in the case of
NewsCorp, as the case may be.
(e) Financial Information. Its consolidated and audited financial
statements for the as of December 31, 2003, in case of Televisa, and as of June
30, 2003, in case of NewsCorp, which's copies are attached hereto as Exhibit C
reflect in an adequate manner its financial situation consolidated for the
period contemplated in them, and such have been prepared pursuant to Mexican
GAAP, for the case of Televisa and the general accepted accounting principles of
the United States of America for the case of NewsCorp.
(f) Compliance with Agreements. The execution of this Agreement, the
Surety, in case of Televisa and the Corporate Guaranty for the case of NewsCorp,
the subscription of Promissory Notes and the compliance of its obligations set
forth in such documents do not contravene any Legal Requirement applicable to
each one of the Guarantors, any disposition provided in its by-laws or its
contractual obligations, which is deemed that may cause a Relevant Adverse
Effect.
(g) Surety and Guaranty. By virtue of the business, corporate financial
administrative and judicial relations held with the Borrower, it is in their
interest to execute this Agreement with the purpose of granting a Surety, in
case of Televisa, and the Corporate Guaranty, in the case of NewsCorp, but
limited in the Guaranteed Percentages set forth for each of the Guarantors in
Clause Tenth herein, in the terms of the documents attached hereto as Exhibits
E-1 and E-2, respectively, with the purpose of guaranteeing before the Lender
the compliance of all the payment obligations of the Borrower in accordance with
this Agreement.
III. The Lender declares that:
(a) It is a corporation duly incorporated pursuant the laws of Mexico,
fully authorized in accordance with its corporate purpose to execute this
Agreement and the Credit Documents, and to undertake the obligations set forth
in the Credit Documents, as well as to carry out its activities in the manner in
which they are presently carried out. A certified copy of the public deed that
contains the present by-laws of the Lender is attached hereto as Exhibit "A".
(b) The execution of this Agreement and all other Credit Documents, have
been legally authorized by HSBC and do not requires any additional authorization
(corporate, governmental or of any other nature) in accordance with its
by-laws.
(c) This Agreement and all other Credit Documents constitute valid
obligations; enforceable against the Lender pursuant its terms, except if such
enforceability may be affected by laws regarding insolvency or bankruptcy
matters.
(d) Its legal representative, Xx. Xxxxx Xxxxx de la Torre, have the legal
capacity and authority to execute this Agreement and all other Credit Documents
in name and representation of the Lender, and that as of the date of this
Agreement, such authorization
have not been revoked or limited in any way, as evidenced in the copy of the
public deed that contains such faculties, which is attached hereto as Exhibit G.
(e) Nor the signature or compliance of the Credit Documents nor the
consummation of the transactions contemplated in them violate or originate the
nonperformance according to, any agreement in which the Lender acts as a party,
its by-laws or, to its knowledge, any Legal Requirement applicable to the
Lender, except those that reasonably do not cause a Relevant Adverse Effect
according to this Agreement.
(f) It does not require any governmental or third party authorization for
the execution of this Agreement or the other Credit Documents, or for the
validity or enforceability of such documents or the compliance of its
obligations pursuant the same.
(g) As of the date of this Agreement there are no actions or no pending
litigations, including conflicts of civil, commercial, environmental, tax,
labor, or litigations of any nature, before any court, Governmental Authority or
arbitrator, which affect or may reasonably affect the compliance of its
obligations set forth in this Agreement and other Credit Documents.
(h) Over the basis of the recitals of the Borrower and each of the
Guarantors, it is willing and binds to grant the Loan requested by the Borrower
and with respect of which the Guarantors bind, in accordance with the terms and
subject to the conditions herein.
Accordingly, the parties hereto agree the following:
CLAUSES
FIRST. Defined Terms. Capitalized terms shall have the following meanings
for purposes of this Agreement:
"Affiliate" shall mean, with respect to any Person, any other Person,
which, directly or indirectly, through one or more intermediaries, controls to,
is controlled by, or is under common control with, such Person. For purposes of
this definition, "control" shall mean the faculty of determining the
administration and policies of such Person, directly or indirectly, through the
holding interests with voting rights, by agreement or any other means. For the
purposes of this Agreement Televisa, NewsCorp, DirecTV and any other Person that
owns shares or interests in the Borrower, and the corresponding Subsidiaries or
Affiliates of these Persons, shall be considered as Affiliates of Borrower.
"Agreement" shall have the meaning set forth in the preamble of this
Agreement.
"Asset Disbursement" shall mean, for any asset necessary for the business
operation of such Person, any sale, sale and lease back, lease, assignment or
any other disbursement of such asset.
"Assignee" shall have the meaning provided in Clause Twelfth, paragraph
(c)(i) hereof.
"Borrower" shall have the meaning set forth in the preamble of this
Agreement.
"Business Day" shall mean any day in which the credit institutions in
Mexico City carry out operations and that are not authorized to close.
Notwithstanding the above, for purposes of this Agreement, Saturdays or Sundays
and December 31 of every year would not be considered as a Business Day.
"Capital Leases" shall mean, for any Person, all obligations of such
Person to pay rent or other amounts under a lease of (or other agreement
conveying the right to use) movable goods or real estate property, or both, to
the extent such obligations are required to be classified and accounted for as a
Capital Lease on the balance sheet of such Person under Mexican GAAP, in the
understanding that for purposes of this Agreement, the amount of such
obligations shall be the capitalized amount thereof, determined in accordance
with Mexican GAAP.
"Capital Stock" shall mean any and all shares, interests, participations
or other equivalents (however designated) of capital stock of a corporation, any
and all similar ownership interests in a Person (other than a corporation) and
any and all warrants or options to purchase any of the foregoing.
"Consolidated EBITDA" shall mean, for any period (without duplication),
for the Borrower and its Subsidiaries, the sum of consolidated profit
(determined pursuant to Mexican GAAP) of transaction for such period, before
devaluation and amortization, plus incomes resulting from interests.
"Consolidated Financial Expenses" shall mean, for any period (without
duplication) the Consolidated Interest Expenses for such period, excluding the
principal component of rents regarding Capital Lease obligations paid by
Borrower and its Subsidiaries and the interests caused by obligations with
Affiliates and Subsidiaries.
"Consolidated Interest Expenses" shall mean, for any period, the total of
the net expenses caused by interest of the Borrower and its consolidated
Subsidiaries imputable to such period in accordance with Mexican GAAP.
"Consolidated Leverage Rate" shall mean, the Debt to the last day of any
fiscal period of three months, divided by the Consolidated EBITDA to such date
(based on the last four (4) fiscal quarters that end in such quarter).
"Corporate Guaranty" shall mean the agreement named "Corporate Guarantee"
or "Guarantee Agreement" to be executed by NewsCorp ( or any successor or
assignee of NewsCorp as permitted by this Agreement) and the Lender in terms of
Exhibit E-2 hereof and that once signed shall be an integral part of this
Agreement.
"Credit Documents" shall mean this Agreement, the Surety, in case of
Televisa, the Corporate Guaranty for the case of NewsCorp, the Promissory Notes,
and any other document or instrument executed under this Agreement or those
agreed to in writing by Lender and Borrower.
"Debt" means, with respect to any Person, without duplication, (i) all the
payment obligations derived from a loan, (ii) all the obligations set forth in
bonds, commercial
obligations, promissory notes or any similar document, (iii) all the obligations
to pay the deferred purchase price of goods or services which's purchase price
is due after a year, commencing on the date in which the possession of such
goods and on the date in which the services were rendered and that such have
interest costs, (iv) all the obligations of such person as a lessee agree with
Capital Leases, (v) all the third party Debt granted by such Person with a Lien
over any asset of such Person, in the understanding that the amount of such Debt
will be the one resulting from the value of such asset, as such value is
registered in the most resent balance sheet of such Person, (vi) all the
obligations in which such Person incurred in connection with export financing.
Not withstanding the aforementioned, Debt shall not include liabilities related
to: (A) undue accounts derived from the ordinary course of business (including,
without limitation, programmers payments; frequent assets purchase such as
de-codifying boxes, parabolic antennas, "LNBs" dispositives and remote controls;
Masters, distributors and repairers payments; obligation payments in behalf of
satellite or transponders services, etc.), (B) all the obligations (present,
past or futures) which result from the purchase of assets of companies dedicated
to the same line of business of the Borrower or its Subsidiaries, including the
purchase of shares, equities, participations, subscribers lists, systems, among
others, (C) all undue payments which does not have a known financial cost (D)
federal, local, and municipal income tax, value added taxable, assets or any
other Mexican, United States of America or any other jurisdiction taxes,
including withholdings to workers in accordance with the applicable social
security or labor legislation (E) amounts received by the Borrower or its
Subsidiaries derived from the deposit agreements or other agreements with third
parties in order to lend the publicity service, restricted television service or
any other service to such third parts, proving on money, promissory notes,
account receivables, or other assets, (F) credit bond endorsement for its
deposit or cashing, or similar operations in the ordinary course of the
business, (G) Accredited or its Subsidiaries Debt in favor of (x) any Affiliate
or (y) the Borrower or its Subsidiaries respectively, (H) Any canceled or
satisfied Debt according to the terms set forth in such Debt, (I) Debt as lessee
or guarantor under any satellite or transponder lease (it does not matter if
such leases are cataloged as Capital Leases or not).
"Default" shall mean any Event of Default or any other fact or
circumstance that constitutes an Event of Default by the simple time passing,
notice or both.
"Derivative" shall mean, for any Person, all the transactions resulting,
including without limitation, futures over capital, capital coverage,
transactions involving foreign exchange, futures over foreign exchange,
transactions involving exchange in interest rates, exchange options or similar
operations, and all obligations of such Person, direct or contingent, that
guarantee other Person's obligations with respect to such transactions.
"DirecTV" shall mean The DirecTV Group, Inc.
"Direct TV Purchase" shall have the meaning set forth in Clause Tenth
herein.
"Disbursement" shall have the meaning provided in Clause Third Paragraph
(a) hereof.
"Disbursement Date" shall have the meaning provided in Clause Third
paragraph (a) hereof.
"Event of Default" shall have the meaning provided in Clause Fourteenth
hereof.
"Governmental Authority" shall mean any government agency or any state,
department or other political subdivision of the same, or any governmental
organism, agency, authority (including any central bank or fiscal or
environmental authority), any entity (including any court or tribunal)
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government in the jurisdiction over such Person or
where such Person has its principal place of business.
"Guaranteed Percentage" shall have the meaning provided in Clause Tenth
hereof.
"Guarantor" or "Guarantors" shall have the meaning set forth in the
preamble of this Agreement.
"Grupo Xxxxxxx" shall mean any of the following Persons, as well as any
Affiliate or subsidiary of the same: Xxxxxxx Xxxxxxx Xxxxxx, Grupo Elektra, S.A.
de C.V.; Grupo Iusacell, S.A. de C.V.; TV Azteca, S.A. de C.V.; Biper, S.A. de
C.V.; Unefon, S.A. de C.V.; Banco Azteca, S.A., Institucion de Banca Multiple;
Seguros Azteca, S.A. de C.V. o Afore Azteca, S.A. de C.V., Administradora de
Fondos para el Retiro. For purposes of this definition, subsidiary shall mean
any company in which any Person owns more than 50% (fifty percent) of its voting
shares, either directly or indirectly through other companies, associations,
trusts or other entity, or, in which by any means, have the authority to appoint
the majority of the members of the board of directors or similar board, or to
determine the operation politics of the corresponding company.
"Innova" shall mean the Borrower.
"Interest Coverage Rate" shall mean, for any period, the relation of (i)
the Consolidated EBITDA for such period, divided by (ii) the Consolidated
Financial Expenses for the same period for which the Consolidated EBITDA was
calculated.
"Interest Payment Date" shall have the meaning provided in Clause Fifth
paragraph (b) hereof.
"Interest Period" shall have the meaning provided in Clause Fifth
paragraph (b) (ii) hereof.
"Interest Rate" shall have the meaning provided in Clause Fifth paragraph
(a) hereof.
"Legal Requirement" shall mean, for any Person, any law, regulation,
bulletin, or demand by any Governmental Authority, in each case applicable to or
binding for such Person or its properties or if such Person's properties or
assets are submitted to.
"Lender" shall have the meaning set forth in the preamble of this
Agreement.
"Lien" shall mean with respect to any asset, any mortgage, encumbrance,
pledge, trust agreement, lien, charge or other encumbrance of any kind, or any
other type of preferential arrangement over such asset that has the practical
effect of creating a security interest,
priority, preferential arrangement or lien over such asset and that such asset
is necessary for the operation of the principal business of the Borrower.
"Loan" shall have the meaning provided in Clause Second hereof.
"Loan Commission" shall mean 0.15% (zero point five percent) over the
principal amount of the Loan, calculated in the Disbursement Date.
"Maturity Date" shall mean precisely December 2, 2011.
"Mexican GAAP" shall mean, on any date, generally accepted accounting
principles in Mexico in full force and effect on such date but in all cases
enforceable at the time of their application. If any change in the Mexican GAAP
occurs, and such change results in a variation in the method of calculating
financial rates, parameters or terms in this Agreement, then both, Borrower and
Lender agree to perform the necessary and convenient negotiations to amend such
provisions in this Agreement with the purpose of reflecting such changes in the
Mexican GAAP with the desired result that the criteria used to evaluate the
financial situation of the Borrower stays the same after those changes as if
such had not occurred. Until such amendments are adopted and executed by the
Borrower, all the financial limits, measures and terms of this Agreement shall
continue to be calculated or interpreted as if such changes in the Mexican GAAP
had not occurred.
"Mexico" shall have the meaning set forth in Recital I paragraph (a)
hereof.
"Moody's" shall mean Xxxxx'x Investors Service, Inc. and its successors.
"NewsCorp" shall mean News Corporation.
"Notice of Disbursement" shall have the meaning provided in Clause Third
paragraph (a) hereof.
"Penalty Interest Rate" shall have the meaning provided in Clause Sixth
hereof.
"Permitted Lien" shall have the meaning provided in Clause Twelfth
paragraph (b) hereof.
"Person" shall mean an individual, company, corporation, trust,
joint-venture, limited liability company, irregular business entity or any other
business entity or Governmental Authority with or without legal capacity.
"Promissory Note" shall have the meaning provided in Clause Third
paragraph (a) hereof.
"Relevant Adverse Effect" shall mean any circumstance, event or condition
that adversely and significantly affects (a) the business, conditions (financial
or any other kind), transactions, performance or principal properties of the
Borrower in a consolidated manner, (b) the validity, legality, related nature or
enforceability of this Agreement or the Promissory Notes, or the rights and
resources of the parties according to such documents, or (c) the ability of the
Borrower or the Guarantors to comply with its obligations pursuant this
Agreement, the Promissory Notes or any other Credit Document.
"Responsible Officer" shall mean, for any Person, the CEO, the CFO, the
Controller or any legal representative with sufficient power of such Person as
long as such legal representative has a managing position in the Person.
"S&P" shall mean Standard & Poor's ratings Group and its successors.
"Subsidiary" shall mean, with respect to any Person, such company,
association, joint venture, limited liability company, trust, trust estate or
other business entity of which (or in which) more than 50% of (a) in case of a
company the issued and circulating shares representative of the capital stock
entitled to vote, (b) in case of a limited liability partnership, association,
or joint-venture, the interests with participation in the capital stock or
profits of such limited liability partnership, association or joint-venture
entitled to vote, or (c) in case of a trust or similar figure, the economic
rights, which are directly or indirectly owned or controlled by (x) such Person,
(y) such Person and one or more of its Subsidiaries, or (z) one or more of the
Subsidiaries of such Person.
"Surety" shall mean the surety agreement to be executed by the Televisa
(or any successor or assignee of Televisa, as permitted by this Agreement) and
the Lender in terms of Exhibit E-1 hereof, and that once signed it shall be
considered integral part of this Agreement.
"Televisa" shall have the meaning set forth in the preamble.
"Termination Value" shall mean in any date and with respect to any
Derivative, the total of the liquidations ant other amounts (without place to
compensation, claim or other deduction) that, as determined with good faith by
financial institutions with national or international recognition satisfying
Lender and Borrower should be payable in case of any incompliance, event of
default, illegality or other event that led to early termination or liquidation
of the corresponding transaction involving Derivatives.
SECOND. Loan. Subject to the terms and conditions of this Agreement,
Lender agrees to grant to Borrower in the Disbursement Date and by means of a
sole Disbursement, a loan (the "Loan") for the amount of $1'012,000,000.00 (one
thousand and twelve million pesos 00/100 Mexican currency) payable in eight (8)
equal quarter payments according to Clause Seventh.
THIRD. Loan due legal Disbursement; Lender commitment. (a) The Loan will
be available to the Borrower in only one exhibition (the "Disbursement"). The
Disbursement will be made only on December 10, 2004, (the "Disbursement Date"),
if and only if the Borrower delivers a due-notice to the Lender, duly signed by
a Responsible Officer of the Borrower, in which should be specified the
disbursement amount and the Disbursement Date (the "Notice of Disbursement")
with at least [three (3) Business Days] before the Disbursement Date.
(b) The Disbursement will be subject to the compliance of the conditions
established in Clause Thirteenth hereof, and having been delivered to the Lender
the Promissory Notes described in the following subsection (c).
(c) The Disbursement will be performed, according to the following
subsection (d), against the delivery by the Borrower to the Lender, of eight
Promissory Notes subscribed by the Borrower and the Guarantors, as guarantees,
through their respective attorneys-in-fact, who will be subject to the
established form in the Exhibit H of this Agreement (from here on, on an
individual basis, the "Promissory Note", and jointly, the "Promissory Notes"),
same that together each and every one of them on equal amounts will sum up the
amount of the Disbursement, in Pesos, Local Currency.
(d) For purposes of the Loan administration, the Lender will subscribe the
Disbursement amount to BBVA-Bancomer account No. 0448157111, Branch Office 0952,
on behalf "Innova S. de X.X. de C.V.", XXXXX 012180004481571114.
FOURTH. Commission. Borrower shall pay to Lender in the Disbursement Date
the Loan Commission.
FIFTH. Interest. (a) (i) Borrower shall pay to Lender without need of
previous demand, interest on the unpaid principal amount of the Loan for each
Interest Period, from the Disbursement Date to the Maturity Date, at a rate per
annum equal to 10.55% (ten point fifty five percent) (the "Interest Rate").
(b) (i) Interest shall be payable on the last Business Day of each
Interest Period (each of such dates, an "Interest Payment Date") according to
the payment calendar set forth in "Appendix 1" hereof; provided that the last
Interest Payment Date shall occur precisely in the Maturity Date.
(ii) "Interest Period" shall mean each 28 (twenty eight) days period
that (i) in the case of the first Interest Period will begin in the Disbursement
Date and will end on January 7, 2005; and (ii) for each of the following
Interest Periods, it shall begin on the last day of the preceding Interest
Period and will end after 28 (twenty eight).
(iii) Interest shall be calculated considering the number of days
that effectively ran from the last Interest Payment Date until the corresponding
Interest Payment Date.
(iv) Any Interest Period that ends after Maturity Date shall end
precisely on such date.
(v) All accumulated interest in accordance with this Agreement,
shall be calculated for the effective days over a year of three hundred and
sixty (360) days, including the first day but excluding the last one of the
corresponding term.
SIXTH. Penalty Interest. In the case of delay in the payment of any
payable amount pursuant this Agreement or the Promissory Notes (including
interest, if permitted by the applicable law), penalty interest over the unpaid
amount of the Loan since the date on which such payment shall be paid until the
date in which is totally paid, at a rate per annum equal to adding to percentage
points (2%) to the applicable Interest Rate during the period in which the
non-fulfillment occurs and continues (the "Penalty Interest Rate").
To calculate penalty interest, the applicable Penalty Interest Rate shall
be divided by three hundred and sixty (360) and the result shall be applied to
the unpaid and due amounts, resulting the daily penalty interest, which Borrower
binds to pay on demand according to this Agreement.
SEVENTH. Loan Payment. Borrower shall pay to Lender the principal amount
of the Loan according to the calendar and amounts established hereby, amount in
which are not included interest, commissions, and expenses regarding the Loan:
Principal Payment Date Amount
April 23, 2010 $126,500,000.00
July 16, 2010 $126,500,000.00
October 8, 2010 $126,500,000.00
December 31, 2010 $126,500,000.00
March 25, 2011 $126,500,000.00
June 17, 2011 $126,500,000.00
September 9, 2011 $126,500,000.00
December 2, 2011 $126,500,000.00
EIGTH. Prepayments of Principal. (a) The Borrower may carry out
prepayments of the principal amount of the Loan, prior irrevocable written
notice delivered to the Lender within 5 (five) Business Days prior to the date
in which the prepayment will be done, the amount paid shall be decreased from
the outstanding amount of the Loan, applying the amortization which will be due
before, and successively. The Borrower may not use (dispose) the amounts
prepaid.
(b) In the event that a prepayment is done on an Interest Payment
Date, the Borrower shall not be obliged to pay any kind of commission or
penalty. In the event that a prepayment is done on a date different from an
Interest Payment Date, the Borrower shall pay the Lender, the charges derived
from such situation within the 15 (fifteen) days following in which the Lender
delivers a reimbursement requirement for such effects, in the understanding that
along with such requirement, the Lender shall deliver the Borrower a document in
which the calculations made in order to obtain the amount of the charges are
described.
(c) In the event that a prepayment is made on a date different from
the Interest Payment Date, the Lender shall pay the Borrower the profit obtained
from such situation within the 15 (fifteen) days following the date in which the
Borrower delivers a reimbursement requirement, provided that the Borrower shall
deliver the Lender, along with such requirement, a document in which the
calculations made in order to obtain the amount of the benefits are described,
or the Lender determines in good faith the amount of the corresponding benefit
jointly delivering to the Borrower, a document in which the calculations made in
order to obtain the amount of the benefits are described.
(d) In the event that the Borrower does not carry out any of the
prepayments which he had notified the Lender on the date programmed, the
Borrower shall pay the Lender upon
the Lender's request, any cost or expense in which the Lender reasonably
incurred with respect to the prepayment of such amount, prior proof of the
payments made by the Lender.
NINTH. Payments. (a) Except to the extent otherwise provided herein
and in other Credit Documents, all payments of principal, interest, commissions
and other amounts payable with respect to the Credit to be made by the Borrower,
shall be made tax free and without deduction, set-off or counterclaim or any
kind of responsibility with respect to tax liabilities payable pursuant to the
law, regulations and any other applicable provision in Mexico, without any kind
of compensation, in immediately available funds, before 15:00 hours (Mexico
City, Federal District, Mexico time), on the date on which such payment shall
become due. The aforementioned, shall not be applicable with respect to the
income tax and other similar taxes payable by the Lender or any other assignee,
participant or acquirer of the rights pursuant to this Agreement with respect to
his income or total assets pursuant to the laws, regulations and other
applicable provisions in Mexico. Such payments shall be debited by the Lender
each day of payment of commissions, interests or principal, as the case may be,
from the account number 4028303873 that the Borrower has with the Lender, or to
any other bank account which the Lender indicates to the Borrower no later than
5 (five) Business Days prior to the date of the corresponding payment.
(b) In the event the due date of any payment of the Borrower, would
otherwise fall on a day that is not a Business Day, such payment shall be made
on the next succeeding Business Day.
(c) The Lender shall give back to the Borrower, for their
cancellation, the Promissory Notes granted pursuant to this Agreement, promptly
upon receipt of the payment of the principal, interests and other sums granted
by such Promissory Notes.
TENTH. Surety and Corporate Guaranty. In this act, Televisa and
NewsCorp agree to enter into the Surety and the Corporate Guaranty,
respectively, in the terms set forth in the layouts attached hereto as Exhibits
E-1 and E-2, respectively, such documents, once executed will be an incorporated
to this Agreement, whereby each Guarantor shall guarantee, individually and
severally, Borrower's obligations under this Agreement and the Promissory Notes
as set forth in such Surety and Corporate Guarantee and up to and limited the
percentages granted by each Guarantor as determined in each such documents (such
percentage with respect of each Guarantor, the "Guaranteed Percentage"):
In addition to the Surety and the Corporate Guaranty granted in this
Clause by Televisa and NewsCorp, respectively, the Guarantors bind to subscribe
the Promissory Notes, which shall be subscribed pursuant to this Agreement in
their capacity of guarantors. The Promissory Notes shall be subscribed as
evidencing the dispositions made under the Loan (causality) and in the terms of
the form of Promissory Note attached to this Agreement as Exhibit F.
Notwithstanding the contents of this clause, the Guarantors in a
jointly manner and by means of a written notice may require to change the
Guaranteed Percentage by each of them pursuant to the terms of the Surety and/or
the Corporate Guaranty in the understanding that such change may not exceed +/-
15% (fifteen percent) of the total amount of the secured obligations, and in the
understanding, however, that at any time, they
shall altogether grant 100% (one hundred percent) of the payment obligations of
the Borrower pursuant to this Agreement, provided, that in case the DirecTV
Purchase (as defined below) occurs, then the totality of the loan owed to the
Lender shall be 100% guaranteed by Televisa, and Televisa shall execute a new
Surety reflecting such situation and that the old Surety shall no longer be in
effect and the portion of the loan owed to DirecTV as a result of the DirecTV
Purchase shall not be subject to any guarantee of any of the Guarantors.
Subject to the terms hereof, NewsCorp shall have the right to substitute its
Corporate Guarantee for one of its affiliate DirecTV in the following cases:
(i) if at the time of such substitution DirecTV has a credit rating
equal or higher than BBB- or any equivalent rating credit status and that
such credit status qualification is given by Xxxxx'x or S&P, or
(ii) if (A) at the time of such substitution DirecTV has a credit
rating equal or higher than BB by any of Xxxxx'x or S&P or an equivalent
qualification, and (B) the Lender has agreed a reasonable increase
adjustment of the Interest Rate in order to reflect the additional risk to
which the Lender is subject to. Notwithstanding the foregoing, in case,
that after the Corporate Guarantee is substituted by DirecTV, the DirecTV
Purchase occurs pursuant to the terms of this Section, the parties agree
that the Interest Rate shall be adjusted back to the annual fixed interest
rate of 10.55% (ten point fifty five percent).
DirecTV shall have the right to purchase from the Lender and the
Lender shall assign to DirecTV (the "DirecTV Purchase") all of Lender's rights
and obligations under this Agreement that are equivalent to all NewsCorp's
Guaranteed Percentage of the outstanding obligation, by DirecTV paying to Lender
an amount equal to all of NewsCorp's Guaranteed Percentage of the outstanding
obligation.
Upon consummation of the DirecTV Purchase and once NewsCorp's
Guaranteed Percentage is paid to the Lender in full, (i) NewsCorp's guaranty and
any other of its payment obligations under the Credit Documents shall be
released in full, except for any obligations that have become effective prior to
such DirecTV Purchase, (ii) Televisa shall thereafter continue to guaranty 100%
of the amounts owed to the Lender after the DirecTV Purchase (and for the
avoidance of doubt the portion of the loan purchased by DirecTV under the
DirecTV Purchase, is not and shall not be guaranteed by Televisa), and (iii) the
Interest Rate shall be a fixed annual interest rate of 10.55%.
Subject to the terms of this Agreement each of the Parties hereto, hereby
agrees to take or cause to be taken such further actions, to execute, deliver,
and file or cause to be executed, delivered, and filed such further documents
and instruments, as may be necessary or as may be reasonably requested in order
to fully effectuate the DirecTV Purchase and the substitution of the Surety and
the Promissory Notes. Upon DirecTV substitution of the NewsCorp's Guarantee
Percentage or the occurrence of the DirecTV Purchase, DirecTV shall agree to
indemnify, defend and hold harmless Televisa and the
Borrower from and against any and all liabilities, costs or expenses arising out
of, resulting from or relating to the transfer of such guaranty obligation or
the DirecTV Purchase.
ELEVENTH. Covenants. As long as any payable amount pursuant to this
Agreement and the Promissory Notes remains unpaid, the Borrower, and, the
Guarantors (only with respect to the obligations set forth in section (a),
subsection (i) and section (n) of this Clause with refer to the Guarantors as
obligors) shall be subject to the following:
(a) Financial Statements and other Balances. The Borrower and the
Guarantors (only with respect to subsection (i) below) shall deliver the Lender:
(i) as soon as possible, but, in any event, within the 180 (one
hundred and eighty) days following the closing of fiscal year of the Borrower
and the Guarantors, a copy of the consolidated audited financial statements of
the Borrower and of each of the Guarantors corresponding to such fiscal year,
that include consolidated balance sheets, income statements, changes in the
financial situation and in the shareholders' equity of the Borrower and of each
one of the Guarantors for such fiscal year, along with a report issued by any
external accounting firm known within the jurisdiction where it is located. In
addition and in the case of the Lender only, a certificate issued by the
Responsible Officer in the format attached herein as Exhibit I, in which he
declares that no Default or Event of Default with respect to the Borrower has
occurred or is happening, or a document which contains a description of the
nature of the Default or Event of Default with respect to the Borrower has
occurred or is still happening, as well as the acts which have been carried out
or which they suggest that shall be carried out with respect to such Default or
Event of Default; and
(ii) as promptly as possible, but, in any event, within the 90
(ninety) days following the closing of the each one of the first 3 (three)
quarters of each fiscal year of the Borrower, the internal consolidated
financial statements of the Borrower, which include the balance sheet and the
financial statements corresponding to the period which begins at the end of the
of the last fiscal year and ends at the end of such quarter, certificates issued
by any Responsible Officer of the Borrower which states that such information
was prepared according to Mexican GAAP, and a certificate issued by a
Responsible Officer of the Borrower in the format attached herein as Exhibit I,
in which he declares that no Default or Event of Default with respect to the
Borrower has occurred or is happening, or a document which contains a
description of the nature of the Default or Event of Default with respect to the
Borrower has occurred or is still happening, as well as the acts which have been
carried out or which they suggest that shall be carried out with respect to such
Default or Event of Default.
(iii) Simultaneously to the delivery made by the Borrower of the
financial information pursuant to this Clause Eleventh (a) (i) and (ii), the
Borrower shall deliver the Lender, a certificate issued by a Responsible Officer
of the Borrower which includes all the information and calculations necessary to
determine the fulfillment of the Borrower's obligations set forth in section (a)
(i) and (ii) of Clause Twelfth herein.
(b) Notice of Events of Default and Litigation. The Borrower shall
furnish the Lender:
(i) as soon as available, and in any event within ten (10) days
after the date in which it becomes aware of any Default or any Event of Default,
a document in which a Responsible Officer of the Borrower describes such Default
or Event of Default and the acts which have been carried out or which they
suggest that shall be carried out with respect to the same; and
(ii) in a timely manner, a notice of all litigation, actions and
proceedings before any Court, Governmental Authority or arbitration panel
affecting the Borrower or any of its Subsidiaries or any notice received from
the Borrower or any of its Subsidiaries with respect to any potential
responsibility, actual or potential violation of any law or regulation
(including without limitation environmental laws), only in the event that the
aforementioned might have a Relevant Adverse Effect.
(c) Compliance with Laws and Contractual Obligations, Etc. The Borrower
shall comply, and will verify that each one of its Subsidiaries complies with
all the applicable Legal Requirements (including, those related to licenses,
concessions, certificates, permits, franchises, notices, registrations and other
governmental authorizations necessary to have the possessions of its assets or
to carry out its activities, antitrust laws, environmental laws social security
and equity funds laws), as well as with any other of its relevant contractual
obligations, except that the non compliance with the aforementioned might not,
under the Borrower's perspective, have a Relevant Adverse Effect.
(d) Payment of the Obligations. The Borrower shall pay, and will verify
that each one of its Subsidiaries pays, before incurring in a late payment, (i)
all the taxes, contributions, rights and governmental charges determined, levied
or demanded, and (ii) all the obligations which pursuant to the law derive from
this agreement or other applicable laws, which lack of payment may cause a lien
on its assets, only in the event that the aforementioned concepts are being
appealed or that their lack of payment is not expected to have a Relevant
Adverse Effect; in the provided, however, that the necessary reserves pursuant
to Mexican GAAP are duly kept.
(e) Maintenance of Insurance. The Borrower shall continue to maintain, and
will assure that its Subsidiaries maintain, insurances with well known insurance
companies, for the amounts and risk coverage normally obtained by companies
involved in similar business in Mexico and which are own similar goods related
to the activities carried out by the Borrower in a consolidated manner, except
for insurances related to satellite obligations and of any transponder, and in
connection with the operation and management of such.
(f) Management of the Business and Maintenance of the Corporate Structure.
The Borrower shall continue carrying out the same kind of activities and
businesses as carried out at the moment considering the ordinary variations of
the business that emerge from the innovation of technology and the tendencies of
the business of the corresponding industry, and shall maintain, and enforce each
one of its Subsidiaries to maintain their legal existence (except of those
which's non existence does not cause a Relevant Adverse Effect), rights (legal
or statutory), licenses, authorizations, permits, notifications, registries and
franchises (the "Rights") which are considered necessary to carry out its main
business; in the understanding that nor the Borrower nor any of its Subsidiaries
shall be obliged to maintain their legal existence with respect to a merger or a
consolidation carried out
pursuant to the provisions set forth in Clause Twelfth, section (c); and in the
understanding as well , that nor the Borrower nor any of its Subsidiaries shall
be obliged to conserve any of the Rights in the event the Borrower or any of its
Subsidiaries, discretionally, in good faith, decides that not keeping them might
be a good commercial strategy, and that the loss of such Right is not reasonably
considered to have a Relevant Adverse Effect. In any case, such obligation shall
be construed as a limit for the Borrower or any of its Subsidiaries to start new
businesses related to the telecommunication industry and others related to such
industry.
(g) Books and Registries. The Borrower shall keep and will make its
Subsidiaries keep, the corresponding registry and accounting books, that shall
contain correct and complete entries with respect to all financial operations,
assets and the business of the Borrower and each one of its Subsidiaries, such
entries shall be made pursuant to Mexican GAAP (with respect to the Borrower and
its Mexican Subsidiaries) or with any other applicable accounting principles
(with respect to the Borrower's foreign Subsidiaries, as the case may be).
(h) Maintenance of the Assets. The Borrower:
(i) shall maintain and conserve, and will assure that each one of
its Subsidiaries maintains and conserves all the assets to carry out its main
activities properly and in normal conditions, except for the ordinary use and
waste of the assets in possession of the subscribers of the Borrower or its
Subsidiaries or those which waste does not cause a Relevant Adverse Effect.
(ii) shall maintain, conserve and protect its intellectual property
rights and all governmental or third party authorizations, franchises,
concessions, licenses and permits necessary to carry out the main business of
the Borrower and its Subsidiaries, provided that section (i) and this section
(ii) will not impede that the Borrower or any of its Subsidiaries stop operating
and maintaining any of assets, or that they will allow the expiration of some
concessions, authorizations, licenses or permits as long as such is desired for
the operation of the business and that such operation stop, individually or
jointly, will not cause a Relevant Adverse Effect.
(i) Destiny of the Loan. The Borrower shall use the Loan to prepay the
bonds defined as "Senior Notes" due on 2007 for an amount of USD$88'000,000.00
(eighty eight million dollars, US Cy.) and the expenses related to the execution
of this Agreement and the other Credit Documents and the prepayment of the bonds
defined as "Senior Notes".
(j) Preference in the Payment Pari Passu. The Borrower shall carry out all
the necessary acts to make that all of the Borrowers obligations pursuant to
this Agreement, the Promissory Notes and the other Credit Documents remain in
full force an effect, with preference in the payment at least in the same level
with respect to al the other Debt of the Borrower, except for those payment
obligations of the Borrower which have a payment preference in virtue of the
applicable law.
(k) Transactions with Affiliates. The Borrower shall carry out and make
that each one of its Subsidiaries carries out relevant transactions for its main
business with any of its Affiliates, such transactions, under the Borrowers
criteria, shall be market value.
(l) Maintenance of Governmental Authorizations. The Borrower shall
maintain in full force and effect all the authorizations of, registrations
before any Governmental Authorities necessary pursuant to the applicable laws to
carry out the main activities (including without limitation, environmental
laws), in order to comply with the obligations herein and for the enforceability
of this Agreement, except that the lack of such authorizations or registrations
are not expected to cause a Relevant Adverse Effect.
(m) Surveillance Rights. Upon the Lender's request, with at least 10 (ten)
Business Days prior to the corresponding date, the Borrower shall allow that the
representatives appointed by the Lender, examine the accounting registries
and/or the properties of the Borrower and interview the corresponding officers
or external auditors, during business days and hours, in the understanding that
such surveillance shall not interfere with the Borrower's ordinary course of
business, all the information to which such representatives have access shall be
kept confidential pursuant to the provisions herein and that such surveillance
shall be carried out by employees of the Lender and not by third parties. The
expenses derived from such visits shall be paid by the Lender, unless a Default
or Event of Default has occurred, in such case the expenses shall be paid by the
Borrower.
(n) Control. The direct or indirect participation of the Guarantors in the
Borrower's capital stock, shall at all times remain jointly or separately with
respect to one or both of them, in at least 51% (fifty one percent) of the
Borrower's Capital Stock, provided however, that for purposes of the calculation
of the participation those shares or interests not entitled to vote or that fit
in the "neutral" classification parameters, in the event such percentage is
less, the Guarantors shall either jointly or separately have the capacity,
directly or indirectly, to appoint the majority of the members of the Board of
Managers (or of Directors, in the event it is constituted like that in the
future) of the Borrower, in the understanding, however, that such participation
might be decreased in the event that a public offer is carried out by the
Borrower, in which case, such percentages will be reduced proportionally to the
percentage of the capital matter of such public offer, and in the understanding
that in such case, the percentage of the Loan granted by the Guarantors which
will jointly cover 100% (one hundred percent) of the obligations herein.
TWELFTH. Negative Covenants. As long as any amount payable pursuant to
this Agreement and the Promissory Notes remains unpaid, the Borrower agrees:
(a) Financial Limitations.
(i) The Borrower shall not allow that the Consolidated Leverage Rate
exceeds at any time 4:1.
(ii) The Borrower shall not allow that the Interest Coverage Rate at
any time be less than 2:1.
(b) Liens. The Borrower shall not constitute, assume, nor allow the
existence of any Lien over any of its assets, and will not allow that its
Subsidiaries constitute, assume or allow the existence of any Lien over any of
its assets, unless such are necessary to carry out the Borrower's principal
business, either if such goods are owned by them or if they will be acquired
after this date, and except for the following Liens ("Permitted Liens").
(i) Liens derived from any fiscal or labor obligation, or those
created pursuant to the law, as long as the aforementioned were properly
appealed through the corresponding proceedings and with respect to those for
which reserves were established or any other kind of necessary provisions were
created pursuant to Mexican GAAP, or those with respect of which, term to appeal
according to applicable legislation, has not passed;
(ii) Liens created as a consequence of legal easements, restrictions
to the use of federal, local and municipal lands, easement rights and similar
Liens over the goods of the Borrower or any of its Subsidiaries;
(iii) Liens which existence derives from a judicial judgment or
order from any court, unless such judgment is declared inadmissible or that its
effects have been suspended by means of another judicial order within the 60
(sixty) calendar days following the date in which the Borrower or its
corresponding Subsidiary have been notified of the judgment as a result of
which, the corresponding Lien is created;
(iv) Liens created prior to the execution of this Agreement;
(v) Liens over the assets that Borrower or any of its Subsidiaries
acquire in the future, which exist before the date of acquisition of such assets
(or which were created just for their acquisition), as well as Liens created to
guarantee the total or partial payment of the acquisition price of such assets
or the Debt assumed to acquire such assets, in the understanding that (A) such
Liens shall only cover the acquired assets or, if required by the document from
which such Lien derived, any other assets which constitute improvements or goods
acquired for an specific use related to the acquired goods (in the event the
acquisition of entities, the Borrower or any of its Subsidiaries may constitute
liens over the shares, equity parts or similar instruments which represent the
share capital of the acquired entities or of those which, directly or
indirectly, carry out the acquisition), and (B) in al such cases, such Liens may
be created within the 9 (nine) days following, in the case of goods, the date of
purchase or, in case of improvements, the date in which they are accomplished.
(vi) Liens which renew, enlarge the term or substitute any of the
Permitted Liens mentioned in section (v) above, provided that the amount of the
debt granted by such Liens is not increased or that the term for its payment is
not shortened and that such Liens do not cover other assets than the originally
covered;
(vii) Liens over securities that guarantee operations of "reporto"
or repurchase obligations of such securities.
(viii) Liens derived from the ordinary course of business of the
Borrower or its Subsidiaries in accordance with the practices of such on the
date of execution of this
Agreement, including the granting of sureties, letters of credit, cash or in
kind deposits, among others;
(ix) Liens by transporters, warehouse owners, employees, mechanics
or any similar Liens derived from the law, which derive within the ordinary
course of business and which guarantee obligations which are not due for more
than 30 (thirty) days or which are being appealed pursuant to section (i) above;
(x) pledges granted or deposits made within the ordinary course of
business, in order to comply with the social security, employees' salary and
unemployment insurance provisions, including pledges and/or deposits granted in
favor of the Employees Housing Institute ("Instituto para la Vivienda de los
Trabajadores") (INFONAVIT); Mexican Social Security Institute ("Instituto
Mexicano del Seguro Social") (IMSS) and the Retirement Fund System ("Sistema de
Ahorro para el Retiro") (SAR);
(xi) Liens imposed or deposits made to guarantee (i) letters of
credit, the compliance of offers, positions, commercial agreements, leases,
licenses, legal or regulatory obligations, bank authorizations, legal or
judicial bails, agreements entered with Governmental Authorities, compliance
bails and any other obligation of the same nature incurred within the ordinary
course of business and any other compensation right of banks which have not been
exercised related to deposits made within the ordinary course of business and
(ii) indemnity obligations with respect to the sale, lease, assignment or any
other transfer of any good or asset of the Borrower or any of its Subsidiaries;
(xii) leases or subleases entered with third parties, that do not
interfere in a relevant manner in the ordinary course of business of the
Borrower in a consolidated way;
(xiii) any interest or right of a lessor with respect to goods or
assets subject to any kind of lease (including leases which are or shall be
capitalized pursuant to Mexican GAAP applicable in Mexico or Capital Leases) or
simple lease.
(xiv) Liens over goods and assets of, or over shares which represent
the capital stock of, or Debts of any company or entity which exists at the
moment in which such company or entity is incorporated or becomes part of, a
Subsidiary, as long as such Liens do not include goods or assets of the Borrower
or any of its Subsidiaries, different from the goods or assets acquired;
(xv) Liens in favor of the Borrower or any of its Subsidiaries;
(xvi) Liens which guarantee reimbursement obligations with respect
to the letters of credit which levy documents or any other goods or assets
related to such letters of credit and the products and profits of such;
(xvii) Liens in favor of custom and tax authorities derived from the
law to guarantee the payment of custom fees related to the import of goods;
(xviii) Liens which affect the initial deposits and on time
deposits, and any other kind of Liens which are within the general scope of the
industries activities and which
have derived from activities within the Borrower's ordinary course of business,
in each case, granting Debt under any Derived designed to protect the Borrower
or any of its Subsidiaries from fluctuations of the interest rates or exchange
rates, respectively, and entered without speculation purposes;
(xix) Liens that arise from agreements which are subject to
conditions, agreements without transfer of ownership, consignation agreements or
similar agreements for the sale of the assets, entered into by the Borrower or
any of its Subsidiaries within the ordinary course of business of the Borrower
and of its Subsidiaries.
(xx) Liens on Borrower or Subsidiary's rights to receive payments
derived from the schedule of programs or movies, as well as of the profits of
the same;
(xxi) Liens in regards to the compliance and liquidation or cancel
of the Borrower's or Subsidiary's Debt: and
(xxii) Other Liens always that, along with the liens described in
sections (i) and (xxi) above, cover the obligations which amount doest not
exceed (a) USD$60,000,000.00 (sixty million dollars 00/100, US Cy.) or its
equivalent in any other currency, or (b) 15% (fifteen percent) of Borrower's
assets, whichever results greater.
(c) Consolidations and Mergers. The Borrower, shall not, in one or more
related transactions, (x) consolidate or merge (as merged or merging
corporation) with any other Person, nor (y) directly or indirectly, transfer,
deliver, sale, lease or in any other way dispose of all or substantially all of
its properties or assets in favor of another Person, unless that, immediately
after the transactions described in sections (x) and (y), becomes effective:
(i) the Person that turns out or becomes incorporated by virtue of
such consolidation of merger, in case is not the Borrower or any of its
Subsidiaries, or the Person that acquires by means of a transfer, delivery,
lease or any other legal concept, all or substantially all of Borrower's
properties or assets (such Person, an "Assignee") (a) is a company duly
incorporated and existent pursuant to the laws the United Mexican States, (b)
and expressly undertakes, pursuant to a written agreement in the appearance and
depth satisfactory to the Lender, Borrower's obligations pursuant to this
Agreement and the other Credit Documents;
(ii) in case that in any of such operations executed by the
Borrower, it or its Assignee, whichever applicable, expressly agree to indemnify
the Lender in connection to any tax, contribution or governmental lien imposed
to the Borrower as a consequence of such transaction, regarding the payments
pursuant to the Credit Documents;
(iii) a Default or Event of Default have not occurred or continue
immediately after such transaction becomes effective, including, for the effects
of this paragraph (iii) the following events: the substitution of the Borrower
by its Assignee and the treatment of any Debt or Lien incurred as a result of
such operation by the Borrower or any Borrower's Assignee, or by any of
Borrower's Subsidiary, as if incurred in the precise moment of such operation
(in the intelligence that any Debt or Lien incurred by the Assignee prior such
merger and not related to the same, shall not be deemed as a Debt or Lien for
the effects of this Agreement); and
(iv) the Borrower have delivered to the Lender a certificate of an
officer in which it sets forth that such consolidation, merger, delivery, sale,
transfer or lease, as well as the agreement with respect to such operation, is
in compliance with the applicable provisions of this Twelfth Clause and that all
conditions established in this Agreement in connection with such operation have
been fulfilled.
(d) Disposal of Assets. Neither the Borrower nor its Subsidiaries may
sale, lease or in any other way dispose of its necessary assets for the
management of Borrower's main business (including the shares or partnership
interests representative of the capital stock of any Subsidiary, in case that
such Subsidiary is relevant to the management of Borrower's main business),
except for those disposals which not cause a Relevant Adverse Effect to (i)
stock, accounts to settle in connection to the business and exceeding assets to
the necessities of the Borrower's business or that for its own nature are sold
by the Borrower or its subsidiaries in the ordinary curse of its businesses
without being considered as surplus, (ii) assets which are not in use, can not
be used or can not be kept for its use in regards to diverse operations, (iii)
other assets, as long the product of the disposal of such assets is withheld by
the Borrower or such Subsidiary, whichever the case is, and as soon as possible,
after such disposal (but in any case within the following 90 (ninety) days after
such disposal), such product is applied to (1) expenses derived from goods,
plants and equipments used in the Borrower's business; or (2) the payment of the
Borrower's or Subsidiaries' Debt, guaranteed or not; or (3) [ordinary expenses
incurred in as part of Borrower's or its Subsidiaries' business].
The Borrower shall make its Subsidiaries (as long the Disposal of Assets
of such Subsidiary produce a Relevant Adverse Effect) to comply with the
provisions of this paragraph (d).
(e) Change in Nature of the Business. Neither the Borrower nor its
Subsidiaries may perform, nor allow any of its Subsidiaries to perform a
substantial change in the way and nature of their main activities as they are
carried out as of date of this Agreement, (if such change causes a Relevant
Adverse Effect in the case of Subsidiaries), except for those changes performed
as the result of technological innovations, the changes due to the own the
nature of the industry or as a result of the natural spin for the companies that
provide services of pay satellite television.
(f) Investment. (a) Neither the Borrower nor its direct or indirect
Subsidiaries may make or maintain investments in any Person besides those
companies that as of this date are Subsidiaries of the Borrower or its
Subsidiaries except for those cases in which, as a result of such investment, it
is foreseen that a Relevant Adverse Effect will not be caused; nor perform loans
to persons besides the Subsidiaries or the Borrower except for those loans that
the Borrower or its Subsidiaries perform in the ordinary curse of the options of
its business with their commercial counterparts, or are performed with the
intention to make more efficient, improve, modernize and give continuity to the
business of telecommunications and related services in whole or in part, in the
understanding that the authorized loans pursuant to this section shall always be
granted according market
conditions. All investment or loan performed by the Borrower and its
Subsidiaries for the purposes of increasing, modernizing, improving and
expanding its telecommunication business and other related business is
permitted.
(g) Debt with Affiliates. Neither the Borrower nor its Subsidiaries may
undertake a Debt with Affiliates, except for (i) Debt that is subordinated to
the Loan; (ii) Debt that derives from commercial transactions and all of the
payments to be performed in the normal curse of business of the Borrower or its
Subsidiaries; (iii) Debt existent as of the date of execution of this Agreement;
and (iv) Debt which specifically is determined to be paid through the
subscription of Capital Stock of the Borrower or its Subsidiaries;
(h) Dividends. The Borrower shall pay dividends in cash or in kind,
without the Lender's prior written consent, as long as the Consolidated Leverage
Rate does not exceed 3:1. However, such limitation shall not be extensive to the
Borrower's subsidiaries, which may pay dividends if so approved by their
competent corporate bodies.
THIRTEENTH. Conditions Precedent for the Obligation of the Lender and the
Performance of the Disbursement.
(1) The Borrower shall deliver to the Lender the Notice of Disbursement
until the Lender has received the following documents, in form and depth
satisfactory to Lender:
(i) this Agreement, legally subscribed by Borrower and the
Guarantors;
(ii) certified copies of the public deeds which contain (1) the
corporate by-laws in full force and effect of the Borrower and Televisa, and (2)
the powers of attorney of the legal representatives of the Borrower and Televisa
subscribing this Agreement, the Surety and the Promissory Notes;
(iii) copy of the by-laws of NewsCorp (or similar document pursuant
to the corresponding laws), certificates of NewsCorp's secretary, as well as the
power of attorney (or similar document pursuant to the corresponding laws) of
the legal representatives of NewsCorp subscribing this Agreement, the Corporate
Guaranty and the Promissory Notes;
(iv) the consolidated and audited financial statements as of
December 31st, 2003 and the consolidated internal financial statements as of
September 30, 2004, in both cases, of the Borrower;
(v) legal opinion issued by the legal adviser of NewsCorp to
Lender's satisfaction substantially in the form attached hereto as Exhibit G.
(2) The obligation of the Lender to grant the Loan to the Borrower and the
right of the Borrower to perform the Disbursement, are subject to the
fulfillment of the following conditions:
(i) that the Borrower delivers to the Lender the Notice of
Disbursement, subscribed by the Borrower's Responsible Officer, pursuant to the
provisions of Clause Third of this Agreement which shall contain the following
representations:
(1) that there is no Default or Event of Default as of the
Disbursement Date and that none of the above will result as a consequence of the
Disbursement; and
(2) that the Representations made by the Borrower and, to the
extent of his knowledge, by the Guarantors, are true and correct as of the date
of the Notice of Disbursement, except when such Representations make reference
to a specific date, in which case they shall have been true in the specific date
mentioned.
(ii) that the Borrower delivers, on the Disbursement Date, the
Promissory Notes in favor of the Lender for the amount of the Loan, legally
subscribed by the Borrower and by the Guarantors in their capacity of guarantors
in accordance to the provision of section (c) of Clause Third;
(iii) that a Default or Event of Default does not exist or continues
as of the Disbursement Date and that as a consequence of the Disbursement, a
Default or Event of Default will not occur; and
(iv) that the Representations of the Borrower and of the Guarantors
are true in all of its material aspects as of the Disbursement Date, except when
such Representations make reference to an specific date, in which case they
shall have been true in the specific date mentioned.
FOURTEENTH. Events of Default. The Lender is entitled to accelerate the
term for payment of the unpaid balance of the Loan and its accessories (in such
case, the Borrower and the Guarantors, limited to the Guaranteed Percentage by
each one in accordance to this Agreement, shall pay the total pending amount of
the Loan and its accessories), by means of a written notice delivered to the
Borrower and the Guarantors pursuant to Clause Nineteenth (b) at least 3 (three)
Business Days in advance, prior to the date in which the corresponding term to
remedy an Event of Default expires in accordance to this Agreement, in any of
the following events (each of one of such events, an "Event of Default"),
without demand, judicial resolution or diligence, all of which are hereby
expressly waived by the Borrower and its Guarantors, in the intelligence that in
case of remedying such Event of Default within the term set forth to remedy and
Event of Default, such written notice shall not be valid:
(a) Failure of Payment. If the Borrower (i) does not make any payment of
the principal when due in accordance to this Agreement, or (ii) does not make
any payment of interests or any other amount when due pursuant this Agreement,
in both cases within the following ten (10) Business Days after the date in
which such payments should have been made.
(b) Representations. If any representation or certification made by the
Borrower herein or in any other Credit Document, or made by any Guarantor
contained herein, in the Surety or in the Corporate Guaranty or any other of the
foregoing in any certificate, document, financial statement delivered pursuant
to this Agreement or with nay other Credit Document, as applicable, results to
be false in any material aspect, as of time made, and if such error is not
corrected within a term of 30 (thirty) calendar days as of the (i) the date in
which any officer from the Legal Department or from the Management and Finance
Vice
presidency (or its equivalent) of the Borrower or any of such of the Guarantors,
as applicable, have knowledge of such error, or (ii) the date in which the
Lender notify in writing to the Borrower of such error, whichever occurs first.
(c) Specific Defaults. If the Borrower or any of the Guarantors (with
respect to this ones only with respect to their obligations set forth in Clause
Tenth and for the cases of section (a), subsection (i) and section (n) of Clause
Eleventh where such obligations are specified as Guarantors obligations), as
applicable, breaches any of its obligations provided in Clause Eleventh,
paragraphs (a), (b) sections (i), (f), (i),(j), or (n) or in Clause Twelfth and
such incompliance is not relieved within a term of 30 (thirty) calendar days as
of (i) the date in which in which any officer from the Legal Department or from
the Management and Finance Vice presidency (or its equivalent) of the Borrower
or any of such of the Guarantors (only in the case is an obligation specifically
set forth as theirs) have knowledge of such incompliance, or (ii) the date in
which the Lender delivers to the Borrower a written notice providing and
certifying the existence of such incompliance, whichever occurs first.
(d) Other Defaults. If the Borrower breaches any of its affirmative and
negative covenants contained herein or in any other Credit Document (other than
the mentioned in sections (a) and (b) above), and such incompliance is not
relieved within a term of 30 (thirty) calendar days as of (i) the date in which
any officer from the Legal Department or from the Management and Finance Vice
presidency (or its equivalent) have knowledge of such incompliance, or (ii) the
date in which the Lender delivers to the Borrower a written notice providing and
certifying the existence of such non-fulfillment.
(e) Default of Other Agreements. (i) If the Borrower or any of its
Subsidiaries ceases to pay the principal, upon its expiration, of any Debt or
breaches its obligation to guarantee and pay any Derivative in a transaction or
series of transactions connected or not, and if such breach is in the amount
greater than USD$50'000,000.00 (fifty million dollars US Cy) or its equivalent
in any other currency applicable to the obligation, and in any case, such breach
continues during fifteen (15) Business Days after concluding the remedy terms,
which in such case were agreed in the corresponding instruments, agreements or
documents, or (ii) if a breach, event of default, or any other event or
circumstance occurs pursuant with any instrument or agreement in connection with
any Debt or Derivative of the Borrower or its Subsidiaries, in both cases, in a
transaction or series of operations connected or not, which default results in
the maturity (automatic or as a result of the action of any Person) of the
principal balance of such Debt or of the Termination Value of such Derivative
always as the result of such breach exceeds the USD$ 50,000,000.00 (fifty
million dollars US Cy) or its equivalent in any other currency applicable to the
obligation and such breach continues during fifteen (15) Business Days after
concluding the remedy terms, which in such case were agreed in the corresponding
instruments, agreements or documents.
(f) Voluntary Insolvency. If the Borrower or any of its Subsidiaries (as
long the effect of such Subsidiary, in such case, produces a Relevant Adverse
Effect) initiates a voluntary proceeding in order to dissolve, liquidate, begin
an insolvency contest ("Concurso Mercantil"), or any other remedy in connection
to itself or any of its Debts in accordance to any law or proceeding regarding
bankruptcy, insolvency, "Concurso Mercantil", or any similar present or future
law or proceeding, or seeks the appointment of a fiduciary, bankruptcy trustee,
liquidator, depositary or any other officer of similar nature in connection to
itself or
any other material part of its main assets for the effects of conducting its
main business, or in any other bankruptcy proceeding, "Concurso Mercantil" or
other similar initiated against him, or have to carry our a general transfer of
its total assets in favor of its creditors, or find itself in general breach in
the payment of its matured debts, or take any other curse of corporate action to
authorize any of the above.
(g) Involuntary Insolvency. If any involuntary proceeding is initiated
against the Borrower or any of its Subsidiaries (as long the effect of such
Subsidiary, in such case, produces a Relevant Adverse Effect) for the purposes
to arrive to its liquidation or "Concurso Mercantil" or seeking the appointment
of a fiduciary, bankruptcy trustee, liquidator, depositary or any other officer
of similar nature and if in relation to such involuntary proceeding a definitive
order or judgment resolution is formally issued declaring the bankruptcy,
liquidation or "Concurso Mercantil" or the appointment of a fiduciary,
bankruptcy trustee, liquidator, depositary or any other officer of similar
nature against the Borrower or any of its Subsidiaries (as long the effect of
such Subsidiary, in such case, produces a Relevant Adverse Effect) pursuant with
any bankruptcy, "Concurso Mercantil" or of any other similar nature present of
future law or in any other bankruptcy proceeding, "Concurso Mercantil" or other
similar initiated against him, and the Borrower or any of its Subsidiaries, as
the case may be, does not file a petition, appeal the corresponding procedure or
the appointment of the officer, in a term of thirty (30) Business Days staring
in the date in which it receives the notice of such petition, procedure or
appointment, as the case may be.
(h) Judgment. If judgment resolution or resolutions, which does not admit
remedy, are pronounced, with respect to the payment of money in an amount
greater than USD$50,000,000.00 (fifty million dollars 00/100, US. Cy) or its
equivalent in other currencies, against the Borrower and/or one or more of its
Subsidiaries, and such judgment resolution or resolutions are not nullified,
guaranteed or complied in whole within the following 30 (thirty) calendar days
after they were pronounced.
(i) Expropriation. If any Governmental Authority (i) nationalizes, takes
possession, intervenes or in any other way expropriates, all or a material part
of the properties and assets of the Capital Stock of the Borrower or any of its
Subsidiaries (as long the effect of such Subsidiary, in such case, produces a
Relevant Adverse Effect or (ii) carries out any act which not allows the
Borrower comply with their obligations pursuant to the Credit Documents).
(j) Moratorium, Currency Availability. If a moratorium is declared in
connection with any Borrower's Debt which non-fulfillment causes a Relevant
Adverse Effect which may result in the incompliance of the payment obligations
by Borrower in accordance with this Agreement.
(k) Reduction of Guarantors' Credit Rating. If the credit rating that the
Guarantors have as of the date of the execution of this Agreement (that for
Televisa is BBB- and Baa3 granted by S&P and Xxxxx'x respectively, and in the
case of NewsCorp is BBB- and Baa3 granted by S&P and Xxxxx'x respectively) or of
any substitute Guarantor in accordance with this Agreement starting on the date
of such substitution, is reduced in two or more notches pursuant to the
pertinent scale of measure (the "Reduction of the Credit Rating"), unless (i)
the Borrower proves to have in such date Investment Grade from Xxxxx'x or S&P ;
or (ii) the
Borrower have a Consolidated Leverage Rate equal or superior to 2 to 1 and an
Interest Coverage Rate equal or superior to 4 to 1 calculated as of the last
trimester following the date in which such credit rating of any of its
Guarantors has been reduced, or (iii) the corresponding Guarantor is replaced
for other reasonably accepted by the Lender, which shall occur within a term
that does not exceed thirty (30) day starting on the date on which the credit
rating of the Guarantor to be substituted occurs; in the understanding however,
if the reduction of the credit rating only affects one of the Guarantors, then
the Event of Default shall only be effective regarding, and only cause the
payment of the corresponding portion guaranteed by such Guarantor.
In case any of the Events of Default provided in paragraphs (f) or (g) of
this Clause occurs in connection with the Borrower, the outstanding amount of
the Loan (jointly with the accrued and unpaid interests) and all other
obligations of the Borrower pursuant with this Agreement shall be deemed
immediately due and payable without presentment, demand, protest or other
formalities of any kind, all of which are hereby expressly waived by the
Borrower and with not need of notice of any other further action by the Lender.
The Lender acknowledges and agrees that in an event of Default of the
obligations expressly undertaken in this Agreement by only one of the
Guarantors, and such Default is an Event of Default, such Event of Default shall
only be effective regarding, and only cause the payment of the corresponding
portion guaranteed by such Guarantor, with not need for the Guarantor in
compliance to respond for such amount of the Loan to be paid.
FIFTEENTH. Discounts; Transfers. (a) The Lender is authorized to transfer,
participate or in any other way of negotiation, event prior the expiration of
this Agreement or of any Promissory Note, the Loan granted hereunder and of any
Promissory Notes, prior written consent of the Borrower and the Guarantors,
which shall not be unreasonably denied and in the intelligence that the transfer
shall be deemed tacitly accepted, if no reply is received by the Lender within
the following 10 (ten) Business Days after delivering the notice to the Borrower
and to the Guarantors about such transfer and in the understanding that any
cost, tax or withhold derived from such transfer to the expense of the Borrower
or the Guarantors or an increase in the cost, tax or withhold shall be covered
in its totality by the lender. For the effects of this Clause, the transferee,
participant or purchaser shall be a Mexican credit institution residing in
Mexico for tax purposes.
(b) All transfer or participation made pursuant to this Clause shall me
performed for a minimum amount of $100,000,000.00 (one hundred million pesos
00/100 Mexican currency) with increases of $10,000,000.00 (ten million pesos
00/100 Mexican currency), every increase also subject to the prior written
authorization of the Lender and the Guarantors pursuant to section (a) above.
(c) The Borrower and each Guarantor shall, at Lender's request, substitute
any Promissory Note issued pursuant with this Agreement, in case the Lender so
requests as reason of the transfers or participation made in accordance to this
Clause. Notwithstanding the foregoing, the Borrower and the Guarantors shall not
have the obligation to perform such substitution if it is not against the
delivery of the Promissory Note to be substituted or through a final resolution
of a competent Governmental Authority ceasing the effects of the Promissory Note
to be substituted.
(d) For the case of a Guarantor substitution or the change of the
Guaranteed Percentages, the substitute guarantor shall, at the Lender's request,
substitute any Promissory Note, the Surety or the Corporate Guaranty, as the
case may be, issued in accordance to this Agreement, in case that the Lender
requires it as a result of such substitution or in case the Direct TV Purchase
is carried out. Notwithstanding the foregoing, the Borrower and the Guarantors
shall not have the obligation to perform such substitution if it is not against
the delivery of the Promissory Note to be substituted or through a final
resolution of a competent Governmental Authority which ceases the effects the
Promissory Note to be substituted and the termination of the Surety and/or the
Corporate Guarantee to be substituted.
(e) Such assignments or participations shall not constitute any novation
of the Loan. Since any of such assignments or negotiations, the assignee,
participant or authorized purchaser will be considered as "Lender" for the
effects of this Agreement and the Credit Documents.
(f) Except for the Direct TV Purchase or the substitution of the Corporate
Guarantee of NewsCorp by Direct TV, neither the Borrower nor the Guarantors
shall assign their rights or delegate their obligations under the terms of this
Agreement or the Promissory Notes save to entities with similar credit
qualifications to those of Borrower's and Guarantors', in this last case with
the previous and written consent of the Lender, which shall not be unjustifiably
denied.
(g) The Lender shall transfer or in any other way negotiate the Loan or
the Promissory Note(s) without attending to the restrictions expressly
established in this Clause, in case an Event of Default arises and the period to
rectify such event established for each case in Clause Fourteenth have expired
and non of the Guarantors has made the payment within the thirty (30) days
following the corresponding request by the Lender to the Guarantors, provided
that (i) such assignment shall only be performed in favor of financial
institutions or insurance companies duly incorporated and operating in Mexico
(with the exception of those institutions that are part of Grupo Xxxxxxx, (ii)
any cost, expense, tax or fiscal duty that results of such assignment shall be
totally covered by the Lender and (iii) in case that the Event of Default is as
a result of the incompliance of any of the Guarantors to its specific
obligations pursuant this Agreement, only the Guaranteed Percentage by such
Guarantor shall be assignable in the terms set forth in this section, and the
other Guarantor will have no responsibility or obligation over such assigned
portion of the Loan.
SIXTEENTH. Compensation. In case that in any date in which the Borrower
shall pay to the Lender any amount pursuant to this Agreement and the Borrower
or the Guarantors breaches this obligation of payment, the Borrower, within the
scope of Law, authorizes and indefeasible empowers the Lender to (1) charge to
any account which the Borrower maintain with the Lender, including with no
limitation, deposits and/or accounts on demand, of savings, in installments,
provisional or finals, any investment accounts, including specially the amounts
maintained by the fiduciary division of the Lender in favor of the Borrower in
accordance to any investment agreement, (2) compensate any debt that the Lender
could have to its favor and on Borrower's expense for any concept pursuant to
this Agreement, precisely until a quantity of equivalent amount to the non-paid
quantity to the Lender without the need of requirement, notice or claim.
The Lender shall notify to the Borrower, given the case, as soon as
possible, of any charge or compensation performed pursuant to this Clause, in
the understanding that failure of such notification shall not affect in any way
the effectiveness of such charge or compensation. The right of the Lender in
accordance with this Clause is additional to any other right (including other
compensation rights) that the Lender may have.
SEVENTEENTH. Credit Information. (a) For the purposes of the observance of
the provisions of the Law to Regulate Credit Information Corporations, the
Borrower and the Guarantors in this date delivers to the Lender an authorization
letter duly signed by it(s) legal representative, which is attached hereto as
Exhibit J [please provide], in order to authorize the Lender to perform periodic
queries to credit information institutions regarding the credit background of
the Borrower and the Guarantors, as well as to be authorized to provide to such
credit information institutions, information related to the Borrower and the
Guarantors. [RH&M to be reviewed if this document is required of NewsCorp]
(b) Besides the persons and authorities referred to in Articles 93 and 117
of the Credit Institutions Law, the Borrower and the Guarantors authorizes the
Lender to divulge the information derived from the operations mentioned in this
Agreement to (i) other financial entities integral parties of the financial
group to which the Lender belongs (exclusively to the permitted extend of the
Credit Institutions Law), and to the person which maintains the direct or
indirect control of the Lender, (ii) regulatory authorities of the jurisdiction
in which the person that holds the direct or indirect control of the Lender is
incorporated, (iii) Mexican Bank, (iv) persons with whom the Lender enters into
in accordance with Clause Sixteenth and (v) persons designated by the parties,
by written means.
EIGHTEENTH. Executory Instrument. This Agreement together with the billing
note, certified by the Lender's accountant, constitutes executory instrument in
terms of article 68 of the Credit Institutions Law.
NINETEENTH. Notices. (a) For purposes of this Agreement, each party
designates as its domicile to receive notices, the following:
Borrower:
Insurgentes Sur 694- 6 degrees piso
Colonia xxx Xxxxx
00000 Xxxxxx, D.F.
Telephone.: (00) 0000-0000
Fax: (00) 0000-0000
Attention:
Management and Finance Vice-president
cc: General Counsel
Guarantors:
Grupo Televisa, S.A.
Xxxxxxx Xxxxx xx Xxxxxxx 0000
Xxxxxxxx A, Xxxxxx Xxxx
Xxxxxxx Xxxxx Xxxxx Xx
Xxxxxx, X.X., 00000
Telephone: (00) 0000-0000
Fax: (00) 0000-0000
Attention: Xxxxx X. Xxxxx Xxxxxxx
Management and Finance Vice-president
cc: Xxxxxxx Xxxxxxxxx Santa Xxxx
Television Legal Vice-President
News Corporation
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
Attention: General Counsel
Lender:
Xxxxxxx Xxxxx xx xx Xxxxxxx 000
Xxxxxxx Xxxxxx
X.X. 00000, Xxxxxx, Distrito Federal
Telephone: (00) 0000-0000
Fax: (00) 0000-0000
Attention: Corporate Banking Direction
cc: General Counsel
Telephone: (00) 0000-0000
Fax: (00) 0000-0000
(b) All notices, requests and demands to or upon the respective parties hereto
shall be in writing and delivered in person, to the domiciles set forth in this
clause either by registered or certified mail, return receipt requested, by
courier or facsimile transmission upon confirmation of request. Unless the
parties notify their change of domicile and/or facsimile number in the above
terms, in which case, the notices will be delivered to such new domicile and/or
facsimile number. The notices delivered under these terms, will be effective
since the moment in which they are received; in this act the parties waive to
the use of electronic or optic means, as well as any other form of technology,
except for facsimile.
(c) Until a notice in writing consisting of a change in domicile, the notices,
request and all other judicial and extra judicial diligences performed at the
appointed domiciles will be fully effective.
TWENTIETH. Governing Law. This agreement shall be construed in accordance
with and governed by the Laws of Mexico.
TWENTY-FIRST. Jurisdiction. For everything related with the interpretation
and fulfillment of the obligations contained herein and the Promissory Notes,
the parties hereby
submit to the jurisdiction of the courts sitting at the Federal District of
Mexico and waive any jurisdiction to which it may be entitled to by reason of
their present or future domicile.
TWENTY-SECOND. Costs and Expenses. The Borrower shall pay to Lender on
demand all reasonable and documented costs, expenses, including cost and
expenses of the external attorneys of Lender in connection with the preparation
and execution of this Agreement, the Surety, the Corporate Guaranty, the
Promissory Notes or any other agreement or document executed or subscribed
pursuant to this Agreement, provided that such expenses shall be paid up to
USD$15,000.00 (fifteen thousand dollars 00/100, US Cy). If the Credit Documents
are not executed or if the Disbursement is not made before December 10, 2004,
and such is caused by the Borrower, it shall pay the amount of up to
USD$5,000.00 (five thousand dollars 00/100, US Cy), for each month of delay with
respect of such date, subject to the previous verification of such expenses.
Furthermore, the Borrower shall pay to the Lender, during the
immediate following 30 (thirty) calendar days to the demand, all reasonable and
documented costs, expenses, including filing fees of the attorneys of Lender in
connection with the amendments to this Agreement, the Surety, the Corporate
Guaranty, the Promissory Notes or any other agreement or document executed or
subscribed pursuant to this, as long as such amendment is requested by the
Borrower or any Guarantor, with the express consent of Borrower, as well as any
cost or reasonable expense duly justified, if applicable with respect to the
non-fulfillment or the execution of this Agreement, the Surety, the Corporate
Guarantee and the Promissory Notes, as long as the corresponding resolution is
definitive and favorable to the Lender.
TWENTY-THIRD. Amendments and Waivers. Any amendment to this Agreement, the
Promissory Notes or any other document in connection with this Agreement, will
only be considered valid if such is done in writing, signed by the Borrower, the
Guarantors and the Lender. Any waivers of rights or obligations of the Borrower
pursuant this Agreement will only be considered valid if such is done in
writing, signed by the Borrower, the Guarantors and the Lender. If any of the
parties did not exercise promptly or did not exercise the rights set forth in
this Agreement, the Surety, the Corporate Guaranty or any Promissory Note, it
shall not be considered, such shall not be considered as a waiver.
TWENTY-FOURTH. Counterparts. This Agreement may be signed in 4 (four)
originals, which shall constitute the same instrument.
TWENTY-FIFTH. Headings. The parties agree that the headings of each of the
Clauses are for convenience of reference only and shall not affect the meaning
or interpretation of this Agreement.
TWENTY-SIXTH. Exhibits. The parties agree that the Exhibits are an
integral part of this Agreement as if they were included in the same, and that
this Agreement shall be construed taking into account the contents of such
Exhibits.
TWENTY-SEVENTH. Confidentiality. Lender agrees to maintain, during the term of
the Agreement and even after its termination during the maximum term allowed by
the Credit Institutions Law and pursuant to the provisions therein, in strict
confidentiality, all the information and documentation in connection with the
Borrower, and with respect to the
Guarantors, as the case may be, in the event they provide information pursuant
to this Agreement, that has been provided in a written or oral form, directly or
indirectly, prior or after the date hereof regarding this Agreement, and with
the exception of the information that (i) has been obtained of sources other
than the Borrower or Guarantors an which is not subject to obligations of
confidentiality, (ii) is not of public domain or (iii) that is required by the
Governmental Authority.
For effects of this Agreement, the term confidential information
includes any information which record is in ay type of material support,
including without limitation, paper, cd-roms, diskettes, hard drives, cassettes,
etc., provided by any of the parts or, any holding company, Subsidiaries or
Affiliates of the other Parts, in any moment, including without limitation
reports, data, and any other financial, accounting, economic, legal or
commercial information.
[SIGNATURE PAGES]
