EXHIBIT 10.1
LOAN AGREEMENT EXECUTED BY AND BETWEEN BANCO INBURSA, S.A., INSTITUCION DE
BANCA MULTIPLE, GRUPO FINANCIERO INBURSA, REPRESENTED BY XX. XXXX XXXXXXXX
XXXXXX XXXX, (HEREINAFTER THE "BANK"), AND BY PRODIGY COMMUNICATIONS
CORPORATION, REPRESENTED BY XX. XXXXX CRAFT, (HEREINAFTER THE "BORROWER"),
SUBJECT TO THE FOLLOWING TERMS AND CONDITIONS:
REPRESENTATIONS
I. THE BORROWER DECLARES THROUGH HIS LEGAL REPRESENTATIVE:
a) That his principal is a corporation duly created in accordance with the
laws of Delaware, United States of America.
b) That he has sufficient powers and authority to validly bind his principal,
and that to date such powers and authority have not been revoked, amended or
limited in any manner whatsoever.
c) That this Agreement and the promissory notes herein referred to, upon
being signed by his principal, shall constitute valid and enforceable
obligations subject to its respective terms.
d) That there are no judicial or administrative proceedings pending against
his principal which could affect the lawfulness, validity or enforceability
of the obligations arising from this instrument and/or of the promissory
notes to be executed in accordance with thereof.
e) That his principal's financial statements, which were delivered to the
BANK previously to this date and under which grounds the Bank agreed to
execute this Agreement, truthfully reflect his financial situation.
II. THROUGH HIS LEGAL REPRESENTATIVE, THE BANK DECLARES:
a) That his principal is a corporation duly created in accordance with the
laws of Mexico.
b) That he has sufficient powers and authority to validly bind his principal
and that to date, such powers and authority have not been revoked, amended or
limited in any manner whatsoever.
In virtue of whereof, the parties execute this Agreement subject to the
following
CLAUSES
FIRST. AMOUNT OF THE LOAN. The BANK opens for the BORROWER a credit line in
an amount up to US$150,000,000.00 (ONE HUNDRED AND FIFTY MILLION DOLLARS,
UNITED STATES OF AMERICA CURRENCY 00/100), hereinafter the "LOAN", with an
option for the BORROWER to dispose of it in Mexican Pesos, at the rate of
exchange published by Banco de Mexico (Central Bank of Mexico) in the Diario
Oficial de la Federacion (Official Journal of the Federation), on the date of
disposal, subject to available resources and to the Bank's authorization.
The amount of the loan hereinbefore set forth does not include interests,
commissions and expenses, nor any other accessories the BORROWER should pay
by reason of the LOAN hereby established.
SECOND. DESTINY OF THE LOAN. The BORROWER shall apply the amount of the LOAN
set forth under the former clause, precisely to WORKING CAPITAL.
THIRD. LOAN WITHDRAWALS. During this Agreement's term, from the date this
instrument is executed and until it expires, the BORROWER may dispose in one
or several installments of the total amount of the LOAN established under
clause FIRST herein, by subscribing promissory notes, subject to the BANK
Treasury's availability of resources; should the latter be limited for any
cause and should it not be possible to furnish the amount(s) requested for
disposal(s), such limitation shall never be a source of responsibility in
charge of the BANK.
The credit line established in this Agreement is a revolving credit line,
meaning that once each withdrawal of money is paid, the credit line shall be
reset up to the limit stipulated under clause FIRST, and the BORROWER is
hereby authorized, for as long as this Agreement is effective, to dispose in
the manner herein agreed, of the balance in his favor.
To make withdrawals of the LOAN the BORROWER is required to: (i) be updated
in the payment of interests, commissions and maturities corresponding to the
amounts which he has already disposed of,
(ii) deliver, duly signed, the promissory notes documenting the withdrawals
of the LOAN, and, (iii) be in good standing, having complied with all other
obligations arising from this Agreement.
FOURTH. PROMISSORY NOTES. For each withdrawal, the BORROWER shall sign a
promissory note in favor of the BANK, which maturities shall be agreed
between the parties and will in no case exceed the term set forth under
clause NINTH herein.
Said promissory note(es) shall be completely autonomous, and therefore, the
BORROWER shall not invoke against its execution or enforcement, any
relationship, dependence, source, or relation of cause whatsoever;
wheretofore the BORROWER hereby explicitly grants his waiver and consent
thereof.
The BORROWER hereby explicitly authorizes the BANK to assign, endorse and/or
negotiate in any manner, even before their maturity date, the promissory
note(es) documenting the withdrawals made of the LOAN, as provided under
article 299 (two hundred and ninety nine) of the Ley General de Titulos y
Operaciones de Credito (General Law of Securities and Credit Transactions).
Should this agreement be rescinded or early terminated for any of the causes
set forth under clause TWELFTH, the BANK may accelerate the debt and declare
the promissory notes due and payable.
FIFTH. LOAN AMORTIZATIONS. The BORROWER shall pay the BANK those amounts of
the LOAN he has disposed of, precisely in the date their respective payment
is due under each promissory note thereof, as provided under clause FOURTH of
this instrument, in installments which payments shall be for the principal
amount due for the withdrawal in question, and the interests arising there
from as provided in the following clause, in the dates they are respectively
due.
SIXTH. ORDINARY INTERESTS. The withdrawals made by the BORROWER from the
amount of the LOAN, shall bear ordinary interests over the outstanding
balance from the date the withdrawal in question was made, until the date
they are respectively due, applying an interest rate and payment form that
shall be individually agreed in each of the promissory notes, as provided
under clause FOURTH of this instrument.
The interest rate over the sums withdrawn from the amount of this LOAN, shall
be reviewed and adjusted in accordance to what is individually agreed in each
promissory note, except for those cases where a fixed rate is agreed.
The sole subscription of the promissory notes documenting the withdrawals by
the BORROWER shall imply acceptance and agreement pf the interest rate and
the payment form contained therein.
The parties agree that the period to compute interests shall be in the manner
specified in each promissory note and that the reference rate applicable
thereto shall be the one in force at the date of the promissory note's
signature and/or the date of its revisions.
The BORROWER accepts from this moment forward, any adjustments made to the
rate when the latter or any of the elements composing it were variable, and
should this event arise, the adjustments shall apply without need of previous
notice and without need to execute in each case, any amendments to this
agreement.
Should the instruments stated as reference to establish the ordinary interest
rate disappear totally without being replaced by any others, the parties
hereby agree to substitute the promissory notes within the 3 (three) business
days immediately following such event, or otherwise this instrument shall be
early terminated.
The calculations of ordinary as well as of delinquent interests agreed in the
following clause, shall be made on the grounds of a year of 360 (three
hundred and sixty) days and upon the number of days actually elapsed.
SEVENTH. DELINQUENT INTERESTS. In case of default of any payment obligations
in charge of the BORROWER, the latter shall pay the BANK a delinquent
interest, at a daily rate resulting from applying to the due and unpaid
balance of the LOAN, the ordinary interest rate in force in the delinquency
period, multiplied by 3 (three).
Such delinquent interests shall be caused during all the time delinquency
persists, the BORROWER hereby binds himself to pay for any collection
expenses and, if necessary, for reasonable legal fees, and court expenses and
other expenses.
EIGHTH. APPLICATION OF PAYMENTS. The BORROWER may earlier totally or
partially make payments for the withdrawals from the LOAN without any
penalty, at any time, nevertheless, such payments shall not release him from
the obligation of making the immediately following payments.
Any payment shall be applied first to delinquent interests, secondly to
ordinary interests, in third place to any other pending payment expenses and
lastly to the principal.
NINTH. TERM OF THE LOAN. The term of this agreement shall be 18 (EIGHTEEN)
MONTHS from the date of this instrument, date from which the BORROWER must
have paid the BANK each and all the payment obligations in his charge, and
the terms and conditions of the promissory notes and obligations then in
force shall survive until their total compliance.
TENTH. PAYMENT PLACE. All payments to be made by the BORROWER in favor of the
BANK, arising from this agreement, shall be made without need of previous
requirement, in business days and hours, at the address specified by the BANK
under clause SIXTEENTH , or at the place the latter should determine by a
simple written notice.
ELEVENTH. CHARGES AND CREDITS. The BANK may charge the Borrower's check
account it has with the BANK, and the latter explicitly authorizes any such
charges: the principal, the interests, commissions, expenses or payments
which for any cause are made arising from this agreement. Likewise, the
BORROWER authorizes the BANK to credit in such check account any amounts that
should arise in its favor by cause of this agreement.
TWELFTH. EARLY TERMINATION CAUSES. The BANK may early terminate the
obligations in charge of the BORROWER and accelerate the payment of the
outstanding loan balance, of its legal and contractual accessories and any
other amounts to be paid in accordance with the terms of this agreement in
any of the following cases:
a) If the BORROWER does not comply timely with any of the capital
amortizations and/or interest payments agreed in this instrument.
b) If the LOAN is not applied precisely to the purpose set forth under clause
SECOND herein.
c) If the BORROWER does not provide the BANK with his quarterly financial
statements within the month immediately following the date when they are due
and with the annual internally consolidated financial statements, within 45
(forty five) days immediately following the close of the year and audited
consolidated financial statements within 120 (hundred and twenty) days
immediately following the annual close.
d) If the BORROWER enters into a merger or spin-off without the Bank's
previous consent.
e) If any material representation made by the BORROWER to obtain the LOAN
hereby granted, or in accordance with thereof, or any certification or
document it may have delivered to fulfill the obligations in his charge
according to this agreement, turns out to be false in any substantial aspect
at the moment it was made.
f) In case of any labor conflicts of such magnitude that good performance of
the Borrower's operation were affected, including but not limited to:
strikes, labor suspensions, etc.
g) Should the BORROWER dispose of or encumber, totally or partially, the
property constituting the fixed assets he owns and which represent over 10%
(ten percent) of his shareholders' equity, without the explicit written
consent of the BANK.
h) If the Borrower's property should be object of attachment ordered by any
authority, and such property should represent over 10% (ten percent) of his
shareholders' equity.
i) Should the BORROWER fall in any of the premises provided under article 301
of the Ley General de Titulos y Operaciones de Credito (General Law of
Securities and Credit Operations), compatible with the herein transaction.
j) Should the BORROWER breach any of the obligations in his charge arising
from this agreement or from the Law.
Should the BORROWER fall into any of the aforesaid premises, it shall have a
term of 5 days to cure such breach. Should he not cure it within the
aforesaid term, this agreement shall be early terminated and the obligations
herein contained may be called to make payment in one sole installment of the
total principal amount due, its interests, and any other legal accessories
thereof, accorded in this agreement. In case the BORROWER should default
payment, the delinquent interests shall start running from the day payment
should have been made even if said delinquency were cured during the term
herein set forth.
THIRTEENTH. ASSIGNMENT. The BANK may, at all times and whenever it so deems
pertinent, totally or partially assign the rights contained in this agreement
by any legal means to whomever the BANK should consider convenient in
accordance with the terms set provided by Law, wheretofore the BORROWER
hereby explicitly agrees.
FOURTEENTH. RESTRICTION AND TERMINATION. The BANK explicitly reserves the
powers and authority to restrict the amount of the LOAN or the term to
dispose of it or both at the same time, or to terminate this agreement by
means of a simple written notice delivered to the BORROWER in accordance with
provisions under article 249 of the Ley General de Titulos y Operaciones de
Credito (General Law of Securities and Credit Transactions).
FIFTEENTH. CERTIFICATES AND TITLE. This agreement along with the balances
certified by the Bank's accountant, constitute the title as provided under
article 68 (sixty eight) of the Ley de Instituciones de Credito (Law of
Banks), without any further need of acknowledging signatures nor any other
requirement, so that the outstanding balance and legal and agreed accessories
shall be determined by the Bank's accountant in accordance with the terms of
said legal provision.
SIXTEENTH. ADDRESSES. For all judicial and extra judicial purposes arising
from this agreement, the parties hereby establish as their addresses the
following:
The BORROWER: 0000 Xxxxx Xxxxx Xxxxxxxxx, Xxxxxxxx 0, Xxxxxx, Xxxxx 00000,
X.X.X.
The BANK: Xxxxx xx xxx Xxxxxx X(xxxxxx)000, Edificio "A", Anexo 1, Colonia
Xxxxx xx Xxxxxxxxxxx, X.X. 00000, Xxxxxx, Distrito Federal.
Any address changes must be reported to the BANK in writing by registered
mail, return receipt requested, within three business days immediately
following the date when such address change takes place.
While the BORROWER does not deliver notice in writing to the BANK of any
address change, the services of process and notices, and other judicial
proceedings or non-judicial once shall be validly made in the addresses set
forth in this clause.
SEVENTEENTH. JURISDICTION. For interpretation and compliance of agreements in
this instrument, the laws to be applied and the courts that shall have
jurisdiction shall be the ones of the Federal District. The parties hereby
waive any other jurisdiction to which they may have a right by reason of
their future or present address.
MEXICO, FEDERAL DISTRICT, JANUARY 29, 2001.
THE BANK THE BORROWER
Banco Inbursa, S.A. Institucion Prodigy Communications
de Banca Multiple, Grupo Corporation
Financiero Inbursa
/s Lic. Xxxx Xxxxxxxx Xxxxxx Xxxx /s Xxxxx Xxxxx
