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LOAN AGREEMENT
made between
INDUSTRIAS CITRICOLAS DE MONTEMORELOS, S.A. DE C.V.
GRUPO INDUSTRIAL SANTA ENGRACIA, S.A. DE C.V.
AGROMARK, S.A. DE C.V.
as Borrowers
THE UNIMARK GROUP, INC.
as Guarantor
and
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.
"RABOBANK NEDERLAND"
as Lender
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TABLE OF CONTENTS
Page
SECTION HEADING
SECTION 1. DEFINITIONS 2
SECTION 2. THE ADVANCE
2.01 Agreement to Lend 12
2.02 Purpose 12
2.03 Drawing 12
2.04 Interest 14
2.05 Default Interest 14
2.06 Repayment of Loan 15
2.07 Promissory Notes 15
2.08 Prepayment of Loan 16
2.09 Payments 16
2.10 Evidential Force 17
SECTION 3. YIELD PROTECTION
3.1 Taxes 17
3.2 Compliance Costs 18
3.3 Illegality 19
3.4 Adversity Prepayment 19
3.5 Currency and Place of Payment 20
SECTION 4. FEES AND CHARGES
4.1 Arrangement Fee 20
4.2 Commitment Fee 20
4.3 Expenses and Stamp Duties 21
SECTION 5. REPRESENTATIONS AND WARRANTIES
5.01 Power and Authority 21
5.02 Authorization of Borrowing 22
5.03 Governmental Approvals 22
5.04 Agreement Binding 22
5.05 No Default in Other Agreements 23
5.06 Litigation 23
5.07 Withholding and Other Taxes 23
5.08 Residence 23
5.09 Sovereign Immunity 24
5.10 Financial Statements 24
5.11 Title to Properties and Assets 24
5.12 Compliance with Law 25
5.13 Compliance with Environmental
Requirements 25
5.14 Material Adverse Financial
Performance 25
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5.15 Survival / Repeat of
Representation and Warranties 25
SECTION 6. COVENANTS OF BORROWERS
6.01 Performance of Obligations 26
6.02 Financial Statements:
Other Reports 26
6.03 Performance and Notice 27
6.04 Maintenance and Continuity of
Business/Insurance 28
6.05 Other Obligations 30
6.06 Taxes 30
6.07 Dividend Payments 31
6.08 Compliance with Law and
Governmental Approvals 31
6.09 Merger, Sale of Assets 31
6.10 Potential Event of Default 31
6.11 Further Documents 32
6.12 Liens 32
6.13 Sale of Assets. Leases. 32
6.14 Other Covenants 32
SECTION 7. CONDITIONS OF DRAWING
7.1 Initial Conditions Precedent 33
7.2 Additional Conditions Precedent 36
SECTION 8. FINANCIAL COVENANTS
8.1 Minimum Tangible Net Worth 37
8.2 Current Ratio 37
8.3 Maximum Leverage 37
8.4 Debt Service 37
SECTION 9. EVENTS OF DEFAULT
9.1 Events of Default 37
9.2 Consequence of Default 41
SECTION 10. CHANGES IN CIRCUMSTANCES 42
SECTION 11. MISCELLANEOUS
11.01 Term 44
11.02 Entire Agreement 44
11.03 Waiver: Cumulative Rights 44
11.04 Assignment and Participation 45
11.05 Modifications 45
11.06 Governing Law 45
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11.07 Submission to Jurisdiction 45
11.08 Set-off 46
11.09 Notices 46
11.10 Counterparts 47
11.11 Costs and Expenses 47
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ANNEXES
A. Promissory Note
B. Draw Requests
C. Total Project Cost Statement
D. Guaranty
E. Permitted Liens
F. Form of Promise to Mortgage Agreement
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LOAN AGREEMENT
THIS LOAN AGREEMENT is made as of the 29th day of May,
1997 by and among
I. Industrias Citricolas de Montemorelos, S.A. de C.V. ("Icmosa"), Grupo
Industrial Santa Engracia, S.A. de C.V. ("Xxxx") and AgroMark, S.A. de C.V.
("AgroMark"), companies incorporated in and under the laws of Mexico (as
defined herein), established at Montemorelos, Nuevo Xxxx, Ciudad
Victoria, Tamaulipas and Municipio Xxxx Xxxxxx, Veracruz, respectively,
hereinafter referred to as:"Icmosa","Xxxx"and"AgroMark"respectively and
collectively referred to as: the "BORROWERS"
II. The UniMark Group, Inc., a company incorporated in and under the laws of
the United States (as defined herein), established at Argyle, Texas,
hereinafter referred to as: "GROUP"
III. Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A. ("Rabobank
Nederland"), a financial institution incorporated in and under the laws of
The Netherlands, established at Amsterdam, The Netherlands, hereinafter
referred to as: the "BANK"
WHEREAS:
- the Borrowers are engaged, among others, in the business of growing,
processing, marketing and distribution of citrus and tropical fruit in
Mexico;
- the Borrowers have requested the Bank to partially finance investments in
plants, expansion and upgrading of facilities and agricultural operations
by granting to the Borrowers a loan up to a maximum amount of USD
$10,000,000;
- subject to the terms and conditions set forth below the Bank has agreed to
make such a loan available to the Borrowers;
NOW, THEREFORE, in consideration of the premises and the mutual covenants set
forth herein the parties hereby agree as follows:
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SECTION 1. DEFINITIONS
The following terms will have the meanings set forth below:
1.01 "Advance" will mean an advance to the Borrowers by the Bank pursuant to
section 2.03 or, where the context so requires, the amount of such advance
from time to time outstanding, including the Initial Advances.
1.02 "Affiliate" will mean any intermediary, affiliate, subsidiary or agent of
the Bank.
1.03 "Amended Mexican Pledge Agreement" will mean the Amended Pledge Agreement
executed the date hereof between the Pledgors and the Bank, to create a
pledge on all of the stock issued by the Borrowers to secure the
obligations of the Borrowers under this Agreement.
1.04 "Agreement" will mean this loan agreement.
1.05 "AgroMark" will mean AgroMark, S.A. de C.V. established at Xxxxxxxxx Xxxxx
Xxxxxx-Xxxxxxxxxx, Xxxxxxxxx xx Xxx, Xxxxxx, Xxxxxx de Veracruz.
1.06 "AgroMark Project" will mean the AgroMark investment program to, among
other, the engineering, construction, expansion and operation of the plants
and agricultural operations, specified in the Total Project Cost Statement.
1.07 "Availability Period" will mean the period commencing on the signing date
of this Agreement and expiring (i) on September 15, 1997 or (ii) on the
date the Loan has been fully drawn, whichever date occurs earlier.
1.08 "Bank" will mean Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A.
"Rabobank Nederland", established at Amsterdam, The Netherlands.
1.09 "Business Day" will mean any day other than a Saturday, Sunday, any day on
which banking institutions are permitted or required by law, executive
order or governmental decree to remain closed in the City of New York or in
Amsterdam and, with respect to any Interest Period or any information
relating to LIBOR, any day on which dealings in United States Dollars
deposits occur in the London interbank market and banks are open for
business in London.
1.10 "Certificates of Non Encumbrance" will mean the certificates of non
encumbrance issued by the Montemorelos Public Registry and by the Puebla
Public
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Registry evidencing that the Icmosa Property and the Horticolas Property
are free of any Lien, except for existing Liens identified in Annex "E"
hereto.
1.11 "Commitment" will mean the commitment of the Bank to make Advances up to
the maximum amount of USD$10,000,000 (as the same may be reduced pursuant
to Section 2.03(f) hereof.
1.12 "Current Assets" will mean those assets which would be reflected on a
balance sheet prepared in accordance with GAAP as "current assets" but
excluding Intangible Assets and deferred taxes which have been classified
as "current assets".
1.13 "Current Liabilities" will mean (i) all Debt due on demand or within one
year from the date of determination thereof and (ii) all other items which
in accordance with GAAP may be properly classified as "current
liabilities", but excluding deferred tax liabilities which, although not
due within one year from the date of determination thereof, may be
classified as "current liabilities".
1.14 "Current Ratio" will mean the ratio of the sum of Current Assets to the sum
of Current Liabilities.
1.15 "Debt" will mean at any date, (i) all indebtedness for borrowed money and
all obligations to pay the deferred purchase price of fixed assets, (ii)
all obligations evidenced by bonds, debentures, notes or similar
investments, (iii) all obligations as lessee under leases which shall have
been or should be, in accordance with GAAP, recorded as capital leases,
(iv) all obligations of the Borrowers to make payments under noncompete or
royalty agreements, (v) all obligations to reimburse any bank, or other
Person, in respect to amounts paid under a letter of credit and (vi) all
items of indebtedness or liability which in accordance with GAAP, would be
included in determining total liabilities as shown on the liabilities side
of a balance sheet as of the date as of which Debt is to be determined, but
excluding deferred tax liabilities which, although uncertain if and when
due in the future, according to GAAP are classified as Debt.
1.16 "Debt Service Coverage Ratio" will mean for any fiscal year, the net income
plus depreciation plus the deferred tax provision, plus the provision for
Mexico employee profit sharing, plus other non-cash operational expenses
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plus net interest expenses, plus (minus) long term portion of foreign
currency translation losses (gains), minus monetary gains, divided by
interest expenses plus scheduled repayments of term loans.
1.17 "Debt to Tangible Net Worth Ratio" will mean the ratio of the sum of Debt
to the sum of Tangible Net Worth.
1.18 "Drawing" will mean a drawdown of an Advance by the Borrowers pursuant to
Section 2.03.
1.19 "Draw Request" will mean an irrevocable notice from the Borrowers to the
Bank to provide an Advance, which notice will be in form and substance
equal to Annex "B" hereto.
1.20 "Event of Default" will have the meaning set forth in Section 9 hereof.
1.21 "Final Maturity Date" will mean September 30, 1997.
1.22 "Financial Statements" will mean the balance sheet, income statement and
such other supplementary statements (including the notes thereto) as may be
prepared in conjunction therewith.
1.23 "Funding Losses" will mean the costs and expenses incurred by the Bank
arising from or relating to (a) the payment by the Borrowers of all or any
portion of the Loan prior to the due date therefore (or prior to the end of
any period for which the Loan has been funded after default), or (b) the
failure of the Borrowers to draw down funds which have been obtained for
the Borrowers by the Bank pursuant to the terms of this Agreement, in each
case including without limitation (i) any costs or fees relating to such
funding transactions and (ii) any loss or charge from the prepayment of any
loan obtained by the Bank to fund an Advance prior to its maturity.
1.24 "GAAP" will mean those accounting principles applied on a consistent basis
generally accepted from time to time in the certified public accounting
profession of the United States (including those set forth in the Opinions
of the Accounting Principles Board of the American Institute of Certified
Public Accountants or statements of the Financial Accounting Standards
Board which may be applicable at the time in question); and "applied on a
consistent basis" means that the accounting principles observed in the
period covered by any report required
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under the terms of this Agreement are compatible in all material respects
with those applied in any preceding period and report.
1.25 "Xxxx" will mean Grupo Industrial Santa Engracia, S.A. de C.V. established
at Carretera Xxxxxx No. 226 Pte., Cd. Victoria, Xxxxxxxxxx, X.X. 00000,
Xxxxxx.
1.26 "Xxxx Project" will mean the Xxxx investment program to, among others, the
engineering, construction, expansion and operation of the plants and
agricultural operations, specified in the Total Project Cost Statement.
1.27 "Governmental Agency" will mean any ministry, directorate, department,
authority, corporation, or other juridical entity of Mexico, whether
autonomous or not.
1.28 "Governmental Approval" will mean any authorization, approval, consent,
license or opinion of or filing for registration with any ministry,
directorate, department, agency, instrumentality or other juridical entity
of any jurisdiction.
1.29 "Group" will mean The UniMark Group, Inc., established at Argyle, State of
Texas.
1.30 "Guaranty" will mean the guaranty substantially in the form of Annex "D"
hereto, dated as of the date hereof; executed and delivered by Group, as it
may be amended from time to time.
1.31 "Horticolas Power of Attorney" will mean the power of attorney to be
granted by Horticolas as provided in the Horticolas Promise to Mortgage
Agreement.
1.32 "Horticolas Promise to Mortgage Agreement" will mean the promise to
mortgage agreement substantially in the form of Annex "F", to be executed
by Horticolas and the Bank.
1.33 "Horticolas" will mean Industrias Horticolas de Montemorelos, S.A. de C.V.
1.34 "Horticolas Property" will mean a piece of land located in the city of
Montemorelos, Nuevo Xxxx, marked with number II, of the Subdivision Plan,
registered under number 65, Volume 1, Book XVII, Section I PROPERTY, dated
February 20th, 1986, of "Unidad MONTEMORELOS, NUEVO XXXX".
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1.35 "Icmosa" will mean Industrias Citricolas de Montemorelos, S.A. de C.V.
established at Carretera Xxxxxxx Xxxxx Xx.0, X.X. 00000, Xxxxxxxxxxxx,
Nuevo Xxxx, Mexico.
1.36 "Icmosa Power of Attorney" will mean the power of attorney granted the date
hereof by Icmosa as provided in the Icmosa Promise to Mortgage Agreement.
1.37 "Icmosa Project" will mean the Icmosa investment program to, among others,
the engineering, construction, expansion and operation of the plants
specified in the Total Project Cost Statement.
1.38 "Icmosa Promise to Mortgage Agreement" will mean the promise to mortgage
agreement substantially in the form of Annex "F", dated as of the date
hereof executed by Icmosa and the Bank.
1.39 "Icmosa Property" will mean a piece of urban land located in Montemorelos,
Nuevo Xxxx, with a total area of 64,745.23 square meters and registered
under number 437 of Volume V, Book V, Section 1 of Property in the Public
Registry of Property of the city of Montemorelos, State of Nuevo Xxxx; and
a piece of land called "Pezmatlan" located in the Pezmatlan neighborhood of
Tlatlauqui, Puebla, as stated in public deed number 48,450 dated November
30th, 1995 granted before Public Notary number 17 of the city of Puebla,
State of Puebla, and registered in the Public Registry of Property of the
City of Tlatlauqui, State of Puebla, under Volume 46 of Book first under
number 5, folio one hundred and eighty-two.
1.40 "Indebtedness" will mean in regard to any Person all indebtedness
(including guarantees and other contingent obligations) with respect to
borrowed money or for the deferred purchase price of property or services
and all indebtedness of others secured by or benefiting from any Lien or
property or revenues of such Person, whether or not a claim has arisen
under such Indebtedness.
1.41 "Initial Advances" will mean the sums disbursed by the Bank to the
Borrowers pursuant to Section 2.03 hereof, up to the maximum amount of
USD$8,500,000.
1.42 "Intangible Assets" will mean those assets which are (i) deferred assets,
other than prepaid insurance and prepaid taxes; (ii) patents, copyrights,
trademarks, trade names, licenses, permits, franchises, goodwill,
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experimental and research and development expenses, and other similar
intangibles; and (iii) unamortized debt discount and expense.
1.43 "Interest Payment Date" will mean the last day of each calendar quarter,
provided, however, that if any such day is not a Business Day, the relevant
Interest Payment Date will be the next succeeding Business Day, in which
case interest will be calculated accordingly, unless such day would fall in
the next calendar month, in which case such Business Day will be the
immediately preceding Business Day and in which case interest will be
calculated accordingly.
1.44 "Interest Period" will mean the period between the date a Drawing is made
and September 30, 1997. Any Interest Period which would extend beyond the
Final Maturity Date shall instead expire on the Final Maturity Date.
1.45 "Law" will mean any convention or treaty, law, ordinance, decree, rule,
directive, regulation, judicial or arbitral decision, or any voluntary
restraint, policy or guideline not having the force of law but compulsory
in character, and any of the provisions of such Laws binding on or
affecting the party referred to in the context in which the term is used.
1.46 "LIBOR" will mean the rate mentioned at the display of the London Interbank
Offered Rates of major banks for Eurodollar Deposits designated as page
"LIBO" on the Reuters Monitor Money Rates Services (or such other page as
may replace the LIBO page for the purpose of displaying such London
Interbank Offered Rates for Eurodollar Deposits) at or about 11.00 a.m. 2
(two) Business Days prior to the date on which the Borrowers proposes to
make the Drawing to which such rate is to be applicable, or prior to the
commencement of the relevant Interest Period for a period of time equal or
comparable to the Interest Period and in an amount equal or comparable to
the Advance to be disbursed or outstanding during such Interest Period.
1.47 "Lien" will mean any mortgage, charge, pledge, lien, attachment,
encumbrance or other security interest or any segregation of assets or
revenues or other preferential arrangement (whether or not constituting a
security interest and whether or not enforceable in law) with respect to
any present or future assets, revenues or rights to the receipt of income
of the party referred to in the context in which the term is used.
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1.48 "Loan" will mean the aggregate principal amount of the Advances drawn under
this Agreement, not to exceed USD$10,000,000 or the amount actually
outstanding at the time referred to in the context in which the term is
used.
1.49 "Loans" will mean the aggregate principal amount of the Advances or the
amounts actually outstanding under this Agreement and/or any other loan
agreement with the Bank.
1.50 "Loan Documents" will mean this Agreement, the Promissory Notes, the
Mexican Pledge Agreement, the U.S. Pledge Agreement, the Guaranty, each
Draw Request, the Icmosa Promise to Mortgage Agreement, the Horticolas
Promise to Mortgage Agreement, the Mortgages, each Notary Public Notices,
the Powers of Attorney and all other agreements between the Borrowers or
Group, and the Bank, executed pursuant to or in connection with the
transaction contemplated hereby, and all other documents specified in,
required by, and executed pursuant to the terms hereof and all
modifications, renewals, amendments and supplements of any of the
foregoing.
1.51 "Mexico" will mean the United Mexican States.
1.52 "Montemorelos Public Registry" will mean the Public Registry of Property
and Commerce located at Montemorelos, Nuevo Xxxx, Mexico.
1.53 "Mortgages" will mean the mortgages to be created by Icmosa and by
Horticolas on the Property in accordance with the terms and conditions of
the Icmosa Promise to Mortgage Agreement and of the Horticolas Promise to
Mortgage Agreement, to secure the obligations of the Borrowers under this
Agreement.
1.54 "Notary Public Notices" will mean the notices which the notary public
mentioned in the Icmosa Promise to Mortgage Agreement and in the Horticolas
Promise to Mortgage Agreement will provide to the Montemorelos Public
Registry and to the Puebla Public Registry for the purposes provided in
articles 2910 and 3004 of the Civil Codes of the States of Nuevo Xxxx
and Puebla, respectively.
1.55 "Person" will mean any individual, corporation, association, limited
liability corporation, trust, joint stock company, unincorporated
association, joint
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venture, or any other entity and any Governmental Agency.
1.56 "Pledgors" will mean Group, Messrs Xxxxxx Xxxxxxx Xxxxx and Xxxx Xxxxx
Xxxxxxxx Brohez.
1.57 "Potential Event of Default" will mean an event, known to the Borrowers or
which should have been known to the Borrowers pursuant to the circumstances
prevailing at the time, which, if it continued, would constitute an Event
of Default, only with the giving of notice and/or lapse of time and/or the
making of any determination.
1.58 "Progress Report(s)" will mean the monthly issued reports from the
Borrowers, which will express the exact state of the Projects, in
compliance with Section 2.03 (a).
1.59 "Projects" will mean the Xxxx Project, the AgroMark Project and the Icmosa
Project as specified in the Total Project Cost Statement.
1.60 "Promissory Note" will mean the promissory notes signed and delivered by
the Borrowers to the Bank and guaranteed "por aval" by Group evidencing the
obligation of the Borrowers to pay to the Bank the principal amount of an
Advance and the corresponding interest, in the form attached hereto as
Annex "A" hereto.
1.61 "Property" will mean collectively the Icmosa Property and the Horticolas
Property.
1.62 "Puebla Public Registry" will mean the Public Registry of Property and
Commerce located at Tlatlauqui, Puebla.
1.63 "Subsidiary" will mean any corporation or other business entity of which
Group or the Borrowers own or control directly or indirectly fifty percent
(50%) or more of the outstanding capital stock or other ownership interest
having ordinary voting power to elect directors, managers or trustees of
such corporation or other business entity (whether or not capital stock or
other ownership interest of any other class or classes will or might have
voting power upon the occurrence of any contingency) or any corporation or
other business entity otherwise controlled directly or indirectly by Group
or by the Borrowers.
1.64 "Rabobank/UniMark Loan Agreements" will mean the Revolving Loan Agreements
with Security Interest between
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the Borrowers and the Bank dated April 10th, 1997 and the Revolving Credit
Agreement between UniMark Foods, Inc., Simply Fresh Fruit, Inc., UniMark
International, Inc. and Group and the Bank, dated February 12, 1997.
1.65 "Tangible Net Worth" will mean the aggregate of capital and surplus of the
Borrowers minus the sum of the aggregate book value of Intangible Assets as
determined in accordance with GAAP.
1.66 "Total Project Cost Statement" will mean the statement of the Borrowers, in
a form acceptable to the Bank, in which the Borrowers certify to the Bank
that the Borrowers" estimate in USD of the total of costs necessary to
complete the construction and equipping of the Xxxx Project, the AgroMark
Project and of the Icmosa Project, which statement is attached hereto as
Annex "C".
1.67 "USD", "United States Dollars" and the sign "$" will mean the lawful
currency of the United States of America.
1.68 "United States" will mean the United States of America.
1.69 "U.S. Pledge Agreement" will mean the Pledge Agreement executed the date
hereof between Group and the Bank, to create a pledge on all of the stock
issued by UniMark Foods, Inc. to secure the obligations of the Borrowers
under this Agreement and under the promissory Notes.
SECTION 2. THE ADVANCES
2.01 AGREEMENT TO LEND
Subject to the terms and conditions of this Agreement, the Bank hereby agrees to
make the Advances available, and the Borrowers agree to take up the Advances.
2.02 PURPOSE
The Advances will be used by the Borrowers exclusively to contribute in the
financing of the Projects.
2.03 DRAWING
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(a) During the Availability Period and subject to the terms and conditions
hereof, the Borrowers have the right to borrow Advances for amounts of
USD$500,000 (FIVE HUNDRED THOUSAND DOLLARS, UNITED STATES CURRENCY) or
USD$100,000 (ONE HUNDRED THOUSAND DOLLARS UNITED STATES CURRENCY)
increments thereof. This right depends on (i) the progress of the Projects
as stated in the Progress Reports (ii) their compliance with the Total
Project Cost Statement.
(b) A Drawing will be made provided that:
- the Bank, not less than 4 (four) Business Days before 11.00 hours
(London time) before the proposed date on which the Drawing is to be
made, has received a Draw Request from the Borrowers, indicating the
proposed date of Drawing and the amount of the Advance, which notice,
once given, shall be irrevocable;
- the Drawing will be limited to amounts of costs of the Projects
actually incurred and paid or owing by the Borrowers to the date of such
Drawing, less prior Advances made under this Agreement.
After the Availability Period has ended, the Bank shall at no time be
obliged to honor any request for disbursement under the Agreement.
(c) Unless otherwise provided herein, the Initial Advances and each subsequent
Advances may be made upon the Borrowers' request provided that:
- the Bank will have received, in form and substance satisfactory to it,
the documents listed in Section 7.01 hereof at least 4 (four) Business
Days prior to the requested date of Drawing;
- the proposed date of Drawing is a Business Day;
- the Borrowers and Group are in compliance with covenants and Group is
also in compliance with its obligations under the Guaranty;
- the Borrowers' representations and warranties as per Section 5
hereafter are and remain true and valid; and
- no Event of Default has occurred.
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(d) Each subsequent Advance in excess of the sum of the Initial Advances may be
made upon the Borrowers" request provided that the Bank will have received,
in form and substance satisfactory to it, the documents listed in Section
7.02 hereof at least 4 (four) Business Days prior to the requested date of
Drawing.
(e) An Advance will be made available to the Borrowers by transferring the
amount of the Advance in accordance with the Borrowers" disbursement
instructions provided in the Draw Request.
(f) The Commitment shall be automatically reduced if on or prior to June 30,
1997, the additional condition precedents provided in Section 7.02 hereof
have not been fulfilled. The Commitment shall be reduced by an amount equal
to the difference between the aggregate principal amount of the Initial
Advances and the total Commitments.
2.04 INTEREST
(a) The Borrowers, jointly and severally, agree to pay to the Bank on each
Interest Payment Date on the principal outstanding amount of each Advance
during each Interest Period at an annual rate equal to LIBOR plus a margin
of 3.5% per annum.
(b) Interest will accrue on the basis of a year of 360 days and the actual days
elapsed.
(c) If, for whatever reason, the rate of interest of the Loan cannot be
determined by reference to the Xxxxxx'x Screen LIBO Page, the Bank shall
notify the Borrowers in writing forthwith and shall determinate the rate of
interest of the Loan, using offered rates advised to the Bank by any two
(2) of the banks (or by the bank) whose rate(s) was/were last quoted on the
Xxxxxx'x Screen LIBO Page, or if quotations of such banks are not
available, the offered rates advised to the Bank for United States Dollar
deposits by any two major banks in the Amsterdam or New York Interbank
Market. If the services of the Reuter Screen LIBO Page cease to be
available as a result of discontinuations of such services, the Bank shall
notify the Borrowers in writing forthwith and shall determinate the rate of
interest of the Loan, using offered rates advised to the Bank by three (3)
major banks active in the Eurodollar Interbank Market in
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London selected by the Bank after consultation with the Borrowers.
2.05 DEFAULT INTEREST
(a) If the Borrowers fail to make payment when due of any sum hereunder or
under any document provided for hereunder (whether at its stated maturity,
by acceleration or otherwise) the Borrowers will pay to the Bank default
interest on the unpaid amount during the period from and including the date
immediately following such due date to and including the date of the
payment of said sum in full (after as well as before judgment) at the rate
per annum (calculated on the basis of a year of 360 days and actual days
elapsed) equal to the rate as defined in Section 2.04 under (a) plus a
margin of 3% per annum. Such interest will be payable upon demand of the
Bank.
(b) In addition to payment of the interest, referred to in paragraph 2.05 (a),
the Borrowers will indemnify the Bank against any costs and losses
resulting from the failure of the Borrowers to pay when due any amounts due
hereunder.
2.06 REPAYMENT OF LOAN
The Borrowers, jointly and severally, agree to repay the Bank the total
amount of the Loan on the Final Maturity Date.
2.07 PROMISSORY NOTES
(a) The obligations of the Borrowers to pay to the Bank the principal amount of
any Advance and the corresponding interest shall be evidenced by Promissory
Notes duly signed by an authorized officer of the Borrowers in favor of the
bank and guaranteed"por aval"by Group, which shall be dated the date of
each Advance, shall be payable to the order of the Bank at the offices of
the Bank specified in signature page hereof and shall bear interest in
accordance with the terms thereof.
(b) The execution and delivery by the Borrowers of each Promissory Note shall
not limit, reduce or otherwise affect the obligations of the Borrowers
under this Agreement, and the rights and claims of the Bank under each
Promissory Note shall not replace or supersede the rights and claims of
said parties hereunder.
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(c) Payment by the Borrowers of any amount owing under the Promissory Note or
this Agreement shall discharge the liability of the Borrowers in respect of
a corresponding amount owing under this Agreement or the Promissory Notes
respectively.
(d) The Promissory Note shall not be endorsed, negotiated, assigned or
transferred in whole or in part by the Bank otherwise than in connection
with an assignment or transfer to such party of all or part of its rights
arising from this Agreement, which assignment is authorized by the
Borrowers hereby as provided in Article 299 of the General Law of
Negotiable Instruments and Credit Transactions in Mexico.
(e) The creation of the Promissory Note shall in no way constitute a novation
under the laws of The Netherlands of the rights and obligations of the
Borrowers arising from this Agreement.
2.08 PREPAYMENT OF LOAN
(a) The Borrowers are entitled to prepay the outstanding balance of the Loan or
a part of it, in an amount of at least USD$1,000,000 (ONE MILLION DOLLARS,
CURRENCY OF THE UNITED STATES) or multiples thereof, at the end of an
Interest Period, provided however, that the Borrowers have given the Bank 5
(five) days prior written notice, indicating the amount of the prepayment
and the proposed date on which such prepayment is to be made, which notice,
once given, will be irrevocable.
(b) Any amounts prepaid are no longer available to the Borrowers. The Borrowers
will reimburse the Bank the Funding Losses, if any.
2.09 PAYMENTS
(a) All sums payable to the Bank hereunder or under any other Loan Document
will be payable in United States Dollars and in immediately available funds
not later than 11.00 a.m., New York time, on the day in question to the
Bank to its account with the Xxxxxx Guaranty Trust Company of New York, New
York, ABA number 021-000- 238, account number 658.30.747.
(b) Any payments made to the Bank hereunder or under any other Loan Document
will be applied first against costs,
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losses, expenses and indemnities due hereunder; then against fees due; then
against default interest, if any; then against interest due on the Loan;
and thereafter against the principal amount of the Loan.
(c) If any date on which a payment is due hereunder or under any Loan Document
would otherwise fall on a day which is not a Business Day, such due date
will instead fall on the next succeeding Business Day, unless such date
would fall in the next calendar month, in which case such Business Day will
be the immediately preceding Business Day.
2.10 EVIDENTIAL FORCE
The accounts of the Bank shall be prima facie evidence of any amount which the
Borrowers may owe from time to time to the Bank pursuant to this Agreement,
except in case of manifest error.
SECTION 3. YIELD PROTECTION
3.1 TAXES
(a) All sums payable by the Borrowers hereunder or under any document or
instrument provided for hereunder, whether of principal, interest, fees,
expenses or otherwise, will be paid in full and without set-off or
counterclaim, free of any deductions or withholdings. In the event that the
Borrowers are prohibited by Law from making such payments free of such
deductions or withholdings, the Borrowers will pay such additional amounts
to the Bank as may be necessary to ensure that the actual amount received
by the Bank after all deductions or withholdings (and after payment of such
additional amounts) will equal the amount that would have been received by
the Bank if no deduction or withholding were required.
(b) The Borrowers will promptly pay directly to the appropriate taxing
authority any and all present and future taxes, levies, imposts,
deductions, stamp or other duties, filing and other fees or charges and all
liabilities of the Bank or any Affiliate with respect thereto imposed by
Law or by any taxing authority on or with regard to any aspect of the
transactions contemplated by this Agreement or any other Loan Document or
the execution and delivery of this Agreement
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or any other Loan Document, except taxes imposed on the overall net income
of the Bank by the jurisdiction of its incorporation.
The Borrowers will hold the Bank and its respective Affiliates harmless
from any liability with respect to the delay or failure by the Borrowers to
pay any such taxes or charges and will reimburse each of them upon demand
for any such taxes or charges paid by any of them in connection herewith,
whether or not such taxes will be correctly or legally asserted or
otherwise contested or contestable, together with any interest, penalties
and expenses asserted in connection therewith.
(c) Should the Borrowers pay any tax or charge as provided herein or make any
deductions or withholdings from amounts paid hereunder or under any
document or instrument provided for hereunder, the Borrowers will promptly
forward to the Bank official receipts or other evidence acceptable to the
Bank establishing payment of such amounts.
(d) Should the Borrowers be required under this Section 3.01 to pay, or to
reimburse the Bank for any tax or charge by virtue of any change after the
date hereof in any applicable Law, then the Borrowers may prepay the amount
outstanding under the Loan at any time within 5 (five) days after notice of
such change to the Borrowers subject to giving not less than ten Business
Days' irrevocable notice to the Bank.
(e) The Borrowers will furnish the Bank with the receipts for the withholding
taxes paid with regard to the Loan, if any.
3.2 COMPLIANCE COSTS
In the event that under any Law imposed, instituted, amended or given a new
interpretation after the date of this Agreement, the Bank incurs costs for
maintaining any reserves or special deposits against its Advance or any other
costs in connection with this Agreement of complying with such Law, it will
promptly notify the Borrowers thereof and the Borrowers will pay on demand to
the Bank the amount of such costs, in the currency in which such costs were
incurred. The Borrowers may prepay the amount outstanding under the Loan within
5 (five) days after notice of such new costs to the Borrowers subject to giving
not less than ten Business Days' irrevocable notice to the Bank.
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3.3 ILLEGALITY
(a) In the event that it will become unlawful for the Bank to make Advances or
to maintain Advances, then the Commitment will forthwith terminate and the
Borrowers will prepay the amount outstanding under the Loan as provided in
Section 3.04. Upon the occurrence of any such event, the Bank will promptly
notify the Borrowers thereof and will furnish the Borrowers with certified
evidence as to such unlawfulness. The termination of the Commitment will be
effective and the outstanding amount will be due and payable upon the
giving of such notice to the Borrowers.
(b) The Borrowers will hold the Bank harmless from any liability with respect
to any penalty accrued against it due to such unlawfulness and will
reimburse the Bank upon demand for any such penalty paid by the Bank to the
relevant authorities in connection herewith together with any interest and
expenses asserted in connection therewith.
3.4 ADVERSITY PREPAYMENT
If the Borrowers exercise their right to prepay the amount outstanding under the
Loan pursuant to Section 3.01 or 3.02, or if the Borrowers will be required to
prepay the Loan pursuant to Section 3.03, the Borrowers will pay such amounts,
together with interest accrued thereon to and including the date of prepayment
and together with costs and losses (including without limitation any Funding
Losses) of the Bank resulting from such prepayment. Any such prepayment will not
relieve the Borrowers from paying all other amounts payable under this Section
3.
3.5 CURRENCY AND PLACE OF PAYMENT
This is an international loan transaction in which the specification of USD and
payment in USD are of the essence, and except as expressly provided herein USD
will be the currency of account and of payment in all events. The payment
obligations under this Agreement and other Loan Document will not be discharged
by an amount paid in any currency other than the currency specified or in
another place, whether pursuant to a judgment or otherwise.
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In the event that any payment, whether pursuant to a judgment or otherwise, will
be made in a currency other than USD or in a place other than in New York, such
amount will be promptly converted to USD (or such other specified currency) and
transferred to New York under normal banking procedures. In the event that such
payment does not satisfy the obligations of the Borrowers under this Agreement
and each document provided for hereunder, the Bank will be entitled to immediate
payment of, and will have a separate cause of action for, the USD (or such other
specified currency) deficiency in respect of the payments due. In the event that
the transfer and/or conversion of such payment results in receipt by the Bank of
an amount in excess of all amounts then due from the Borrowers hereunder the
Bank will refund the amount of such excess to the Borrowers.
SECTION 4. FEES AND CHARGES
4.1 ARRANGEMENT FEE
The Borrowers will pay the Bank an arrangement fee in an amount equal to 1% (one
percent) over the Commitment, of which fee, 50% (fifty percent) has been paid by
the Borrowers on acceptance by the Borrowers of the commitment letter dated May
12, 1997.
4.2 COMMITMENT FEE
During the Availability Period, the Borrowers, jointly and severally, shall pay
the Bank a commitment fee of 0.5% (half of one percent) per annum over the
average undisbursed amount of the Commitment, which will be due and payable
quarterly, commencing to accrue on the date of signing of this Agreement.
4.3 EXPENSES AND STAMP DUTIES
(a) The Borrowers, jointly and severally, will pay or, as the case may be,
reimburse the Bank promptly upon demand for its respective costs and
expenses (including, without limitation, legal fees) incurred in connection
with (i) the negotiation, preparation and execution of any waiver, consent
or amendment required hereunder, (ii) the determination whether there has
occurred an Event of Default or, (iii) the administration and enforcement
of this Agreement from and after the occurrence of such an Event of
Default. Such fees and expenses will be paid or reimbursed whether or not
they
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arise during the term of this Agreement or whether or not the Bank gives
notice of such Event of Default or demands acceleration of the Loan or
takes other action to enforce the provisions of this Agreement or any
document provided for hereunder.
(b) The Borrowers, jointly and severally, will pay any stamp or documentary
taxes or any similar duties or levies imposed in connection with the
execution, delivery, registration, performance or enforcement of this
Agreement or any other Loan Document.
SECTION 5. REPRESENTATIONS AND WARRANTIES
The Borrowers and Group, jointly and severally, represent, warrant and covenant
to the Bank as follows:
5.01 POWER AND AUTHORITY
The Borrowers are companies incorporated and existing under the laws of Mexico.
Group is a company incorporated and existing under the laws of the United
States. The Borrowers and Group have full power and authority to enter into this
Agreement and other obligations provided for in this Agreement and all other
Loan Document, to execute and deliver this Agreement and all other Loan
Documents, and to perform its obligations hereunder and thereunder.
5.02 AUTHORIZATION OF BORROWING
The Borrowers and Group have taken all necessary action to authorize the
execution and delivery of this Agreement, the Promissory Notes and all other
Loan Document to be executed by the Borrowers and by Group to authorize the
performance and observance of the terms and conditions hereof and thereof.
5.03 GOVERNMENTAL APPROVALS
Any necessary governmental approvals required for the Borrowers with respect to
the Projects, this Agreement, the Promissory Notes or any other Loan Document
provided for hereunder or any payment to be made hereunder or thereunder or for
the performance or enforceability hereof or thereof have been obtained.
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5.04 AGREEMENT BINDING
This Agreement, the Promissory Notes and the other Loan Documents constitute,
when executed and delivered will constitute legal, valid and binding obligations
of the Borrowers and of Group enforceable in accordance with their respective
terms and will constitute direct obligations of the Borrowers and of Group.
The execution, delivery and performance of this Agreement, the Promissory Notes
and the other Loan Documents to be executed by the Borrowers and Group hereunder
and the payment by the Borrowers of all amounts due on the dates and in the
currency provided for herein and therein (a) do not and will not violate or
contravene any provision of Law, (b) will not conflict with the "Estatutos
Sociales" of the Borrowers or with the Articles of Incorporation and By-laws
of the Group, (c) do not and will not conflict with or result in the breach of
any provision of, or in the imposition of any Lien under, any agreement to which
the Borrowers or Group or any of its Subsidiaries is a party or by which it or
any of its properties or assets is bound, and (d) do not and will not constitute
an Event of Default under any such agreement.
5.05 NO DEFAULT IN OTHER AGREEMENTS
The Borrowers and Group are not in default (a) in respect of any Indebtedness or
(b) in respect of any obligation which might affect the validity or
enforceability of this Agreement or any other Loan Document or (c) under any
agreement, obligation or duty to which it is a party or by which it or any of
its properties or assets is bound, which default might have a material adverse
effect on its financial position or results of operations or its ability to
perform its obligations under this Agreement or any other Loan Document.
5.06 LITIGATION
There are no pending or threatened legal actions or arbitration or other
proceedings which may materially adversely affect the financial condition of the
Borrowers or Group or the validity, effectiveness or enforceability of this
Agreement or any other Loan Document.
5.07 WITHHOLDING AND OTHER TAXES
Other than the currently applicable "retencion del impuesto sobre la
renta" there is no withholding, income or other tax or charge of Mexico or
any political subdivision or taxing authority thereof or therein or of any
taxing authority,
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federation or association of which Mexico is member, applicable to any payment
to be made by the Borrowers pursuant to the terms of this Agreement or any other
Loan Document provided for hereunder or to be imposed on or by virtue of the
execution, delivery, performance or enforcement of this Agreement or any other
Loan Document.
5.08 RESIDENCE
The Bank is not or will not be deemed, for taxation or other purposes, to be
resident or domiciled, to have established a place of business or to be carrying
on any business in Mexico by reason only of the execution, delivery, performance
or enforcement of this Agreement or any other Loan Document.
5.09 SOVEREIGN IMMUNITY
The execution, delivery, performance and observance of this Agreement and any
other Loan Document to be executed by the Borrowers hereunder constitute private
and commercial acts and no governmental or public acts and neither the Borrowers
nor any of their assets have any right of immunity on the grounds of sovereignty
or otherwise from any legal action, suit or proceeding, from set-off or
counterclaim, from attachment or from execution or any other legal process in
respect of any of their obligations under or relating to this Agreement or any
other Loan Document, and to the extent they have or may have any such immunity
the consent contained in Section 11.06 hereof is effective and irrevocably
binding on them and their successors and assigns.
5.10 FINANCIAL STATEMENTS
The audited consolidated Financial Statements of the Borrowers and Group for the
period ending 1996 which have been delivered to the Bank are complete and
correct and present the consolidated financial position and the results of
operations of the Borrowers and Group at the date thereof and for the period
then ended in conformity with GAAP, consistently applied. There are no
liabilities (whether direct or indirect, fixed or contingent) of the Borrowers
or Group or any of its Subsidiaries as of the dates of such Financial Statements
that are not reflected therein except as heretofore disclosed in writing to the
Bank. Since the date of such Financial Statements there has been no material
adverse change in the consolidated financial position or
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operations of the Borrowers or Group or any of its Subsidiaries.
5.11 TITLE TO PROPERTIES AND ASSETS
The Borrowers and Group have good and marketable title to all the properties and
assets of which ownership is reflected in the audited balance sheet contained in
the Financial Statements referred to in Section 5.10, except for properties or
assets that have been disposed of in the ordinary course of business. All such
properties and assets are insured against such risks and in such amounts as are
customary for businesses of a like nature in the jurisdiction in which such
properties and assets are located.
5.12 COMPLIANCE WITH LAW
The Borrowers and Group are conducting their business and operations in
compliance with all applicable Laws and are qualified or registered to do
business in every jurisdiction where such qualification or registration is
necessary. The Borrowers and Group have paid all taxes due in respect of the
ownership of its properties and assets or the conduct of its operations except
to the extent that the payment of such taxes is being contested in good faith,
adequate reserves having been provided for the payment thereof.
5.13 COMPLIANCE WITH ENVIRONMENTAL REQUIREMENTS
The Borrowers and Group will take all necessary actions to obtain and maintain
all authorizations, approvals and consents of and/or registrations with all
governmental and regulatory authorities in Mexico or any political subdivision
thereof as shall be necessary or appropriate under the laws of Mexico in
connection with all environmental requirements, in any material aspect, in
connection with the business the Borrowers and Group are engaged in and
especially the development and operation of the Projects.
5.14 MATERIAL ADVERSE FINANCIAL PERFORMANCE
The Borrowers and Group are not aware of any circumstances which may materially
adversely affect the financial condition of the Borrowers or Group or the
validity, effectiveness or enforceability of this Agreement or any other Loan
Document.
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5.15 SURVIVAL / REPEAT OF REPRESENTATION AND WARRANTIES
The representations and warranties set out in this Section 5 will survive the
execution of this Agreement and will be deemed to be repeated at the time of
each Drawing and on each Interest Payment Date.
SECTION 6. COVENANTS OF BORROWERS
In addition to the other undertakings herein contained the Borrowers and Group,
jointly and severally, hereby covenants with the Bank that during the term of
this Agreement, the Borrowers and Group will comply or cause compliance with
each of the following obligations:
6.01 PERFORMANCE OF OBLIGATIONS
The Borrowers will punctually pay all Indebtedness and all amounts due under
this Agreement and each of the other Loan Documents to be executed by the
Borrowers hereunder at the times and on the dates specified herein and therein.
The Borrowers will perform all of their other obligations, undertakings and
covenants under this Agreement and each of the other Loan Documents.
6.02 FINANCIAL STATEMENTS: OTHER REPORTS
(a) The Borrowers and Group will maintain an accounting system to permit
preparation of consolidated and consolidating Financial Statements in
accordance with GAAP, and each of the Financial Statements described below
shall be prepared from such system and records.
(b) As soon as available but not later than 45 (forty five) days after the end
of each calendar quarter, the Borrowers and Group will deliver to the Bank
the unaudited Financial Statements of the Borrowers and Group and
consolidating balance sheet and income statement of the Borrowers and Group
with regard to such preceding quarter, in format prepared in accordance
with GAAP, as referred to under (a) above.
(c) Not withstanding Section 6.02 (b), as soon as available but not later than
10 (ten) days after the end of the Availability Period, the Borrowers will
deliver to the Bank copies of comprehensive and accurate operational and
financial information with regard to the progress and performance of the
Projects, in format prepared in accordance with GAAP, as referred to under
(a) above.
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(d) The Borrowers will permit the Bank and its representatives at all
reasonable times to inspect their respective facilities, activities, books
of account and records, and will cause its employees and accountants to
give their full cooperation and assistance in connection with any such
visits of inspection or any financial conferences called by the Bank. The
Borrowers will also make available such further information concerning
their businesses and affairs as the Bank may from time to time reasonably
request.
(e) The Borrowers will not change their auditors, unless such new auditors are
an independent, publicly accredited and reputable international auditors,
satisfactory to the Bank.
(f) The Borrowers will not change its accounting principles, unless legally
prescribed, in which event the consequences of such change with regard to
the annual results and/or the balance sheet of the Borrowers will be, to
the satisfaction of the Bank, explained.
(g) At the same time as each Financial Statement described in paragraph (b) of
this section is delivered, a certificate signed by the chief financial
officer of the Borrowers and Group stating that a review of the
consolidated activities of the Borrowers and Group for such period has been
made under the supervision of such officer and that the Borrowers and Group
have fulfilled every obligation herein and is not in Default hereunder or,
if the Borrowers or Group are in Default, a description of the nature,
duration, and status of such Default. Also, the certificate shall set forth
the calculations in reasonable detail establishing compliance with the
covenants contained in Section Eight hereof.
6.03 PERFORMANCE AND NOTICE
Borrowers and Group will promptly give notice to the Bank of (a) any substantial
dispute between Group or any of its Subsidiaries and between Group and/or the
Borrowers and any Governmental Agency with respect to taxes or any other matter;
(b) any change in taxes, levies, stamp or other duties, filing or other fees,
imposed by withholding or otherwise, applicable to any aspect of the
transactions contemplated by this Agreement; (c) the occurrence of any Event of
Default; (d) any circumstances which would materially affect the fulfillment by
the Borrowers or by Group of their obligations hereunder or under the Guaranty.
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6.04 MAINTENANCE AND CONTINUITY OF BUSINESS/INSURANCE
(a) The Borrowers and Group will maintain their corporate existence in good
standing and in compliance, in every material aspect, with all applicable
Laws and regulations, will maintain and will cause its Subsidiaries to
maintain their respective corporate rights, privileges and franchises, and
will conduct and will cause its Subsidiaries to conduct their respective
business substantially as such businesses are now conducted and in
compliance with all applicable Laws.
(b) The Borrowers will maintain their properties and assets in good repair,
working order and condition, with insurance coverage of such properties of
assets and insurance against operational risks and liabilities and all
other calamities with coverage and in amounts as are customary for
businesses of a like nature in the jurisdiction in which such properties
and assets are located or in which such businesses are conducted, but in
any event in amounts that exceed the Loan.
(c) The relevant policy or policies as meant in Section 6.04 (b) shall have to
be satisfactory to the Bank. Icmosa and Horticolas shall endorse these
policies in an amount at least equal to the outstanding balance of the Loan
with a clause noting the Bank's interest under this Agreement, a loss payee
clause in favor of the Bank, a notice of cancellation clause in favor of
the Bank and an acknowledgment that the Property will be subject to a Lien
as provided in the Mortgages in favor of the Bank for all legal effects
including, without limitation articles 109 and 110 of the Law Regarding
Insurance Contracts of Mexico (Ley sobre el Contrato de Seguro). The Bank
is hereby irrevocably authorized by Icmosa and by Horticolas to have these
clauses inserted on the insurance policies. At the discretion of the Bank,
the proceeds from such policies will be applied to prepay the Loan or
deposited in an escrow account with the Bank for the purpose of rebuilding,
restoring or replacement of the Property.
(d) The Borrowers shall furnish the Bank with:
- certified copies of the policies as mentioned in Section 6.04 (c);
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- evidence of payment of current insurance-premiums within 10 (ten) days
of their becoming due and payable;
- a certificate from the Borrowers' insurance or insurance brokers,
indicating the properties insured, the amounts and risks covered, the
names of the beneficiaries, the names of the insurers and any special
features of the insurance policies in effect on the date of the
relevant certificate, such certificate to be furnished only once per
calendar year (or, in case of any substantial amendment with respect
to any of the aforementioned items, an additional certificate to be
furnished within 15 (fifteen) days after the occurrence of such
amendment).
(e) Should the Borrowers fail to keep their properties, rights or other
interest insured as aforesaid, the Bank may at the Borrowers' expense
effect or renew such insurance which the Bank considers to be in accordance
with good management practice.
(f) The Borrowers can not enter into any transactions with any Person, other
than on ordinary commercial terms and on an arm's length basis; or enter
into any agreement whereby the Borrowers' income is shared with any Person
which is not a related party; or enter into transactions whereby the
Borrowers might receive less than the ordinary commercial price for any
goods sold or services rendered or might pay more than the ordinary
commercial price for any goods purchased or services procured.
6.05 OTHER OBLIGATIONS
(a) The Borrowers will not guarantee the Indebtedness of third parties or
provide "avales", Liens or other sureties for the obligations of third
parties, except in relation to its normal course of business.
(b) So long as any part of the Loan remains unpaid, the Borrowers will not,
without the prior written approval from the Bank, incur additional
indebtedness, on a consolidated basis, in excess of USD$1,500,000 or the
countervalue thereof in other currency, except for trade accounts payable
and other accrued liabilities in the normal course of business or
indebtedness incurred for financial of seasonal purchase of raw materials.
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(c) Apart from the implementation of the Projects, with capital expenditures as
specified in the Total Project Cost Statement, so long as any part of the
Loan remains unpaid, the Borrowers, on a consolidated basis, will not,
without the prior written approval from the Bank, make capital expenditures
in excess of USD$1,500,000 or the countervalue thereof in other currency,
unless such investments are financed through additional equity
contributions.
6.06 TAXES
The Borrowers and Group will pay and discharge all their taxes and governmental
charges, including without limitation any taxes or governmental charges assessed
against any of their properties or assets, prior to the date after which
penalties attach for failure to pay, except to the extent that such taxes and
governmental charges are being contested in good faith, adequate reserves having
been set aside for the payment thereof. The Borrowers and Group will make timely
filings of all tax returns and governmental reports required to be filed or
submitted under any applicable Laws. The Borrowers will furnish the Bank the
receipts and evidence of the compliance and payment of mandatory deposit
requirements, if any, established by Central Bank of Mexico, the stamp tax and
the withholding taxes paid with regard to the Loan.
6.07 DIVIDEND PAYMENTS
The Borrowers and Group will pay no dividend, and will not make any other
distribution of cash or of other assets to its shareholders or affiliates, in
whatever form, in excess of USD$1,000,000 or in excess of 30% of the annual net
profit on a consolidated basis, which ever is less, or if, after such payment of
dividend, (i) the Borrowers are in default to pay any Indebtedness towards any
creditor at its stated maturity or within any applicable period of grace, (ii)
the covenants of Section 8 of this Agreement are not met and maintained.
6.08 COMPLIANCE WITH LAW AND GOVERNMENTAL APPROVALS
The Borrowers will do and cause to be done all things necessary to comply with
all applicable Law and will obtain all Governmental Approvals which may at any
time be required with respect to the obligations of the Borrowers under this
Agreement or any document provided for hereunder or any amendment or supplement
hereto or thereto and will take all necessary and appropriate action to ensure
the continuance of all Governmental Approvals so obtained to the extent
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necessary for the performance by the Borrowers of such obligations.
6.09 MERGER, SALE OF ASSETS
Neither the Borrowers nor Group, nor any of their Subsidiaries will, without the
prior written consent of the Bank, merge with any other corporation, in any way,
or purchase or otherwise acquire all or substantially all of the properties and
assets of any other corporation, partnership or sole proprietorship or sell,
lease, transfer or otherwise dispose of any non-current asset with a total
bookvalue exceeding USD $750,000 on a consolidated basis.
6.10 POTENTIAL EVENT OF DEFAULT
The Borrowers and Group will promptly notify the Bank of the occurrence of an
Event of Default or a Potential Event of Default, and provide the Bank with full
details of any steps which it is taking, or is considering taking, in order to
remedy or mitigate the effect of the Event of Default or otherwise in connection
therewith but without limitation to the provisions of Section 9 hereof.
6.11 FURTHER DOCUMENTS
The Borrowers and Group will execute all such other documents and instruments
and do all such others acts and things as the Bank may reasonably require to
carry out the transactions contemplated herein or in any other Loan Document
required to be delivered.
6.12 LIENS
The Borrowers will not create or permit to exist any Lien with respect to any of
their properties except for existing Liens identified on Annex "E"
hereto and renewals and extensions thereof permitted by the Bank (ii) Liens for
taxes, assessments or similar charges incurred in the ordinary course of
business.
6.13 SALE OF ASSETS. LEASES.
(a) The Borrowers will not convey, sell, lease, or otherwise dispose of (or
agree to do any of the foregoing at any future time) all or substantially
all or a substantial part of its property or assets or any part of its
property or assets essential to the conduct of its business as presently
conducted. The Borrowers will not
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enter into any lease agreement (other than leases considered as Debt) in
excess of an aggregate amount equal at any time to USD$200,000 per year.
(b) The Borrowers will not convey, sell, lease, or otherwise dispose of any
other assets except for sales of such assets in the ordinary course of
business for a fair and adequate consideration.
6.14 OTHER COVENANTS
(a) The Borrowers will not redeem, amortize or purchase any of its outstanding
shares nor reduce its share capital or refund any part thereof.
(b) The Borrowers will do and cause to be done all things necessary to comply
with all applicable local and World Bank environmental guidelines. The
Borrowers will promptly give notice to the Bank of any substantial change
in the compliance with such guidelines, which change shall be cured within
a period of 90 (ninety) days.
SECTION 7. CONDITIONS OF DRAWING
7.1 INITIAL CONDITIONS PRECEDENT
The obligation of the Bank to make available the Initial Advances is subject to
the fulfillment, as determined by the Bank, of the following conditions
precedent on or prior to the date hereof (except as otherwise indicated below)
and the continued fulfillment of such conditions on the date of each Drawing:
a) AUTHORIZATIONS. The Bank will have received:
i a copy, certified by an appropriate officer of the Borrowers to
be true and correct and in full force and effect, of any
provision of Law and any Governmental Approval relating to the
authority of the Borrowers to enter into this Agreement, the
Promissory Notes and all other Loan Document to be executed by
the Borrowers hereunder and to incur the Indebtedness to be
created hereunder and under any Loan Document to be executed by
the Borrowers;
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ii such evidence as is valid under the laws of Mexico to verify the
authority of the person(s) signing this Agreement and the
Promissory Notes, the Guaranty and any other Loan Document
legally to bind the Borrowers and Group and the authority of each
person who will sign the other statements, reports, certificates
and documents called for by the terms of this Agreement and will
otherwise act under this Agreement or any other Loan Document,
for and on behalf of the Borrowers and of Group;
iii the specimen signature of each person named pursuant to Section
7.01(a) (ii), certified by an appropriate official of the
Borrowers and of Group to be a true specimen thereof; and
(b) DRAW REQUEST. The Bank will have received from the Borrowers in connection
with each Initial Advance a Draw Request, duly executed by the Borrowers.
(c) MORTGAGE. The Bank will have received from Icmosa the Icmosa Promise to
Mortgage Agreement duly executed by it.
(d) PLEDGE AGREEMENT. The Bank will have received the Amended Mexican Pledge
Agreement and the U.S. Pledge Agreement duly executed by the Pledgors and
by Group.
(e) OPINION. The Bank will have received the favorable opinion of the legal
counsel to Group addressed to the Bank and dated the date of the Agreement.
(f) PROMISSORY NOTE. The Bank shall have received in connection with each
Initial Advance the relevant Promissory Note.
(g) POWERS OF ATTORNEY. The Bank will have received a copy of the notarized
instrument evidencing the Icmosa Power of Attorney.
(h) POTENTIAL EVENT OF DEFAULT. The Bank will have received a written
confirmation by the Borrowers that no Event of Default nor Potential Event
of Default has occurred and is continuing.
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(i) AUTHORIZATIONS. The Bank will have received a written confirmation by the
Borrowers that, to the best of their knowledge, the Projects qualify for
all authorizations, approvals and consents and/or registrations with all
governmental and regulatory authorities in Mexico of any political
subdivision thereof as shall be necessary or appropriate under the laws of
Mexico.
(j) GUARANTY. The Bank will have received from Group the Guaranty duly executed
in favor of the Bank in form and substance satisfactory to the Bank.
(k) NOTICE TO PUBLIC REGISTRY. The Bank will have received copy of the Notary
Public Notice, as provided in the Icmosa Promise to Mortgage Agreement duly
filed for recordation before the Montemorelos Public Registry and the
Puebla Public Registry.
(l) CERTIFICATE OF NON ENCUMBRANCE. The Bank will have received copy of the
Certificates of Non Encumbrance related with the Icmosa Property and the
Horticolas Property.
(m) FINANCIAL STATEMENTS. The Bank will have received copy of the Financial
Statements referred to in Section 5.10 of this Agreement.
(n) FURTHER CONDITIONS PRECEDENT. Upon each Drawing by the Borrowers of the
Loan, the Borrowers will be deemed to represent and warrant to the Bank
that:
- as of the date of the Drawing no Event of Default has occurred;
- all the representations and warranties of the Borrower contained in
this Agreement are true and correct as of the date of the Drawing;
- all the covenants of the Borrowers set forth in this Agreement will
have been fully met and performed to the extent required as of the
date of the Drawing;
- all of the conditions of the Drawing required under this Section 7
have been met as of the date of the Drawing and all documents
delivered to the date of the Drawing as conditions precedent will
continue to be in full force and effect.
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7.2 ADDITIONAL CONDITIONS PRECEDENT
The Bank will not be obligated to make any subsequent Advance (other than the
Initial Advances) until the following additional conditions precedent have been
satisfied prior to June 30, 1997, and as of the date of making the corresponding
subsequent Advance (other than any Initial Advance) and after giving effect
thereto:
(a) AUTHORIZATIONS. The Bank will have received certified copy of the public
deed which will protocolize the minutes of the General Shareholders
Meeting of Horticolas authorizing (i) the amendment of the "Estatutos
Sociales"of Horticolas, in order to provide in its corporate purpose that
the company may guaranty obligation of third parties, (ii) the execution
of the Horticolas Promise to Mortgage Agreement and the corresponding
Mortgage, and (iii) the granting of the Horticolas Power of Attorney.
(b) MORTGAGE. The Bank will have received from Horticolas the Horticolas
Promise to Mortgage Agreement duly executed by it. (c) Powers of Attorney.
The Bank will have received a copy of the notarized instrument evidencing
the Horticolas Power of Attorney.
(d) NOTICE TO PUBLIC REGISTRY. The Bank will have received copy of the Notary
Public Notices, as provided in the Horticolas Promise to Mortgage
Agreement, duly filed for recordation before the Montemorelos Public
Registry.
(e) CERTIFICATE OF NON ENCUMBRANCE. The Bank will have received copy of the
Certificate of Non Encumbrance related with the Horticolas Property.
(f) PROMISSORY NOTE. The Bank shall have received in connection with each
subsequent Advance the relevant Promissory Note.
(g) DRAW REQUEST. The Bank will have received from the Borrowers a Draw
Request, duly executed by the Borrowers.
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(h) FURTHER CONDITIONS PRECEDENT. All the conditions precedent provided in
Section 7.01 paragraph (o), have been satisfied.
SECTION 8. FINANCIAL COVENANTS
So long as any Commitment is outstanding, any part of the Loan remains unpaid,
or any contingent part of the Loan continues to exist, or until the Bank agrees
to the contrary and the Borrowers receive prior written consent to the contrary
from the Bank, the Borrowers and Group will comply or cause compliance with each
of the following covenants, each of which shall be tested at fiscal year-end
using the audited consolidated Financial Statements required to be delivered
hereby:
8.1 MINIMUM TANGIBLE NET WORTH
Group and its Subsidiaries will maintain a Minimum Tangible Net Worth on a
consolidated basis of at least $34,000,000.
8.2 CURRENT RATIO
Group and its Subsidiaries will maintain a Current Ratio on a consolidated basis
of at least of 1.5
8.3 MAXIMUM LEVERAGE
Group and its Subsidiaries on a consolidated basis, will maintain a Debt to
Tangible Net Worth Ratio which shall not exceed 1.0
8.4 DEBT SERVICE
The Group and its Subsidiaries on a consolidated basis will maintain a Debt
Service Coverage Ratio, of at least 1.5
SECTION 9. EVENTS OF DEFAULT
9.1 EVENTS OF DEFAULT
Each of the following events and occurrences will constitute an Event of Default
under this Agreement:
(a) The Borrowers fails to pay any principal of the Loan or any interest on the
Loan or any other amount payable under this Agreement and such failure
is not remediable
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or, if remediable, continues unremedied and such failure for a period of 2
(two) days after notice from the Bank to the Borrowers with respect
thereto.
(b) Any representation or warranty made or deemed to be made by the Borrowers
herein will have been incorrect or misleading in any material respect when
made or confirmed, or any certificate or opinion furnished under this
Agreement proves to have been false or misleading as of its date in any
material respect.
(c) The Borrowers fail to perform or violate any provision of this Agreement
(other than a default or violation referred to elsewhere in this Section
9) and such failure or violation is not remediable or, if remediable,
continues unremedied for a period of 30 (thirty) days after notice from
the Bank to the Borrowers with respect thereto.
(d) Any other Indebtedness in excess of USD$500,000 (FIVE HUNDRED THOUSAND
DOLLARS, UNITED STATES CURRENCY) of the Borrowers/Group and/or
Subsidiaries, towards any creditor will not be paid at its stated maturity
or within any applicable period of grace, whichever is later, or by reason
of its default which will have continued for more than any applicable
period of grace, will become due or be declared due prior to its stated
maturity and remains unremedied for a period of 30 days thereafter.
(e) Any registration, license, authorization, consent or approval necessary in
relation to the purchase, development and operation of Borrowers' land and
facilities in Montemorelos, Nuevo Xxxx, and Ciudad Victoria,
Tamaulipas and in Xxxx Xxxxxx, Veracruz and/or to enable the Borrowers to
comply with its obligations hereunder is revoked, withdrawn, modified or
withheld or will otherwise fail to remain in force and effect.
(f) The Borrowers or Group changes, or threatens to change, ceases or
threatens to cease business as presently conducted other than in the
normal course of business or if the assets comprising the cease to be used
in the normal operation of the Borrowers, without the prior written
consent of the Bank;
(g) The Borrowers or Group will be unable, or admit in writing its inability
to pay its debts as they mature, make an assignment for the benefit of
creditors, or commit any act of bankruptcy, or any encumbrance takes
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possession or any order relating to dissolution, liquidation, bankruptcy
or insolvency or for the appointment of a liquidator or receiver or
juridical administrator or trustee or the levy of any execution will be
passed, commenced or made with respect to it or any of its assets.
(h) A distress or execution or writ of seizure and sale or attachment is
levied upon or issued against any of the property or assets of a certain
substantial amount of the Borrowers or Group which is not discharged
within 30 days thereof.
(i) This Agreement, the Promissory Notes and/or the Guaranty, or any other
Loan Document, or any provision thereof is or becomes or is claimed to be,
for any reason, invalid or unenforceable or at any time it is unlawful or
impossible for the Borrowers or for Group to perform any of their
obligations hereunder or under the Guaranty or it is unlawful or
impossible for the Bank to exercise any of its rights hereunder or
thereunder.
(j) Group fails - for any reason - to duly perform any of its obligations
hereunder and under the Guaranty.
(k) Any arbitration award, judgment or decree for money damages or for a fine
or penalty is entered against the Borrowers or by the Borrowers, which in
the sole opinion of the Bank may or will substantially affect the Bank's
rights under this Agreement.
(l) Any competent Governmental Agency takes (i) any action to condemn, seize,
requisition or otherwise appropriate any substantial portion of the
properties or assets of the Borrowers or any of their Subsidiaries (either
with or without payment of compensation) or (ii) any action which, in the
opinion of the Bank, adversely affects the Borrowers' ability to pay its
Indebtedness hereunder.
(m) Mexico or any competent authority thereof declares any moratorium on the
payment of Indebtedness by it, by any Government Agency or by any
juridical entity domiciled or resident in Mexico; Mexico commence
negotiations generally with its creditors with a view to a general
readjustment or rescheduling of its Indebtedness; Mexico cease to be a
member in good standing of the International Monetary Fund fully eligible
to purchase USD and other currencies in exchange for the currency of such
country or such country ceases to be a member of the International Bank of
Reconstruction and
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Development; the international monetary reserves of Mexico become subject
to any Lien; or such country segregates all or a portion of its foreign
exchange assets or earnings for the benefit of any creditor or class of
creditors, only to the extent that such situation affects the Borrowers'
capacity to meet their debt obligations under the Loan.
(n) The Borrowers' amount of its authorized share capital is decreased without
the Bank's prior written approval.
(o) All or any of the Borrowers'/Group's properties or rights are nationalized
or expropriated.
(p) If, without the prior written approval of the Bank, the shareholdings'
structure of the Borrowers have been changed or a change has occurred in
the ownership of the Borrowers or in the controlling ownership of the
shareholders of the Borrowers or in the controlling ownership of their
major Subsidiaries.
(q) The Bank is of the reasonable and justifiable opinion that any of its
claims or rights under this Agreement, and/or the Guaranty and/or any
other Loan Document is in jeopardy. Group and/or UniMark Foods, Xxx.Xxxxx
and/or UniMark Foods, Inc. (r) The Mortgages on the Property are not
created within the term and in the form as provided in the Icmosa Promise
to Mortgage Agreement and on the Horticolas Promise to Mortgage Agreement.
(s) Any Lien against the Property or any other property of the Borrowers is
filed or attached and is not discharged, or suitable bond is not made to
prevent the enforcement thereof to the Bank"s satisfaction.
(t) The Borrowers shall fail to deliver to the Bank within 5 (five) Business
Days of the date hereof, notarized, certified copy of the notice to the
Montemorelos Public Registry, duly signed by an authorized officer of
Union de Credito Xxxxxxx, X.X. de C.V. Organizacion Auxiliar de
Credito requesting the cancellation of the Lien on the Horticolas Property
and the Icmosa Property located in Montemorelos registered in favor of
Union de Credito Xxxxxxx, X.X. de C.V. Organizacion Auxiliar de
Credito.
(u) The occurrence of a Default or Event of Default (as defined in each of the
Rabobank/UniMark Loan Agreements) under any instrument or document
evidencing, securing or
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guaranteeing a debt owed by the Borrowers and/or Group and/or UniMark
Foods, Inc. to the Bank.
9.2 CONSEQUENCE OF DEFAULT
If an Event of Default will occur and be continuing the Bank will:
(a) by written notice to the Borrowers declare the entire Loan together with
accrued interest, costs and losses (including without limitation any
Funding Losses) of the Bank resulting from such Event of Default and any
other sum payable hereunder or under any document provided for hereunder
to be immediately due and payable and the Loan will thereupon become due
and payable without presentment, demand, protest or notice of any kind,
other than the notice specifically required by this Section, all of which
are expressly waived by the Borrowers; or
(b) by written notice to the Borrowers terminate any undrawn portion of the
Commitment, such termination to be effective upon the giving of such
notice; or
(c) by written notice to the Borrowers take the actions specified in both (a)
and (b) of this Section 9.02.
No waiver of any Event of Default will constitute a waiver of any other or any
succeeding Event of Default except to the extent provided in such waiver.
SECTION 10. CHANGES IN CIRCUMSTANCES
(a) If the Bank shall determine that by reason of circumstances affecting
generally the London Interbank Market and the alternative Interbank
Markets in Amsterdam and New York, adequate and reasonable means do not or
will not exist for ascertaining the interest rate applicable to any
Interest Period, the Bank shall give written notice to the Borrowers of
such determination (hereinafter called the "Determination Notice").
In such event the obligation of the Bank under this Agreement shall
forthwith cease until further notice by the Bank. The Bank and the
Borrowers shall, after giving by the Bank of the Determination Notice,
negotiate in good faith in order to agree upon a mutually satisfactory
interest rate and interest period to be
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substituted for those which would otherwise have applied pursuant to this
Agreement.
If the Bank and the Borrowers are unable to agree upon such substitute
interest rate and interest period within a period of 30 (thirty) days from
the date of the Determination Notice, the Bank shall promptly and
reasonably set a substitute interest rate and interest period, all to take
effect from the commencement of the Interest Period in respect of which
the Bank gave the Determination Notice, which rate shall be the aggregate
of the margin indicated in Section 2.4 (a) plus the Bank's cost of funding
the Loan during the interest period so set. In the event that the state of
affairs referred to above in this Section shall extend beyond the end of
any Interest Period so agreed or set, the foregoing procedure shall be
repeated as often as may be necessary. The Borrowers shall pay to the Bank
interest on the Loan at the interest rate so agreed or set. The Borrowers
shall be at liberty at any time after the Bank shall have set an interest
rate as aforesaid and such interest rate continues to be applicable,
subject to its giving to the Bank of not less than 30 (thirty) Business
Days' prior written notice, to prepay to the Bank, at the Borrowers'
option, the whole or part of the Loan at the expiration of such notice and
otherwise in accordance with and subject to the provisions of Section 10
(c).
(b) If the Bank shall determine that by reason of circumstances affecting
generally the London Interbank Market and the alternative Interbank
Markets in Amsterdam and New York, the Bank is unable to obtain deposits
of United States Dollars in any of such markets in sufficient amount for
any Interest Period, the Bank shall give written notice to the Borrowers
of such determination. In such event the obligations of the Bank under
this Agreement shall forthwith cease until further written notice by the
Bank and the Borrowers shall prepay to the Bank, at the Borrowers' option
the whole or part of the Loan on the next following Interest Payment Date
and such prepayment shall be made in accordance with and subject to the
provisions of Section 10 (c.)
After giving of the aforesaid written notice the Bank and the Borrowers
shall negotiate in good faith in order to agree terms for converting the
Loan into facilities expressed in an Eurocurrency other than United States
Dollars, or to agree terms for another mutually
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satisfactory arrangement, provided that the Bank shall be under no
obligation to continue such negotiations if terms have not been agreed
within 10 (ten) days after the giving of the aforesaid notice.
(c) In the case of prepayment of the Loan by the Borrowers pursuant to Sections
10 (a) or 10 (b) the Borrowers shall pay at the same time:
(i) all accrued interest on the Loan to be prepaid; and
(ii) the Funding Losses and the prepayment fee as mentioned in Section 2.05
(b) and 2.07 (b).
SECTION 11. MISCELLANEOUS
11.01 TERM
The term of this Agreement will commence on the date first set forth above and
will end on the Final Maturity Date hereunder.
Notwithstanding the foregoing, this Agreement will remain in full force and
effect until payment in full of all principal, interest and other sums payable
by the Borrowers hereunder and any other document provided for hereunder. The
indemnities of the Borrowers will survive the term of this Agreement and the
repayment of the Loan.
11.02 ENTIRE AGREEMENT
This Agreement and the documents provided for hereunder constitute the entire
obligation of the parties hereto with respect to the subject matter hereof and
will supersede any prior expressions of intent or understandings with respect to
this transaction. The written consent of the Bank will be required for an
amendment to this Agreement or any waiver of the terms hereof.
11.03 WAIVER: CUMULATIVE RIGHTS
The failure or delay of the Bank to require performance by the Borrowers of any
provision of this Agreement will not affect its right to require performance of
such provision unless and until such performance has been waived by the Bank in
writing in accordance with the terms hereof. Each and every right granted to the
Bank hereunder or under any other document delivered hereunder or in connection
herewith, or
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allowed to any of them, will be cumulative and may be exercised in part or in
whole from time to time.
11.04 ASSIGNMENT AND PARTICIPATION
This Agreement will be binding upon and will be enforceable by the Borrowers,
the Bank, their respective successors and assignees.
The Borrowers will have no right to assign its rights or obligations hereunder.
The Bank is entitled to assign all or a part of its rights and obligations
hereunder without prior written notice to the Borrowers. Upon an assignment by
the Bank, the Bank as used herein will be deemed to refer to such assignee to
the extent of its interest thereunder and it will be entitled to the benefit of
all indemnities and tax reimbursements of the Bank pursuant to this Agreement as
fully as if a party hereto.
11.05 MODIFICATIONS
No modification of any provision of this Agreement, or consent to any departure
from or supplement, amendment or termination of the terms hereof, the other Loan
Documents or any other document, shall be effective unless such is in writing
and signed by the Bank which may be given in its sole discretion, and any such
waiver shall be effective only for the specific instance given.
11.06 GOVERNING LAW
This Agreement will be governed by and interpreted in accordance with the Laws
of the Netherlands, except for the provisions related with the Promissory Notes
which will be governed by and interpreted in accordance with the laws of New
York and Mexico.
11.07 SUBMISSION TO JURISDICTION
The Borrowers and Group (except for the Guaranty) hereby irrevocably consent
that any legal action or proceedings against it or any of its property with
respect to this Agreement or any document provided for hereunder may be brought
in courts in Mexico or courts in any jurisdiction where assets of the Borrowers
may be found, or all of them, as the Bank may elect, and by execution and
delivery of this
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Agreement the Borrowers hereby submit to and accept with regard to any such
action or proceeding for itself and in respect of its property, generally and
unconditionally, the jurisdiction of the aforesaid courts. The Borrowers
expressly waive any other jurisdiction.
11.08 SET-OFF
The Bank will have the right to set-off or to apply amounts on deposit or
account with the Bank in reduction of amounts past due hereunder to the extent
permitted by Law, regardless of the currency of such amounts. The Borrowers
hereby authorize the Bank in the name of the Borrowers to do all such acts and
to execute all such documents and instruments as may be necessary or expedient
to effect any such set-off or application.
11.09 NOTICES
Unless otherwise specifically provided for herein, any notice required or
permitted to be given hereunder will be in writing and will be (a) personally
delivered, (b) delivered by internationally recognized courier service, or (c)
transmitted by telex or cable to the parties as follows (as elected by the party
giving such notice):
To the Borrowers:
INDUSTRIAS CITRICOLAS DE MONTEMORELOS, S.A. DE C.V.
Xxxxxxxxx Xxxxxxx Xxxxx Xxxxxxxxx 0
Xxxxxxxx 00
Xxxxxxxxxxxx, Xxxxx Xxxx
Xxxxxx
To Group:
THE UNIMARK GROUP, INC.
XxxXxxx Xxxxx, X.X. Xxx 000
Xxxxxx, Xxxxx 00000
X.X.X.
for the attention of
Fax No.
-------------------
To the Bank:
Rabobank Nederland
X.X. Xxx 00000
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3500 HG Utrecht
The Netherlands
for the attention of Xx. Xxxxxx Xxxxxx /APFT (UC - B43928)
Fax: (00 00) 000 00 00
with a copy of such notice to
Rabobank Nederland Representative Office:
Bosques de Alisos Xx. 00-X, Xxxx 0
Xxxxx. Xxxxxxx xx las Xxxxx
XX 00000 Xxxxxx D.F.
for the attention of Mr. Ad Gerritsen
Fax: (00 0) 000-0000
Except as otherwise specified herein, all notices and other communications will
be deemed to have been duly given on (i) the date of receipt if delivered
personally or by courier, (ii) the date of transmission with confirmed
answerback of transmitted by telex or cable, whichever will first occur;
provided that any notice to be given to one of the parties will be effective
only when actually received by such party.
All notices hereunder and all documents delivered in connection with this
transaction will be in the English language.
11.10 COUNTERPARTS
This Agreement may be signed in any number of counterparts. Any single
counterpart or a set of counterparts signed, in either case, by all the parties
hereto will constitute a full and original agreement for all purposes.
11.11 COSTS AND EXPENSES
The Borrowers shall pay all costs and expenses derived from the negotiation,
execution and preparation of this Agreement, including the costs and expenses
regarding its drafting, negotiation, translation, formalization and recordation
in the Montemorelos Public Registry and in the Puebla Public Registry of any
document or agreement established herewith. The Borrowers shall pay to the Bank
any cost or expense incurred by the Bank in connection with the enforcement of
this Agreement and/or any document or agreement established herewith.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their respective duly authorized representatives as of the day and year first
written above.
The Borrowers
---------------------------- ----------------------------
Industrias Citricolas de Grupo Industrial Santa
Montemorelos, S.A. de X.X. Xxxxxxxx, S.A. de C.V:
By: By
------------------------- -------------------------
Title: Title:
---------------------- ---------------------
------------------------------
AgroMark, S.A. de C.V.
By:
----------------------
Title:
-------------------
Group The Bank
---------------------------- ----------------------------
The UniMark Group, Inc. Cooperatieve Centrale
Raiffeisen-Boerenleenbank
B.A. ("Rabobank Nederland")
By: By:
------------------------- -------------------------
Title: Title:
---------------------- ----------------------
