EXHIBIT 2.1
EXECUTION COPY
- --------------------------------------------------------------------------------
CREDIT AGREEMENT
DATED AS OF FEBRUARY 26, 2004
among
CONSTRUCTORA INTERNACIONAL DE INFRAESTRUCTURA, S.A. DE C.V.,
as Borrower,
THE LENDERS FROM TIME TO TIME PARTY HERETO,
and
WESTLB AG, NEW YORK BRANCH,
as Facility Administrative Agent
- --------------------------------------------------------------------------------
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms................................................................. 2
SECTION 1.02. Accounting Terms and Principles; Rules of Construction................................ 6
SECTION 1.03. Scope of Agreement.................................................................... 6
SECTION 1.04. Rules of Construction................................................................. 6
ARTICLE II
LOANS
SECTION 2.01. Construction Loans.................................................................... 6
SECTION 2.02. Contingency Loans..................................................................... 7
SECTION 2.03. Facility Notes........................................................................ 8
SECTION 2.04. Making the Borrowings................................................................. 8
SECTION 2.05. Non-Receipt of Funds by the Facility Administrative Agent............................. 10
SECTION 2.06. Continuation/Conversion............................................................... 12
SECTION 2.07. Other Terms Relating to the Making and Continuation/Conversion
of Loans.............................................................................. 13
SECTION 2.08. Interest.............................................................................. 14
ARTICLE III
PAYMENTS
SECTION 3.01. Payments and Computations............................................................. 15
SECTION 3.02. Prepayments........................................................................... 16
SECTION 3.03. Increased Cost and Reduced Return; Additional Interest; Capital
Adequacy.............................................................................. 16
SECTION 3.04. Sharing of Payments, Etc.............................................................. 18
SECTION 3.05. Fees.................................................................................. 19
SECTION 3.06. Replacement of Lenders................................................................ 19
ARTICLE IV
CONDITIONS PRECEDENT
SECTION 4.01. Conditions Precedent to the Closing Date and the Initial Borrowing.................... 19
SECTION 4.02. Conditions Precedent to Each Borrowing................................................ 20
ARTICLE V
REPRESENTATIONS AND WARRANTIES
-i-
SECTION 5.01. Representations and Warranties of the Borrower........................................ 21
ARTICLE VI
COVENANTS OF THE BORROWER
SECTION 6.01. Affirmative Covenants................................................................. 21
SECTION 6.02. Negative Covenants.................................................................... 21
SECTION 6.03. Reporting Obligations................................................................. 21
ARTICLE VII
EVENTS OF DEFAULT
SECTION 7.01. Events of Default; Remedies........................................................... 21
ARTICLE VIII
THE FACILITY ADMINISTRATIVE AGENT
SECTION 8.01. Appointment of Facility Administrative Agent.......................................... 22
SECTION 8.02. Treatment of Lenders.................................................................. 23
SECTION 8.03. Repayment by Lenders to Facility Administrative Agent................................. 23
SECTION 8.04. Adjustments Among Lenders............................................................. 24
SECTION 8.05. Exchange of Information............................................................... 24
SECTION 8.06. Amendment of Article VIII............................................................. 25
SECTION 8.07. Credit Decision....................................................................... 25
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Incorporation of Miscellaneous Provisions by Reference................................ 25
SECTION 9.02. Amendments, Etc....................................................................... 25
SECTION 9.03. Notices, Etc.......................................................................... 26
SECTION 9.04. Right of Set-off...................................................................... 26
SECTION 9.05. Binding Effect........................................................................ 26
SECTION 9.06. Assignments and Participations........................................................ 26
SECTION 9.07. Confidentiality; Use of Name.......................................................... 29
SECTION 9.08. GOVERNING LAW, SUBMISSION TO JURISDICTION, ETC........................................ 29
SECTION 9.09. Execution in Counterparts............................................................. 30
SECTION 9.10. Severability.......................................................................... 30
SECTION 9.11. Entire Agreement...................................................................... 30
-ii-
SCHEDULES:
Schedule 1 - Commitments; Percentages
EXHIBITS:
Exhibit 2.03-A - Form of Construction Loan Note
Exhibit 2.03-B - Form of Contingency Loan Note
Exhibit 2.04(c) - Form of Interest Rate Notice
Exhibit 2.06(a) - Form of Notice of Continuation/Conversion
Exhibit 9.06(a) - Form of Assignment
-iii-
EXECUTION COPY
CREDIT AGREEMENT
Dated as of February 26, 2004
THIS CREDIT AGREEMENT is made by and among:
(i) CONSTRUCTORA INTERNACIONAL DE INFRAESTRUCTURA, S.A. DE C.V., a
sociedad anonima de capital variable organized under the laws of Mexico (the
"Borrower");
(ii) Each of the banks and the other financial institutions listed on the
signature pages hereto as a "Lender" and any of their assignees that may from
time to time become a party hereto (each individually a "Lender" and,
collectively, the "Lenders"); and
(iii) WESTLB AG, NEW YORK BRANCH, as administrative agent (together with
its successors and assigns in such capacity, the "Facility Administrative
Agent") for the Lenders.
PRELIMINARY STATEMENTS
1. Pursuant to the International Public Bid (Licitacion Internacional
Publica) No. 18164093-011-02 (the "RFP"), the Borrower has been awarded a
contract to develop and construct a hydroelectric generating plant to be located
in the La Yesca and Santa Maria del Oro municipalities of the State of Nayarit,
Mexico, which construction shall be in accordance with the terms, conditions and
specifications set forth in the Bid (as hereinafter defined) for the Project (as
hereinafter defined) and the Mixed Financed Public Works Contract (Contrato
Mixto de Obra Publica Financiada), dated March 26, 2003, entered into by the
Borrower and the Comision Federal de Electricidad ("CFE").
2. Pursuant to the Common Agreement (as defined herein), the Borrower, the
Credit Representatives (as defined herein), the Lenders and the other Creditors
(as defined herein) have agreed to certain common representations and
warranties, covenants, conditions to disbursements, events of default and other
terms that are complementary to and form a part of the Lenders' loan agreement
with the Borrower.
3. The Borrower desires that the Creditors provide an up to
U.S.$629,381,031 construction facility and up to U.S.$53,000,000 contingency
facility for the Project (as defined herein) and the Lenders are willing to
provide financing subject to and in accordance with the terms and conditions
hereof and those contained in the Common Agreement.
4. The Borrower will use the proceeds of all loans made in accordance with
the terms and conditions hereof and those contained in the Common Agreement to
pay Project Costs.
Accordingly, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. All capitalized terms used and not
defined herein shall have the respective meanings assigned thereto in the Common
Agreement; provided, however, that the following terms shall have the respective
meanings assigned thereto as follows:
"Agreement" means this Credit Agreement.
"Applicable Margin" means, on any date of determination, for a Base Rate
Loan: 3.25% per annum, or for a LIBO Rate Loan: 3.00% per annum.
"Assignee" has the meaning assigned thereto in Section 9.06(a).
"Assignment" means an assignment and assumption agreement entered into by
a Lender and an Assignee pursuant to Section 9.06(a), and accepted by the
Facility Administrative Agent, or an assignment and assumption agreement entered
into by a Lender and a non-Defaulting Lender pursuant to Section 2.05(c), in
either case in substantially the form of Exhibit 9.06(a) hereto.
"Availability Period" means, with respect to the Construction Loan and
Contingency Loan facilities, the period from the Execution Date until the
earliest of (i) the date that is thirty (30) days after the Execution Date in
the event that the Closing Date shall not have occurred by such date, (ii) full
utilization of the amounts available under the aggregate Commitments, and (iii)
the Loan Maturity Date (as such date is determined in accordance with the terms
of the Common Agreement).
"Base Rate" means, for any day, a fluctuating interest rate per annum
(rounded upwards, if necessary, to the nearest 1/100th of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers, as
published for such day by the Federal Reserve Bank of New York, or, if such rate
is not so published for any day, the Federal funds rate for such day shall be
the rate for the most recent day for which such rate was so published.
"Base Rate Loan" means a Loan that earns interest at a rate per annum
determined by reference to the Base Rate.
"Borrower" has the meaning assigned thereto in clause (i) of the
introductory paragraph to this Agreement.
"Commitments" means, collectively, the Construction Loan Commitments and
Contingency Loan Commitments.
"Common Agreement" means the Common Agreement, dated as of the date
hereof, among the Borrower, WestLB AG, New York Branch, as Intercreditor Agent,
the Lenders, WestLB AG, New York Branch, as Facility Administrative Agent,
Citibank, N.A., as Note Trustee, Banco Santander Central Hispano, S.A., New York
Branch, as Offshore Collateral Agent, Banco Santander Mexicano, S.A., as Onshore
Collateral
-2-
Agent, and the other Creditors and Creditor Representatives from time to time
party thereto.
"Confidential Information" has the meaning assigned thereto in Section
9.07.
"Construction Loan Commitment" has the meaning assigned thereto in Section
2.01(a)(i).
"Construction Loans" has the meaning assigned thereto in Section
2.01(a)(i).
"Construction Note" has the meaning assigned thereto in Section 2.03.
"Contingency Loan Commitment" has the meaning assigned thereto in Section
2.02(a)(i).
"Contingency Loans" has the meaning assigned thereto in Section
2.02(a)(i).
"Contingency Note" has the meaning assigned thereto in Section 2.03.
"Continuation/Conversion", "Continue/Convert" or "Continued/Converted"
each refers to a continuation or conversion of Loans (or any ratable portion
thereof) pursuant to Section 2.06.
"Defaulting Lender" has the meaning set forth in Section 2.05(b).
"Domestic Lending Office" means, with respect to any Lender, the office or
Affiliate of such Lender specified as its "Domestic Lending Office" below its
name on the signature pages hereto or in the Assignment pursuant to which it
became a Lender, or such other office or Affiliate of such Lender as such Lender
may from time to time specify to the Borrower and the Facility Administrative
Agent.
"Eurocurrency Liabilities" has the meaning assigned thereto in Regulation
D of the Board of Governors of the Federal Reserve System, as in effect from
time to time.
"Facility Administrative Agent" has the meaning assigned thereto in clause
(iii) of the introductory paragraph to this Agreement.
"Interest Period" means, for each LIBO Rate Loan (or portion thereof), the
period from the date on which such LIBO Rate Loan (or portion thereof) was most
recently Continued/Converted or, if not previously Continued/Converted, on which
such LIBO Rate Loan was made, to (and including) a date selected by the Borrower
in accordance with this definition and Article II hereof.
All Loans comprising part of the same Borrowing shall have the same
Interest Period. The duration of each Interest Period for any LIBO Rate Loan
shall be 1, 2 or 3 months (or such other period acceptable to the Borrower and
the Facility Administrative Agent), in each case as the Borrower may select in
the relevant Notice of Funding or Notice of Continuation/Conversion, in
accordance with the terms of Section 2.04 or Section 2.06, as applicable;
provided, however, that:
-3-
(a) for any Interest Period for any Loan that would otherwise occur
on a day other than a Business Day, the last day of such Interest Period shall
be extended to occur on the next succeeding Business Day, unless such extension
would cause the last day of such Interest Period to occur in the next following
calendar month, in which case the last day of such Interest Period shall occur
on the next preceding Business Day;
(b) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding day
at the end of such Interest Period) shall end on the last Business Day of a
calendar month; and
(c) any Interest Period that otherwise would extend beyond the Loan
Maturity Date, shall end on the Loan Maturity Date.
"Interest Rate Notice" has the meaning assigned thereto in Section
2.04(c).
"Lender Fee Letters" means, collectively, (i) the letter agreement, dated
February 26, 2004, among General Electric Capital Corporation, the Borrower and
the Facility Administrative Agent, (ii) the letter agreement, dated February 26,
2004, among HSBC Mexico S.A., Institucion de Banca Multiple, Grupo Financiero
HSBC, the Borrower and the Facility Administrative Agent, (iii) the letter
agreement, dated February 26, 2004, among Banco Santander Central Hispano, S.A.,
New York Branch, the Borrower and the Facility Administrative Agent, (iv) the
letter agreement, dated February 26, 2004, among the Borrower, the Facility
Administrative Agent and each of (x) DEPFA Investment Bank Limited, (y)
Norddeutsche Landesbank Girozentrale, New York Branch and (z) BBVA Bancomer,
S.A., Institucion de Banca Multiple, Grupo Financiero BBVA Bancomer, Sucursal
Gran Caiman and (v) the letter agreement, dated February 26, 2004, among Banco
Interacciones, S.A., Institucion de Banca Multiple, Grupo Financiero
Interacciones, the Borrower and the Facility Administrative Agent.
"Lender Fees" means, collectively, each of the fees set forth in Section
3.05 and in the Lender Fee Letters.
"Lenders" has the meaning assigned thereto in clause (ii) of the
introductory paragraph to this Agreement, and shall also be deemed to include
each permitted Assignee that becomes a Lender hereunder.
"LIBO Rate" means, for the Interest Period for each LIBO Rate Loan
comprising part of the same Borrowing, an interest rate per annum equal to the
rate that appears on Page 3750 of the Dow Jones Market Service (or on any
successor or substitute page of such service, or any successor to or substitute
for such service, providing rate quotations comparable to those currently
provided on such page of such service, as determined by the Facility
Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to U.S. Dollar deposits in the London interbank
market), as of 11:00 a.m. (London time) two (2) Business Days before the first
day of such Interest Period for an amount approximately equal to the LIBO Rate
Loan comprising part of such Borrowing and for a period equal to such Interest
Period. In the event that such rate is not available at such time for any
reason, then the "LIBO Rate" for the Interest Period for each LIBO Rate Loan
comprising part of the same Borrowing shall mean an interest rate per annum
equal to the average of the rates per annum offered to the
-4-
Facility Administrative Agent for deposits in U.S. Dollars in the London
interbank market at approximately 11:00 a.m. (London time) two (2) Business Days
before the first day of such Interest Period for an amount approximately equal
to the LIBO Rate Loan comprising part of such Borrowing and for a period equal
to such Interest Period.
"LIBO Rate Loan" means a Loan that earns interest at a rate per annum
determined by reference to the LIBO Rate.
"LIBOR Lending Office" means, with respect to any Lender, the office or
Affiliate of such Lender specified as its "LIBOR Lending Office" below its name
on the signature pages hereto or in the Assignment pursuant to which it became a
Lender (or, if no such office or Affiliate is specified, its Domestic Lending
Office), or such other office or Affiliate of such Lender as such Lender may
from time to time specify to the Borrower and the Facility Administrative Agent.
"LIBOR Reserve Percentage" of any Lender for the Interest Period for any
LIBO Rate Loan means the reserve percentage applicable to such Lender during
such Interest Period (or if more than one such percentage shall be so
applicable, the daily average of such percentages for those days in such
Interest Period during which any such percentage shall be so applicable) under
regulations issued from time to time by the Board of Governors of the Federal
Reserve System (or any successor) for determining the maximum reserve
requirement (including any emergency, supplemental or other marginal reserve
requirement) then applicable to such Lender with respect to liabilities or
assets consisting of or including Eurocurrency Liabilities having a term equal
to such Interest Period.
"Loans" means, collectively, the Construction Loans and the Contingency
Loans.
"Majority Lenders" means, at any time, Lenders having more than fifty
percent (50%) of (a) the aggregate unused portion of the Commitments, and (b)
the aggregate principal amount of all outstanding Loans.
"Monthly Payment Date" means the earlier of (i) the date of any Borrowing
in each calendar month and (ii), if no Borrowing has occurred in a calendar
month, the last Business Day of such calendar month.
"Notice of Continuation/Conversion" has the meaning assigned thereto in
Section 2.06.
"Recipient" has the meaning assigned thereto in Section 9.07.
"Replacement Lender" has the meaning assigned thereto in Section 3.06.
"Required Lenders" means, at any time, Lenders having more than
seventy-five percent (75%) of (a) the aggregate unused portion of the
Commitments, and (b) the aggregate principal amount of all outstanding Loans.
"Type" of any Loan means, as the context requires, a Base Rate Loan or a
LIBO Rate Loan.
-5-
SECTION 1.02. Accounting Terms and Principles; Rules of Construction. The
accounting terms and principles set forth in Sections 1.02 of the Common
Agreement are incorporated herein, mutatis mutandis, by reference as if fully
set forth herein.
SECTION 1.03. Scope of Agreement. This Agreement governs the Loans
described herein. However, certain terms and conditions set out in the Common
Agreement, the Depositary Agreement and the other Security Documents also apply
to these Loans, and, subject to Section 9.11, those agreements and documents
supplement, modify or otherwise affect certain provisions hereof.
SECTION 1.04. Rules of Construction. The rules of construction set forth
in Section 1.03 of the Common Agreement (other than subparagraph (b) thereto)
shall apply as if it were fully set out herein and the words "hereof," "herein,"
and "hereunder" and words of similar import when used in this Agreement shall
refer to this Agreement as a whole and not to any particular provision of this
Agreement, and section, subsection, schedule and exhibit references are to this
Agreement unless otherwise specified.
ARTICLE II
LOANS
SECTION 2.01. Construction Loans.
(a) Construction Loan Commitments. (i) Subject to the terms and
conditions of this Agreement and the Common Agreement, each Lender severally
agrees to make Loans ("Construction Loans") to the Borrower on any Business Day
during the Availability Period in an aggregate amount not to exceed the amount
set forth opposite such Lender's name as its "Construction Loan Commitment" on
Schedule I hereto as that amount may be reduced or cancelled as hereinafter
provided (the foregoing obligation to make Construction Loans being each
Lender's "Construction Loan Commitment"). Any Construction Loan or portion
thereof which is prepaid cannot be reborrowed.
(ii) Each request for a Construction Loan shall be in an
aggregate principal amount of not less than U.S.$1,000,000 (provided that
the last Construction Loan may be in an aggregate principal amount equal
to the aggregate unutilized Construction Loan Commitments available on the
date such Construction Loan is requested and provided further that any
Construction Loan requested solely for the purpose of paying interest
and/or Fees due and payable pursuant to Section 2.08(a) and/or Section
3.05(a) of this Agreement (and any Taxes payable with respect to such
interest and/or Fees) may be in the aggregate principal amount of such
interest, Taxes and/or Fees, as applicable, or any portion thereof) and
shall be made by the Lenders ratably in proportion to their respective
Construction Loan Commitments. Each Lender's Construction Loan Commitment
shall be reduced by the amount of, and on the date of, each Lender's
Construction Loan. The Construction Loan Commitments shall terminate in
their entirety upon the expiration of the Availability Period.
-6-
(iii) The failure of any Lender to make the Construction
Loan required to be made by it as part of any Construction Loan shall not
relieve any other Lender of its obligation hereunder to make its
respective Construction Loan on the date of such Construction Loan, but no
Lender shall be responsible for the failure of any other Lender to make
the Construction Loan to be made by such other Lender on any date.
(b) Use of Proceeds of Construction Loans. The proceeds of
Construction Loans made to the Borrower shall be applied by the Borrower
exclusively to the payment of Project Costs set forth in the Construction Budget
in effect on the Execution Date (other than amounts payable under or in respect
of any Investor Note or other Note Document and other than Project Costs
incurred pursuant to the First Modification Agreement, the Second Modification
Agreement and any other Additional Works).
(c) Repayment of Construction Loans. All Construction Loans then
outstanding and all accrued interest thereon shall be due and payable in full on
the Loan Maturity Date.
SECTION 2.02. Contingency Loans.
(a) Contingency Loan Commitments. (i) Subject to the terms and
conditions of this Agreement and the Common Agreement, each Lender severally
agrees to make Loans to the Borrower ("Contingency Loans") on any Business Day
during the Availability Period in an aggregate amount not to exceed the amount
set forth opposite such Lender's name as its "Contingency Loan Commitment" on
Schedule I hereto as that amount may be reduced or cancelled as hereinafter
provided (the foregoing obligation to make Contingency Loans being each Lender's
"Contingency Loan Commitment"). Any Contingency Loan or portion thereof which is
prepaid cannot be reborrowed.
(ii) Each request for a Contingency Loan shall be in an
aggregate principal amount of not less than U.S.$500,000 (provided that
the final Contingency Loan may be in an aggregate principal amount equal
to the aggregate unutilized Contingency Loan Commitments on the date such
Contingency Loan is requested and provided further that any Construction
Loan requested solely for the purpose of paying interest and/or Fees due
and payable pursuant to Section 2.08(a) and/or Section 3.05(a) of this
Agreement (and any Taxes payable with respect to such interest and/or
Fees) may be in the aggregate principal amount of such interest, Taxes
and/or Fees, as applicable, or any portion thereof)) and shall be made by
the Lenders ratably in proportion to their respective Contingency Loan
Commitments. Each Lender's Contingency Loan Commitment shall be reduced by
the amount of, and on the date of, such Lender's Contingency Loan. The
Contingency Loan Commitments shall terminate in their entirety upon the
expiration of the Availability Period.
(iii) The failure of any Lender to make the Contingency Loan
required to be made by it as part of any Contingency Loan shall not
relieve any other Lender of its obligation hereunder to make its
respective Contingency Loan on the date of such Contingency Loan, but no
Lender shall be responsible for the failure of any other Lender to make
the Contingency Loan to be made by such other Lender on any date.
-7-
(b) Use of Proceeds of Contingency Loans. The proceeds of
Contingency Loans made to the Borrower shall be applied by the Borrower
exclusively to the payment of Project Costs (other than amounts payable under or
in respect of any Investor Note or other Note Document) incurred in connection
with the First Modification Agreement, the Second Modification Agreement or any
other Additional Works to be executed pursuant to any CFE Change Request or PWC
Change Order permitted pursuant to Section 6.02(k) of the Common Agreement,
together with any interest, fees, Taxes, Other Taxes or other costs or expenses
payable in respect of any Contingency Loans.
(c) Repayment of Contingency Loans. All Contingency Loans then
outstanding and all accrued interest thereon shall be due and payable in full on
February 28, 2007, as such date may be extended for Permissible Provisional
Acceptance Delays. All Contingency Loans then outstanding and all accrued
interest thereon shall be due and payable in full on the Loan Maturity Date.
SECTION 2.03. Facility Notes. The Loans made or to be made by each Lender
shall be evidenced (i) in the case of Construction Loans, by a promissory note
duly executed and delivered by the Borrower substantially in the form of Exhibit
2.03-A hereto with blanks appropriately completed in conformity herewith (each,
a "Construction Note"), and (ii) in the case of Contingency Loans, by a
promissory note duly executed and delivered by the Borrower substantially in the
form of Exhibit 2.03-B hereto with blanks appropriately completed in conformity
herewith (each, a "Contingency Note"), in each case payable to such Lender for
the account of its Applicable Lending Office. The provisions set forth in each
Facility Note are not intended to and shall not be construed to impair, diminish
or otherwise adversely affect the rights of the Lender, the Administrative Agent
or any other Creditor Representative against the Borrower hereunder and under
the other Financing Documents. To the extent that any provision in any Facility
Note conflicts with this Agreement, this Agreement shall control with respect to
such provision.
SECTION 2.04. Making the Borrowings.
(a) All Loans to be made as part of each Borrowing shall consist of
Loans of the same Type and Interest Period. Except as otherwise specifically
provided herein, each Borrowing shall solely consist of LIBO Rate Loans.
(b) Not later than the tenth (10th) day prior to the date of any
proposed Borrowing (or such later date agreed to by the Facility Administrative
Agent in its sole discretion), the Borrower shall deliver a Notice of Funding to
the Facility Administrative Agent and the Independent Engineer accompanied by
the documents specified in the Notice of Funding and specifying therein (i) the
requested date of such Borrowing and (ii) the aggregate amount of such proposed
Borrowing, including the amount of any proposed Construction Loan and the amount
of any proposed Contingency Loan. The Borrower shall be entitled to request only
one Borrowing during any calendar month; provided, however, that in any calendar
month in which any interest or Fee is due and payable pursuant to Section
2.08(a) or Section 3.05, as applicable, the Borrower shall be entitled to
request additional Borrowings (with each such Borrowing limited to the amount
of, and for the purposes of paying, such interest and Fees due and payable
pursuant to Section 2.08(a) or Section 3.05, as applicable, and any Taxes
payable with respect to
-8-
such interest and Fees) or with the prior written consent of the Facility
Administrative Agent, which may be granted or withheld in its sole discretion.
Each Notice of Funding shall be irrevocable and binding on the Borrower.
(c) In connection with each proposed Borrowing (other than any
Borrowing limited to the amount of, and for the purposes of paying, interest and
Fees due and payable pursuant to Section 2.08(a) or Section 3.05(a), as
applicable, and any Taxes payable with respect to such interest and Fees), the
Borrower shall deliver a further notice (an "Interest Rate Notice") to the
Facility Administrative Agent in substantially the form of Exhibit 2.04(c)
hereto, specifying the requested Interest Period for each such Loan (and,
subject to Section 2.04(a), the type of such Loans). Each Interest Rate Notice
shall be given by the Borrower to the Facility Administrative Agent not later
than 11:00 a.m. (New York City time) on the third Business Day prior to the date
of the proposed Borrowing. The Facility Administrative Agent shall give each
Lender notice of each Interest Rate Notice within one (1) Business Day after the
receipt thereof by the Facility Administrative Agent. The Facility
Administrative Agent shall promptly notify each Lender of the applicable
interest rate under Section 2.08 promptly after determination thereof. Each
Interest Rate Notice shall be irrevocable and binding on the Borrower. If no
Interest Rate Notice is received by the Facility Administrative Agent as
provided in this Section 2.04(c), the interest rate applicable to such Borrowing
shall be the LIBO Rate with an Interest Period of one (1) month (or such other
Interest Period designated by the Facility Administrative Agent).
(d) Each Lender shall, before 11:00 a.m. (New York City time) on the
date of any Borrowing, make available to the Facility Administrative Agent such
Lender's ratable portion of the Construction Loan and/or the Contingency Loan,
as applicable, in accordance with Section 2.01(a) of the Common Agreement.
(e) Notwithstanding anything to the contrary herein, in the event
that on the date on which any interest or Fees in respect of the Loan Documents
are due and payable, the Borrower has not delivered a Notice of Funding in
accordance with this Agreement and the other Financing Documents requesting a
Borrowing in an amount and on the date necessary to pay such interest or Fees,
the Lenders shall have the right to, and the Borrower hereby irrevocably
authorizes the Lenders to, make Loans in the aggregate amount of such interest
or Fees in respect of the Loan Documents. In the event that the Borrower so
fails to deliver such Notice of Funding, the Facility Administrative Agent may
notify each Lender of the failure of the Borrower to so deliver such Notice of
Funding and request that each Lender make available to the Facility
Administrative Agent the ratable share of such aggregate amount of interest or
Fees due and payable by the Borrower in respect of the Loan Documents. Each
Lender agrees to make available to the Facility Administrative Agent no later
than 11:00 a.m. (New York City time on the date so requested by the Facility
Administrative Agent) its ratable share of the aggregate amount requested by the
Facility Administrative Agent to be disbursed by the Lenders. Notwithstanding
the foregoing, the Borrower and each other party hereto hereby agrees that any
delay in giving or any failure to give the request referenced in this Section
2.04(e) or to make any such disbursement referenced in this Section 2.04(e)
shall not affect the rights of any Lender or of the Facility Administrative
Agent under this Credit Agreement or any other Transaction Document and the
Borrower expressly acknowledges and agrees that neither the Facility
-9-
Administrative nor any of the Lender shall have any liability to the Borrower
arising therefrom or in connection therewith.
(f) Notwithstanding the foregoing, if the date for any proposed
Borrowing is a date on which the Borrower is obligated to pay (i) interest on
any Construction Loan pursuant to Section 2.08 hereof, any Fees in respect of
any Construction Loan Commitment pursuant to Section 3.05(a)(i) hereof or any
Fees pursuant to any Fee Letters, then the Facility Administrative Agent may
instruct, and in that event each Lender shall, set off against its ratable
portion of the Construction Loan to be made on such day the entire amount of
interest and Fees due and owing on such date in respect of such Lender's
Construction Loans and (ii) interest on any Contingency Loan pursuant to Section
2.08 hereof or any Fees in respect of any Contingency Loan Commitment pursuant
to Section 3.05(a)(ii) hereof, then the Facility Administrative Agent may
instruct, and in that event each Lender shall, set off against its ratable
portion of the Contingency Loan to be made on such day the entire amount of
interest and Fees due and owing on such date in respect of such Lender's
Contingency Loans.
SECTION 2.05. Non-Receipt of Funds by the Facility Administrative Agent.
(a) Notice to Borrower. In the event at any time following the
Borrower's delivery of a Notice of Funding and prior to any Lender's making of
its ratable portion of the Construction Loan and/or the Contingency Loan, as
applicable, in accordance with Section 2.04(d) hereof, such Lender determines
that it will not make available to the Facility Administrative Agent such
Lender's ratable portion of such Construction Loan and/or the Contingency Loan,
as applicable, requested in such Notice of Funding on the date requested in such
Notice of Funding, such Lender shall so notify the Facility Administrative Agent
(indicating in reasonable detail the justification pursuant to the Financing
Documents for such determination) in writing no later than 10:00 a.m. New York
time on the third Business Day immediately prior to the date of the requested
Funding if such determination has been made before such time (and otherwise as
promptly as practicable). Upon receipt of notice from a Lender that it will not
make available to the Facility Administrative Agent its Percentage of any Loan,
the Facility Administrative Agent shall promptly provide the Borrower with
notice thereof. Without limiting any rights the Borrower may have in that event,
the Borrower may require that any Lender that fails to make available its
Percentage of any Loans in breach of its obligations hereunder, transfer, assign
and delegate all of its rights and obligations hereunder to a Replacement Lender
subject to the last sentence of Section 3.06.
(b) Defaulting Lenders. If for any reason any Lender (a "Defaulting
Lender") shall fail or refuse to perform its obligations under this Agreement or
any other Financing Document to which it is a party within the time period
specified for performance of such obligation or, if no time period is specified,
if such failure or refusal continues for a period of ten (10) Business Days
after notice from the Facility Administrative Agent (upon its own initiative or
at the request of the Borrower), with a copy to the other parties to this
Agreement then, in addition to the rights and remedies that may be available to
the Facility Administrative Agent or the Borrower under this Agreement or
applicable Requirements of Law, such Defaulting Lender's right to participate in
the administration of the Loans, this Agreement and the other Financing
Documents, including, without limitation, any right to vote in respect of, to
consent to or to direct any action or inaction of the Facility Administrative
Agent or Intercreditor Agent or
-10-
to be taken into account in the calculation of Majority Lenders, Required
Lenders, Majority Creditors, Enforcing Required Creditors or Required Creditors,
shall be suspended during the pendency of such failure or refusal. If for any
reason a Lender fails to make timely payment to the Facility Administrative
Agent of any amount required to be paid to the Facility Administrative Agent
hereunder (without giving effect to any notice or cure periods), in addition to
other rights and remedies which the Facility Administrative Agent or the
Borrower may have under the immediately preceding provisions or otherwise and
subject to the provisions of Section 2.04(c), the Facility Administrative Agent
shall be entitled to (i) collect interest from such Defaulting Lender on such
delinquent payment for the period from the date on which the payment was due
until the date on which the payment is made at the Base Rate, (ii) withhold or
setoff and to apply in satisfaction of the defaulted payment and any related
interest, any amounts otherwise payable to such Lender under this Agreement or
any other Financing Document and (iii) bring an action or suit against such
Lender in a court of competent jurisdiction to recover the defaulted amount and
any related interest. Any amounts received by the Facility Administrative Agent
in respect of a Defaulting Lender's Percentage of the Loans shall not be paid to
such Defaulting Lender and shall be held by the Facility Administrative Agent
and either applied against the purchase price of such Percentage of the Loans
under Section 2.05(c) or paid to such Defaulting Lender upon the Defaulting
Lender's cure of its default.
(c) Purchase of Defaulting Lender's Percentage.
(i) Any Lender who is not a Defaulting Lender shall have the
right, but not the obligation, in its sole discretion, to acquire and
assume all of a Defaulting Lender's Percentage of the Loans and the
unutilized Commitments in respect thereof and all that Defaulting Lender's
other rights and obligations under this Agreement. If more than one Lender
exercises such right, each such Lender shall have the right to acquire
such proportion of such Defaulting Lender's Percentage of the Loans and
Commitments and other rights and obligations of such Defaulting Lender as
they may mutually agree. On the date of any such acquisition and
assumption of the Percentage of the Loans and Commitments and other rights
and obligations under this Agreement of a Defaulting Lender, the
Defaulting Lender's interest in the Loans and Commitments and its rights
and obligations hereunder (but not its liability in respect thereof or
under the Financing Documents or this Agreement to the extent the same
relate to the period prior to the effective date of the acquisition and
assumption) shall automatically be assigned and assumed, respectively,
without any other action or formality, and the Defaulting Lender shall
promptly execute all documents reasonably requested to evidence the
acquisition and assumption of such interest by the purchaser thereof
(including an appropriate Assignment, pursuant to which such purchaser
shall assume all obligations of such Defaulting Lender in respect of such
interest) and shall pay to the Facility Administrative Agent an assignment
fee in the amount of U.S.$3,500 for processing such assignment.
(ii) The purchase price for the acquisition of the Percentage
of the Loans of a Defaulting Lender shall be equal to the amount of the
principal balance of the Loans outstanding and owed by the Borrower to the
Defaulting Lender. That purchase price paid by the Lender or the Lenders
acquiring such Percentage of the Loans shall be paid to the Facility
Administrative Agent for the account of the Defaulting Lender. Prior to
payment of such purchase price to the Defaulting Lender, the Facility
Administrative
-11-
Agent shall apply against such purchase price any amounts payable in
respect of such Percentage of the Loans as contemplated by the last
sentence of Section 2.05(b). The Defaulting Facility Lender shall be
entitled to receive amounts owed to it by Borrower under the Financing
Documents which accrued prior to the date of the default by the Defaulting
Lender, to the extent the same are received by Facility Administrative
Agent from or on behalf of Borrower. There shall be no recourse against
any other Lender or Facility Administrative Agent for the payment of such
sums.
No such acquisition and assumption shall constitute a repayment by the
Borrower of the Defaulting Lender's Percentage or a new Loan to the Borrower by
such purchaser or purchasers and the parties hereto acknowledge that the
Borrower's obligations hereunder with respect to the purchased Percentage will
continue and will not constitute new obligations.
SECTION 2.06. Continuation/Conversion. Any Continuation/Conversion of
Loans (or any ratable portion thereof) hereunder shall be made on the following
terms and subject to the following conditions:
(a) Each such Continuation/Conversion shall be made as to all Loans
comprising a single Borrowing (or any ratable portion thereof) on notice given
not later than 11:00 a.m. (New York City time) on the third Business Day prior
to the date of the proposed Continuation/Conversion (which
Continuation/Conversion shall be effective with respect to any LIBO Rate Loans
upon the expiration of the then-current Interest Period), by the Borrower to the
Facility Administrative Agent, who shall give each Lender prompt notice thereof.
Each such notice of Continuation/Conversion (a "Notice of
Continuation/Conversion") shall be in substantially the form of Exhibit 2.06(a)
hereto, specifying therein the requested (i) date of such
Continuation/Conversion, (ii) Type of, and, with respect to LIBO Rate Loans,
Interest Period applicable to, the Loans (or ratable portions thereof) proposed
to be Continued/Converted, (iii) Type of Loans (or ratable portions thereof)
resulting from such Continuation/Conversion, (iv) in the case of a
Continuation/Conversion to LIBO Rate Loans, initial Interest Period to be
applicable to the Loans resulting from such Continuation/Conversion and (v)
aggregate amount of Loans (or ratable portions thereof) proposed to be
Continued/Converted. In the case of a proposed Continuation/Conversion into LIBO
Rate Loans, upon its receipt of a Notice of Continuation/Conversion, the
Facility Administrative Agent shall notify each Lender of the interest rate to
be applicable to the Loans resulting from such Continuation/Conversion pursuant
to Section 2.06(a)(ii) promptly after determination thereof. Each Notice of
Continuation/Conversion shall be irrevocable and binding on the Borrower.
(b) LIBO Rate Loans shall not be Converted into Base Rate Loans
unless the provisions of Section 2.06(f), Section 2.07(b) or Section 2.07(c)
shall apply.
(c) In the event that LIBO Rate Loans are required to be Converted
into Base Rate Loans pursuant to the terms of this Agreement on a date other
than the last day of the Interest Period then applicable thereto, the
corresponding amounts, if any, payable to the Lenders pursuant to Section
2.07(d) shall be paid contemporaneously with such Conversion.
(d) All Continuations/Conversions of Loans shall be made in
compliance with this Section 2.06 and Section 2.07.
-12-
(e) Any selection by the Borrower of a longer or shorter Interest
Period to be applicable to any LIBO Rate Loan shall be deemed a
Continuation/Conversion pursuant to this Section 2.06, shall be governed by the
terms and conditions hereof and shall be notified to the Facility Administrative
Agent as herein provided.
(f) So long as any payment Event of Default shall have occurred and
be continuing, no existing Loans (or any ratable portion thereof) shall be
Continued/Converted as or to LIBO Rate Loans but rather shall be
Continued/Converted (if at all) as or to Base Rate Loans.
(g) Subject to the other provisions of this Section 2.06 and Section
2.07, if no Notice of Continuation/Conversion in respect of a Loan (or any
ratable portion thereof) is received by the Facility Administrative Agent on or
before the third Business Day prior to the last day of any Interest Period as
provided in subsection (a), above, such Loan (or any ratable portion thereof)
shall be Continued/Converted as or to a LIBO Rate Loan with an Interest Period
of one (1) month (or such other Interest Period designated by the Facility
Administrative Agent).
SECTION 2.07. Other Terms Relating to the Making and
Continuation/Conversion of Loans.
(a) Anything in Section 2.04 or 2.06 to the contrary
notwithstanding, at no time shall more than three (3) different Interest Periods
be in effect as to outstanding Borrowings hereunder.
(b) If, on or after the date hereof, the adoption of any applicable
Requirement of Law, or any change therein, or any change in the interpretation
or administration thereof by any Governmental Authority, central bank or
comparable agency charged with the interpretation or administration thereof, or
compliance by any Lender (or its Applicable Lending Office) with any request or
directive applicable to such Lender (whether or not having the force of law) of
any such Governmental Authority, central bank or comparable agency shall make it
unlawful or impossible for any Lender (or its Applicable Lending Office) to
make, maintain or fund LIBO Rate Loans hereunder and such Lender shall so notify
the Facility Administrative Agent, the Facility Administrative Agent shall
forthwith give notice thereof to the other Lenders and the Borrower whereupon
until such Lender notifies the Borrower and the Facility Administrative Agent
that the circumstances giving rise to such suspension no longer exist, the
obligation of such Lender to make LIBO Rate Loans or to Continue/Convert
outstanding Loans (or any ratable portion thereof) into LIBO Rate Loans shall be
suspended and each Loan (or any ratable portion thereof) to be made or
Continued/Converted by such Lender shall be made or Continued/Converted, as
applicable, as or to a Base Rate Loan; provided, that such Lender shall
designate a different Applicable Lending Office if such designation will avoid
the need for giving such notice and will not, in the sole judgment of such
Lender, acting reasonably, result in any material additional costs.
(c) If, on or prior to the first day of the Interest Period for any
LIBO Rate Loan:
-13-
(i) the Facility Administrative Agent determines that deposits
in U.S. Dollars (in the applicable amounts) are not being offered
generally in the London Interbank market for such Interest Period, or
(ii) the Majority Lenders shall advise the Facility
Administrative Agent that the LIBO Rate as determined by the Facility
Administrative Agent will not adequately and fairly reflect the cost to
such Lenders of funding or maintaining their respective LIBO Rate Loans
for such Interest Period,
the Facility Administrative Agent shall forthwith give notice thereof to the
Borrower and each Lender, whereupon, until the Facility Administrative Agent
notifies the Borrower and the Lenders that the circumstances giving rise to such
suspension no longer exist, (i) the obligations of the Lenders to make LIBO Rate
Loans, or to Continue/Convert outstanding Loans (or any ratable portion thereof)
as or to LIBO Rate Loans, shall be suspended and (ii) all outstanding LIBO Rate
Loans shall be Continued/Converted into Base Rate Loans on the last day of the
Interest Period applicable thereto.
(d) If the Borrower for any reason (i) fails to borrow LIBO Rate
Loans on the proposed Borrowing date specified in any Interest Rate Notice
delivered pursuant to Section 2.04(c) (including as a result of the Borrower's
failure to satisfy any of the applicable conditions precedent specified or
incorporated by reference in Article IV), (ii) makes any payment of principal
with respect to any LIBO Rate Loan on any day other than the last day of an
Interest Period applicable thereto (whether voluntary, mandatory, automatic, by
reason of acceleration or otherwise) or (iii) fails to Continue/Convert as or to
a LIBO Rate Loan or to prepay a LIBO Rate Loan after having given notice of such
Continuation/Conversion pursuant to Section 2.06(a), or notice of such
prepayment pursuant to Section 3.02(a), as applicable, the Borrower shall
promptly reimburse any Lender upon demand for any resulting loss, cost or
expense incurred by it, including any loss, cost or expense actually incurred in
obtaining, liquidating or employing deposits from third parties. Without
limiting the foregoing, the Borrower shall indemnify each Lender upon demand
against any direct loss, cost or expense that any Lender may sustain or incur as
a consequence of the default by the Borrower in payment of principal of, or
interest on, any LIBO Rate Loan, or any part thereof, including, but not limited
to, any interest, premium or penalty paid by any Lender to lenders of funds
borrowed by it or deposited with it for the purpose of making or maintaining
such LIBO Rate Loan. A certificate setting forth in reasonable detail the amount
of any such loss, cost or expense, and giving a reasonable explanation thereof,
submitted by such Lender to the Borrower (with a copy to the Facility
Administrative Agent), shall constitute such demand and shall be conclusive and
binding for all purposes, absent manifest error.
SECTION 2.08. Interest.
(a) Amount. The Borrower shall pay interest on the unpaid principal
amount of each Loan owing to each Lender from the date of the making of such
Loan until such principal amount shall be paid in full, at the following rates
per annum:
(i) Base Rate Loans. If such Loan is a Base Rate Loan, a rate
per annum equal at all times to the sum of the Base Rate in effect from
time to time plus the
-14-
Applicable Margin for such Base Rate Loan in effect from time to time,
payable monthly in arrears on each Monthly Payment Date and on the date
such Base Rate Loan shall be paid in full.
(ii) LIBO Rate Loans. If such Loan is a LIBO Rate Loan, a rate
per annum equal at all times during the Interest Period then applicable to
such Loan to the sum of the LIBO Rate for such Interest Period plus the
Applicable Margin for such LIBO Rate Loan in effect from time to time,
payable on the last day of such Interest Period.
(iii) Default Interest. Following the occurrence and during
the continuance of an Event of Default, a rate per annum equal to 2.00%
above the rate per annum required to be paid on a LIBO Rate Loan or Base
Rate Loan, as the case may be.
(b) Other Amounts. Any other amounts payable hereunder and under the
other Loan Documents that are not paid when due shall (to the fullest extent
permitted by law) bear interest, from the date when due until paid in full, at a
rate per annum equal at all times to the Lender Default Rate.
ARTICLE III
PAYMENTS
SECTION 3.01. Payments and Computations.
(a) The Borrower shall make, or shall direct the Offshore Depositary
Bank to make, each payment hereunder and under the other Loan Documents without
setoff, deduction or counterclaim not later than 11:00 a.m. (New York City time)
on the day when due in U.S. Dollars by wire transfer in immediately available
funds to an account in New York, New York. Funds received by the Facility
Administrative Agent after such time shall be deemed to have been received on
the next Business Day.
(b) All computations of interest based on the Base Rate and of Fees
payable pursuant to Section 3.05(a) shall be made by the Facility Administrative
Agent on the basis of a year of 365 or 366 days, as the case may be. All other
computations of interest, premium and Fees hereunder (including computations of
interest based on the LIBO Rate) shall be made by the Facility Administrative
Agent on the basis of a year of 360 days. In each such case, such computation
shall be made for the actual number of days (including the first day but
excluding the last day) occurring in the period for which such interest, premium
or Fees are payable. Each such determination by the Facility Administrative
Agent shall be conclusive and binding for all purposes, absent manifest error.
(c) Whenever any payment hereunder or under any other Loan Document
shall be stated to be due on a day other than a Business Day, such payment shall
be made on the next succeeding Business Day, and, such extension of time shall
in such case be included in the computation of such payment; provided, however,
that if such extension would cause payment of interest on or principal of LIBO
Rate Loans to be made in the next following calendar month, such payment shall
be made on the next preceding Business Day and such reduction of time shall in
such case be included in the computation of payment of interest hereunder.
-15-
SECTION 3.02. Prepayments.
(a) Optional Prepayments. The Borrower may voluntarily prepay all or
a portion of the Loans in accordance with the provisions of Sections 3.01(a) and
3.01(c) of the Common Agreement and Section 3.02(c) below.
(b) Mandatory Prepayments.
(i) Upon the occurrence of any event specified in Section
3.02(b)(i), (ii) or (iii) of the Common Agreement, the Borrower shall
prepay the Loans in whole or in part in accordance with the provisions
thereof, Section 3.01(b)(v) of the Common Agreement and Section 3.02(c)
below.
(c) Application. All prepayments of Loans shall be subject to the
terms and conditions of Article III of the Common Agreement. The Facility
Administrative Agent shall give prompt notice to each Lender of the amount of
each prepayment made by the Borrower under this Section 3.02.
SECTION 3.03. Increased Cost and Reduced Return; Additional Interest;
Capital Adequacy.
(a) Increased Cost and Reduced Return. If, on or after the date
hereof, the adoption of any applicable Requirement of Law or any change therein,
or any change in the interpretation or administration thereof by any
Governmental Authority charged with the interpretation or administration
thereof, or compliance by any Lender (or its Applicable Lending Office) with any
request or directive applicable to such Lender (whether or not having the force
of law) of any such Governmental Authority:
(i) shall subject such Lender (or its Applicable Lending
Office) to any tax, duty or other charge with respect to any LIBO Rate
Loans or its Commitment or with respect to its obligation to make LIBO
Rate Loans, or shall cause the withdrawal or termination of any previously
granted exemption with respect to any taxes or shall change the basis of
taxation of, or increase the taxes on, payments to such Lender (or its
Applicable Lending Office) of the principal of or interest on any LIBO
Rate Loans or any other amounts due under this Agreement in respect of any
LIBO Rate Loans or any obligation to make LIBO Rate Loans (except for any
net income taxes imposed on the overall net income of such Lender (or its
Applicable Lending Office) by a Governmental Authority in a jurisdiction
with which such Lender has a present or former connection unrelated to the
transactions contemplated by the Transaction Documents), or imposes taxes
or reserves in respect of the unutilized portion of such Lender's
Commitment, which in each case occurred as a result of the execution and
delivery of this Agreement by such Lender; or
(ii) shall impose, modify or deem applicable any reserve,
liquidity, cash margin, special deposit, deposit insurance or assessment
or other regulatory or similar requirement (including any such requirement
imposed by the Board of Governors of the Federal Reserve System, but
excluding, with respect to any LIBO Rate Loan, any such requirement
included in an applicable LIBOR Reserve Percentage) against assets of,
-16-
deposits with or for the account of, or credit extended by, such Lender
(or its Applicable Lending Office) or shall impose on such Lender (or its
Applicable Lending Office) or on the London interbank market any other
condition affecting such Lender's LIBO Rate Loans, its Commitments or its
obligation to make LIBO Rate Loans, which in each case would not have
occurred but for execution and delivery of this Agreement by such Lender;
and the result of any of the foregoing is to increase the cost to such Lender
(or its Applicable Lending Office) of making or maintaining any LIBO Rate Loan
or to reduce the amount of any sum received or receivable by such Lender (or its
Applicable Lending Office) under this Agreement or any other Loan Document, or
to cause such Lender to make any payment or forego any interest, fees or other
return on, or calculated by reference to any sum received or receivable by such
Lender under this Agreement or any other Loan Document, such Lender shall
promptly notify the Borrower and the Facility Administrative Agent of such event
and promptly deliver to the Borrower and the Facility Administrative Agent a
certificate setting forth in reasonable detail the amount of such increased cost
imposed or assessed or such reduction, payment or foregone interest, Fees or
other return and the basis for the determination of such amount. The
determinations of such Lender in such certificate shall be conclusive and
binding for all purposes, absent manifest error. Promptly upon demand by such
Lender, the Borrower shall pay to such Lender the amount shown as due on any
such certificate.
(b) Additional Interest. The Borrower shall pay to the Facility
Administrative Agent for the account of each Lender, so long as such Lender
shall be required under regulations of the Board of Governors of the Federal
Reserve System to maintain reserves with respect to liabilities or assets
consisting of or including Eurocurrency Liabilities, additional interest
actually incurred by such Lender on the unpaid principal amount of each LIBO
Rate Loan of such Lender, from the date of such LIBO Rate Loan until such
principal amount is paid in full, at an interest rate per annum equal at all
times to the remainder obtained by subtracting (i) the LIBO Rate for the
Interest Period for such LIBO Rate Loan from (ii) the rate obtained by dividing
such LIBO Rate by a percentage equal to 100% minus the LIBOR Reserve Percentage
of such Lender for such Interest Period, payable on each date on which interest
is payable on such LIBO Rate Loan. Such additional interest shall be determined
by such Lender and notified to the Borrower and the Facility Administrative
Agent within a reasonable period of time after such additional interest is
accrued by such Lender. A certificate as to the amount of such additional
interest, submitted to the Borrower and the Facility Administrative Agent by
such Lender, shall be conclusive and binding for all purposes, absent manifest
error.
(c) Capital Adequacy. If, on or after the date hereof, the adoption
of any generally applicable Requirement of Law regarding capital adequacy
(including a requirement that affects a Lender's allocation of capital resources
in respect of such Lender's obligations hereunder, or any change in any such
existing law or in the interpretation or administration thereof by any
applicable Governmental Authority charged with the interpretation or
administration thereof, or compliance by any Lender with any generally
applicable request or directive regarding capital adequacy (whether or not
having the force of law) of any such Government Authority, has or would have the
effect of increasing the amount of capital required to be maintained by such
Lender or reducing the rate of return on the capital of such Lender (or of any
corporation controlling such Lender) as a consequence of such Lender's
obligations
-17-
hereunder to a level below that which such Lender (or such controlling
corporation) could have achieved but for such adoption, change or compliance
(taking into consideration its policies with respect to capital adequacy), then
promptly upon delivery by such Lender to the Borrower and the Facility
Administrative Agent of a certificate setting forth in reasonable detail the
amount sufficient to compensate such Lender in light of such circumstances and
the basis for the determination of such amount (which certificate shall be
conclusive and binding for all purposes, absent manifest error), the Borrower
shall pay to such Lender such additional amount or amounts.
(d) Claims. Each Lender shall promptly notify the Borrower and the
Facility Administrative Agent of any event of which it has knowledge, occurring
after the date hereof, that entitles such Lender to compensation pursuant to
this Section 3.03 and agrees to designate a different Applicable Lending Office
if such designation will avoid the need for, or reduce the amount of, such
compensation and will not, in the sole reasonable judgment of such Lender, be
otherwise disadvantageous to it. Failure or delay on the part of any Lender to
demand compensation pursuant to this Section 3.03 shall not constitute a waiver
of such Lender's right to demand such compensation; provided, that the Borrower
shall not be required to compensate a Lender pursuant to this Section 3.03 for
any increased costs or reductions incurred more than 120 days prior to the date
that such Lender notifies the Borrower of the event giving rise to such
increased costs or reductions and of such Lender's intention to claim
compensation therefor; provided, further, that if the event giving rise to such
increase costs or reductions is retroactive and such Lender notifies the
Borrower within 120 days of the occurrence of such event, then the 120-day
period referred to above shall be extended to include the period of retroactive
effect thereof. In the event that any Lender shall change its Applicable Lending
Office (other than pursuant to Section 2.07(b)) and such change results (at the
time of such change) in increased costs to such Lender, the Borrower shall not
be liable to such Lender for such increased costs incurred by such Lender to the
extent, but only to the extent, that such increased costs shall exceed the
increased costs which such Lender would have incurred if the Applicable Lending
Office of such Lender had not been so changed.
SECTION 3.04. Sharing of Payments, Etc. If any Lender shall obtain any
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) on account of the Loans owing to it (other than, to the
extent that non-ratable payments as between the Lenders are expressly provided
for therein, payments received pursuant to Section 3.03, 3.05 or 3.06) in excess
of its ratable share of payments on account of the Loans obtained by all the
Lenders, such Lender shall purchase from the other Lenders such participation in
Loans made by them as shall be necessary to cause such purchasing Lender to
share the excess payment or other recovery ratably with each of them; provided,
however, that if all or any portion of the excess payment or other recovery is
thereafter recovered from such purchasing Lender, the purchase shall be
rescinded and each Lender that has sold a participation to the purchasing Lender
shall repay to the purchasing Lender the purchase price to the ratable extent of
such recovery together with an amount equal to such selling Lender's ratable
share (according to the proportion of (a) the amount of such selling Lender's
required repayment to the purchasing Lender to (b) the total amount so recovered
from the purchasing Lender) of any interest or other amount paid or payable by
the purchasing Lender in respect of the total amount so recovered. The Borrower
agrees that any Lender so purchasing a participation from another Lender
pursuant to this Section 3.04 may, to the extent permitted by law, exercise all
of its rights of payment with
-18-
respect to such participation as fully as if such Lender were the direct
creditor of the Borrower in the amount of such participation. If under any
applicable bankruptcy, insolvency or other similar law, any Lender receives a
secured claim in lieu of a setoff to which this Section 3.04 applies, such
Lender shall, to the extent practicable, exercise its rights in respect of such
secured claim in a manner consistent with the rights of the Lenders entitled
under this Section 3.04 to share in the benefits of any recovery on such secured
claim. As used in this Section 3.04, the terms ratable and non-ratable shall be
determined by reference to the respective Percentages of the Lenders.
SECTION 3.05. Fees.
(a) The Borrower agrees to pay to the Facility Administrative Agent
for the account of each Lender a commitment fee on the average daily unused
amount of such Lender's Commitment from the Execution Date, in the case of each
Lender initially a party hereto, and from the effective date specified in the
Assignment pursuant to which an Assignee becomes a Lender, until the Loan
Maturity Date, at the rate of (i) with respect to such Lender's Construction
Loan Commitment, 0.75% per annum and (ii) with respect to such Lender's
Contingency Loan Commitment, 0.75% per annum, in each case payable monthly in
arrears on each Monthly Payment Date, commencing on the first such date to occur
following the Closing Date.
(b) The Borrower further agrees to pay the fees set forth in the
Lender Fee Letters and the Facilities Fee Letter in accordance with the terms
thereof.
SECTION 3.06. Replacement of Lenders. If (i) the Borrower is required to
make a payment to any Lender or any Affiliate thereof pursuant to Section 3.03
hereof or Section 3.02 of the Common Agreement or (ii) notice or demand is given
by any Lender or any Affiliate thereof pursuant to Sections 2.07(b), 2.07(c) or
3.03, then, subject to the next sentence, the Borrower may require such Lender
to assign, transfer and delegate all of its rights and obligations hereunder,
under its Facility Notes and with respect to its Loans to a replacement Lender
(a "Replacement Lender"), unless after giving effect to such assignment,
transfer and delegation, the future obligations of the Borrower to such Lender
(or such Affiliate thereof) under Section 2.07(b), 2.07(c) or 3.03 hereof or
Section 3.02 of the Common Agreement, as applicable, would not be reduced. On
the effective date of any substitution of any Lender pursuant to Section 2.05(a)
or this Section 3.06, such Lender shall have received payment in full of its
Loans outstanding on such date and the Borrower shall reimburse such Lender for
all reasonable out-of-pocket costs incurred by it in connection with such
substitution and pay to it all amounts, if any, then payable from the Borrower
to such Lender pursuant to Sections 2.07(d), 3.03 or 3.05 hereof or Section 3.02
of the Common Agreement, as the case may be. No such substitution shall affect
any obligation of the Borrower to the transferring Lender that has accrued on or
prior to the date of such substitution.
ARTICLE IV
CONDITIONS PRECEDENT
SECTION 4.01. Conditions Precedent to the Closing Date and the Initial
Borrowing. The Closing Date and the initial Borrowing are subject to
satisfaction, in a manner satisfactory to the Facility Administrative Agent and
each Lender, (i) of each of the conditions
-19-
set forth in Section 4.01 of the Common Agreement, which conditions shall apply,
mutatis mutandis, to this Agreement as if they had been fully set out herein
(provided that a waiver of any condition under Section 4.01 of the Common
Agreement shall be deemed a waiver of such condition hereunder) and (ii) of the
condition that the Facility Administrative Agent shall have received evidence
satisfactory to it that no Initial Purchaser (as defined in the Note Purchase
Agreement) shall be in default of its obligations under the Note Purchase
Agreement and that the initial Note Proceeds Withdrawal will occur (in the
amount set forth in the initial Notice of Funding) on the date of the initial
Borrowing.
SECTION 4.02. Conditions Precedent to Each Borrowing. In addition to the
conditions precedent set forth in Section 4.01, the obligation of each Lender to
make any Construction Loan and/or any Contingency Loan shall be subject to
satisfaction, in a manner satisfactory to (x) in the case of the initial
Funding, each Creditor and (y) in the case of any subsequent Funding, the
Intercreditor Agent, of each of the conditions set forth in Section 4.02 of the
Common Agreement, which conditions shall apply, mutatis mutandis, to this
Agreement as if they had been fully set out herein (provided that a waiver of
any condition under Section 4.02 of the Common Agreement shall be deemed a
waiver of such condition hereunder) and of the following conditions, provided
that any Loans that are collectively limited to the amount of, and for purposes
of paying, interest and/or Fees due and payable pursuant to Section 2.08(a)
and/or Section 3.05(a) of this Agreement (and any Taxes payable with respect to
such interest and Fees) shall solely be subject to the condition set forth in
subsection (b) below:
(a) The Facility Administrative Agent shall have received an
Interest Rate Notice, duly executed by the Borrower.
(b) The Facility Administrative Agent shall be satisfied that no
proceeds of such Construction Loan and/or Contingency Loan will be, and no
proceeds of any Construction Loan and/or Contingency Loan has previously been,
applied to pay any amount payable under any Investor Note or in respect of any
Note Document.
(c) With respect to any Contingency Loan only, the Facility
Administrative Agent shall have received a report of the Independent Engineer
stating that the aggregate amount of the Contingency Loans to be made to the
Borrower pursuant to such Funding does not exceed, when added to the amount of
Contingency Loans previously made, the aggregate amount of Project Costs (other
than amounts payable under or in respect of any Investor Note or other Note
Document) set forth in the relevant Notice of Borrowing incurred in connection
with the First Modification Agreement, the Second Modification Agreement and any
other Additional Works to be executed pursuant to any CFE Change Request or PWC
Change Order permitted pursuant to Section 6.02(k) of the Common Agreement.
Each document, report and notice delivered pursuant to Section 4.02(a)
and/or (c) above shall be in form and substance satisfactory to the Facility
Administrative Agent and shall be delivered in sufficient copies for the
Facility Administrative Agent and each of the Lenders.
-20-
ARTICLE V
REPRESENTATIONS AND WARRANTIES
SECTION 5.01. Representations and Warranties of the Borrower. To induce
each of the Lenders to enter into this Agreement and the Lenders to make the
Loans, the Borrower hereby confirms each of the representations and warranties
set forth in Section 5.01 of the Common Agreement, which representations and
warranties shall apply, mutatis mutandis, to this Agreement as if they had been
fully set out in this Agreement and made as of the dates specified in the Common
Agreement (unless and to the extent waived or amended from time to time in
accordance with the terms of the Common Agreement). All of these representations
and warranties shall survive the execution and delivery of this Agreement, the
Closing Date and all Borrowings and Commitments made hereunder.
ARTICLE VI
COVENANTS OF THE BORROWER
SECTION 6.01. Affirmative Covenants. The Borrower hereby agrees to comply
with each of the covenants set forth in Section 6.01 of the Common Agreement and
to otherwise perform and observe all of the obligations undertaken by it in the
Common Agreement, the terms of which shall apply, mutatis mutandis, to this
Agreement as if fully set forth herein (unless and to the extent waived or
amended from time to time in accordance with the terms of the Common Agreement).
SECTION 6.02. Negative Covenants. The Borrower hereby agrees to comply
with each of the covenants set forth in Section 6.02 of the Common Agreement and
to otherwise perform and observe all of the obligations undertaken by it in the
Common Agreement, the terms of which shall apply, mutatis mutandis, to this
Agreement as if fully set forth herein (unless and to the extent waived or
amended from time to time in accordance with the terms of the Common Agreement).
SECTION 6.03. Reporting Obligations. The Borrower hereby agrees to comply
with each of the obligations set forth in Section 6.03 of the Common Agreement
and to otherwise perform and observe all of the obligations undertaken by it in
the Common Agreement, the terms of which shall apply, mutatis mutandis, to this
Agreement as if fully set forth herein (unless and to the extent waived or
amended from time to time in accordance with the terms of the Common Agreement).
ARTICLE VII
EVENTS OF DEFAULT
SECTION 7.01. Events of Default; Remedies.
(a) An Event of Default shall occur hereunder upon the occurrence of
any Event of Default set forth in Section 7.01 of the Common Agreement, the
terms of which shall apply, mutatis mutandis, to this Agreement as if fully set
forth herein.
-21-
(b) If any Event of Default shall have occurred and be continuing
beyond the applicable cure periods set forth in Section 7.01 of the Common
Agreement, the Facility Administrative Agent, subject to the terms of the Common
Agreement and the Intercreditor Agreement, may take any of the actions specified
in Section 7.02, 7.03 or 7.05 of the Common Agreement and the Facility
Administrative Agent, the Lenders and the Intercreditor Agent shall have the
rights and remedies set forth in Article VII of the Common Agreement, as
incorporated by reference herein (in addition to any and all other available
remedies at law and in equity and under the other Financing Documents).
(c) Subject to the Intercreditor Agreement, upon the acceleration of
the Loans pursuant to Section 7.01(b) hereof or Section 7.02 of the Common
Agreement, each of the Lenders and the Facility Administrative Agent may take
all such actions as it deems reasonable to recover any amounts due hereunder,
including the commencement and maintenance of proceedings in each of New York
and Mexico in respect of any Facility Note.
(d) All distributions to or for the benefit of the Lenders under or
in respect of any of the Financing Documents shall be received on account of the
Obligations owed to the Lenders without prejudice to any claim by the Facility
Administrative Agent and the Lenders for any deficiency after such distributions
are distributed to the Facility Administrative Agent and the Lenders; the
Facility Administrative Agent shall deliver notice to the Borrower of any such
deficiency and the Borrower shall remain liable for the same. After the
occurrence and during the continuance of an Event of Default, all such
distributions shall be applied to such part of the Obligations as is determined
by the Lenders in their sole discretion or, in the event the Lenders fail to
advise the Facility Administrative Agent of their determination, by the Facility
Administrative Agent. After the occurrence and during the continuance of an
Event of Default, the Lenders may at any time change any application of any such
distributions or other moneys received by the Facility Administrative Agent and
may reapply the same to any part of the Obligations as the Lenders may from time
to time in their absolute discretion determine.
ARTICLE VIII
THE FACILITY ADMINISTRATIVE AGENT
SECTION 8.01. Appointment of Facility Administrative Agent. Each Lender
hereby ratifies, confirms and approves the appointment of WestLB to act as the
initial Facility Administrative Agent under this Agreement, and each such
Facility Lender hereby authorizes WestLB, as the initial Facility Administrative
Agent, to take such actions on its behalf under the provisions of this
Agreement, the Security Documents and the other Financing Documents and to
exercise such powers and perform such duties as are expressly delegated to the
Facility Administrative Agent by the terms hereof and thereof, together with
such other powers as are reasonably incidental hereto and thereto. With respect
to all other matters concerning the Facility Administrative Agent, the
provisions set forth in Article VIII of the Common Agreement with respect to the
Facility Administrative Agent are incorporated herein, mutatis mutandis, as if
fully set forth herein.
-22-
SECTION 8.02. Treatment of Lenders. The Facility Administrative Agent may
treat any Lender as the payee of amounts attributable to its Loans outstanding
unless and until the Facility Administrative Agent receives an Assignment.
SECTION 8.03. Repayment by Lenders to Facility Administrative Agent.
(a) Borrower's Failure to Pay. Unless the Facility Administrative
Agent has been notified in writing by the Borrower at least one (1) Business Day
prior to the date on which any payment to be made by the Borrower under this
Agreement is due that the Borrower does not intend to remit that payment, the
Facility Administrative Agent may, in its discretion, assume that the Borrower
shall remit that payment when so due and the Facility Administrative Agent may,
in its discretion and in reliance upon that assumption, make available to each
Lender on such payment date an amount equal to that Lender's Percentage of that
payment. If the Borrower does not in fact remit such payment to the Facility
Administrative Agent, without restricting the obligation of the Borrower to make
that payment, the Facility Administrative Agent shall promptly notify each
Facility Lender and each such Facility Lender shall forthwith on demand by the
Facility Administrative Agent repay to the Facility Administrative Agent the
amount of such assumed payment made available to that Facility Lender, together
with interest thereon until the date of repayment thereof at a rate determined
by the Facility Administrative Agent (such rate to be conclusive and binding on
that Facility Lender) in accordance with the Facility Administrative Agent's
usual banking practice for such advances to financial institutions of like
standing to that Facility Lender, but in any event at a rate no greater than the
usual interbank offered rate for the sale of deposits in the applicable
currency.
(b) Failure to Fund. Unless the Facility Administrative Agent has
been notified in writing by a Lender at least one (1) Business Day prior to the
date of any Loan that such Lender does not intend to make available its
proportion of any of the Loan requested, the Facility Administrative Agent may,
in its discretion, assume that such Lender shall remit funds to the Facility
Administrative Agent and the Facility Administrative Agent may, in its
discretion and in reliance on that assumption, make available to the Borrower on
the date of any Loans being provided an amount equal to that Lender's proportion
of those Loans. If a Lender does not in fact remit those funds to the Facility
Administrative Agent, the Facility Administrative Agent shall promptly notify
that Lender and the Borrower. Without restricting the obligation of that Lender
to make those funds available and its liability for damages or otherwise as a
result of the failure to do so, if and to the extent that such Lender shall not
have so made its proportion of the Loans requested available to the Facility
Administrative Agent, that Facility Lender agrees to pay to the Facility
Administrative Agent forthwith on demand that Lender's proportion of those Loans
and all reasonable costs and expenses incurred by the Facility Administrative
Agent in connection therewith together with interest thereon (at the rate
payable hereunder by the Borrower in respect of that Loan) for each day from the
date that amount is made available to the Borrower until the date that amount is
paid to the Facility Administrative Agent. Notwithstanding the obligation of
that Lender to repay the Facility Administrative Agent, if that Lender fails to
so pay, the Borrower shall, without prejudice to any rights the Borrower may
have against that Lender, repay that amount to the Facility Administrative Agent
forthwith after demand therefor by the Facility Administrative Agent. The amount
payable to the Facility Administrative Agent pursuant hereto shall be as set
forth in a certificate delivered by the. Facility Administrative Agent to that
Facility Lender and the Borrower (which certificate shall
-23-
contain reasonable details of how the amount payable is calculated) and shall be
conclusive and binding for all purposes, absent manifest error. If that Facility
Lender makes the payment to the Facility Administrative Agent required herein,
the amount so paid (otherwise than in respect of such costs, charges and
expenses of the Facility Administrative Agent) shall constitute that Lender's
proportion of the Loans requested for purposes of this Agreement. If the
Facility Administrative Agent has been notified by a Lender that such Lender
will not make available to the Facility Administrative Agent its proportion of
any Loans requested, the Facility Administrative Agent shall have no obligation
to make available such amount to the Borrower under any provisions of this
Agreement.
SECTION 8.04. Adjustments Among Lenders.
(a) Adjustments. Each Lender agrees that, after an acceleration
pursuant to Section 7.01(b), it will at any time or from time to time upon the
request of the Facility Administrative Agent as required by any Lender purchase
portions of the Loans outstanding made available by the other Lenders and make
any other adjustments which may be necessary or appropriate, in order that the
amount of Loans outstanding made available by each Lender, as adjusted pursuant
to this Section 8.04(a), will be in the amount of such Lender's Percentage of
all outstanding Loans hereunder.
(b) Proceeds of Recoveries. The Lenders agree that, after an
acceleration pursuant to Section 7.01(b), the amount of any repayment made by
the Borrower under this Agreement and the amount of any proceeds from the
exercise of any rights or remedies of the Lenders under this Agreement or any
other Financing Document which are to be applied against amounts owing
hereunder, will be so applied in a manner so that to the extent possible the
amount of Loans outstanding to each Lender after giving effect to that
application will be in the amount of such Lender's Percentage of all outstanding
Loans hereunder.
(c) Payments Not Included. Notwithstanding anything contained in
this Section 8.04, there shall not be taken into account for the purposes of
computing any amount payable to any Lender pursuant to this Section 8.04 any
amount which a Lender receives as a result of any payment (whether voluntary,
involuntary, through the exercise of any right of set-off, or otherwise) on
account of any monies owing by the Borrower to that Lender other than on account
of liabilities arising under this Agreement and the Facility Notes.
SECTION 8.05. Exchange of Information. The Borrower agrees that the
Facility Administrative Agent and each Lender may provide to the other Lenders
or the Facility Administrative Agent that information as is provided by the
Borrower to the Facility Administrative Agent or any Lender pursuant to the
provisions of this Agreement, the Security Documents or the other Financing
Documents concerning the financial position, property and operations of the
Borrower as, in the opinion of the Facility Administrative Agent or that Lender,
is relevant to the ability of the Borrower to fulfill its respective obligations
under or in connection with this Agreement, the Security Documents or the other
Financing Documents. Within thirty (30) days of request therefore following the
date on which any Lender ceases to be a Secured Party (or any Affiliate of a
Secured Party), such Lender shall return the information received by it pursuant
to or in connection with this Agreement, the Security Documents or other
-24-
Financing Documents; provided that such Lender may retain such information as is
required by any applicable Law or any internal policies or practices of such
Lender.
SECTION 8.06. Amendment of Article VIII. The provisions of Sections 8.02,
8.03 or 8.04 may be amended or added to, from time to time, by execution by the
Lenders and the Facility Administrative Agent of an instrument in writing and
that instrument in writing shall validly and effectively amend or add to any or
all of the provisions of Sections 8.02, 8.03 or 8.04 without requiring the
execution of such instrument in writing by the Borrower, provided that such
amendment or addition does not adversely affect the rights or obligations of the
Borrower hereunder. The Facility Administrative Agent shall furnish to the
Borrower a copy of any such instrument in writing amending Sections 8.02, 8.03
or 8.04.
SECTION 8.07. Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon the Facility Administrative Agent or any
other Lender and based on other financial information referred to in Section
4.01(n) of the Common Agreement and such other documents and information as it
has deemed appropriate, made its own credit analysis and decision to enter into
this Agreement. Each Lender represents that it will, independently and without
reliance upon the Facility Administrative Agent and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement, and to make such investigation as it deems necessary to inform
itself as to the business, operations, property, financial and other condition
and creditworthiness of the Project and the Borrower.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Incorporation of Miscellaneous Provisions by Reference
Sections 11.03, 11.08, 11.10, 11.13, 11.14 and 11.15 of the Common
Agreement are hereby incorporated by reference herein as if fully set forth
herein.
SECTION 9.02. Amendments, Etc. No amendment, supplement, cancellation or
waiver of or consent or approval by the Lenders under or consent with regard to
any provision of this Agreement shall in any event be effective unless the same
shall be in writing and signed or approved by the Borrower, the Facility
Administrative Agent and the Majority Lenders and then such amendment,
supplement, modification, cancellation, consent or approval shall be effective
only in the specific instance and for the specific purpose for which given;
provided that (a) no amendment, supplement, modification, cancellation, waiver,
consent or approval shall, unless in writing and signed by all of the Lenders,
do any of the following: (i) take any action which is defined as a Fundamental
Decision in the Common Agreement, (ii) take any action which requires the
consent of each Lender pursuant to the terms of any Transaction Document or
(iii) amend or modify this Section 9.02 and (b) no amendment, supplement,
modification, cancellation, waiver, consent or approval shall, unless in writing
and signed by the Facility Administrative Agent in addition to the Lenders
required hereinabove to take such action, affect the rights or duties of the
Facility Administrative Agent under this Agreement or any Facility
-25-
Note. Any amendment, supplement, modification, waiver, cancellation, consent or
approval so made shall be binding on all of the Lenders. The terms of Section
8.06 and this Section 9.02 shall be subject to the terms of the Intercreditor
Agreement and Section 11.01 of the Common Agreement.
SECTION 9.03. Notices, Etc. All notices and other communications provided
for hereunder shall be given or made in accordance with the provisions of
Section 11.02 of the Common Agreement.
SECTION 9.04. Right of Set-off. The Borrower agrees that, to the maximum
extent permitted by applicable law, it shall have no right of set-off, deduction
or counterclaim in respect of its obligations hereunder, and that the
obligations of the Lenders hereunder are several and not joint.
SECTION 9.05. Binding Effect. This Agreement shall become effective when
it shall have been executed by the Borrower, and the Facility Administrative
Agent and when the Facility Administrative Agent shall have been notified in
writing by each Lender, that such Lender, has executed it and thereafter shall
be binding upon and inure to the benefit of the Borrower, the Facility
Administrative Agent, and each Lender and their respective successors and
assigns, provided that, except for the assignment by the Borrower to CFE, and
the assumption by CFE, of all of the rights and obligations of the Borrower
under the Financing Documents pursuant to and in accordance with the CFE Side
Letter (which assignment and assumption shall not release the Borrower from any
of its obligations under the Financing Documents and shall be subject to the
prior written consent of the Facility Administrative Agent (acting in accordance
with the Intercreditor Agreement) and following which assignment and assumption
the Borrower shall remain jointly and severally liable with CFE for the payment
and performance of all such obligations under the Financing Documents), the
Borrower shall not have the right to assign its rights hereunder or any interest
herein without the prior written consent of all of the Lenders.
SECTION 9.06. Assignments and Participations.
(a) Assignments. Any Lender may assign to one or more assignees
(each, an "Assignee") all or a portion of its rights and obligations under this
Agreement and the other Financing Documents (including all or a portion of its
Commitment, the Loans owing to it and the Facility Note(s) held by it) with the
consent of the Facility Administrative Agent (which consent shall not be
unreasonably withheld or delayed); provided, that (i) if any Assignee is an
Affiliate of such assignor Lender or is a Lender, no such consent shall be
required and (ii) the Borrower shall not be responsible for any costs (including
increased withholding taxes) greater than that which would have been payable by
such Lender absent such assignment; provided, further, that (A) each such
assignment shall be of a constant, and not a varying, percentage of all of the
assigning Lender's rights (including its Construction Loans and Contingency
Loans) and obligations (including its Construction Loan Commitment and its
Contingency Loan Commitment) under this Agreement, (B) if the Assignee is not a
Lender, unless agreed to by the Facility Administrative Agent, the amount of the
Commitment of the assigning Lender being assigned pursuant to each such
assignment (determined as of the date of the Assignment with respect to such
assignment) shall in no event be less than the lesser of the amount of such
-26-
Lender's then remaining Commitment and U.S.$5,000,000 (except in the case of
assignments between Lenders at the time already parties hereto), (C) the
Assignee shall pay to the Facility Administrative Agent an assignment fee in an
amount equal to U.S.$3,500 (the "Assignment Fee"), (D) the parties to each such
assignment shall execute and deliver to the Facility Administrative Agent a duly
completed Assignment, together with any Facility Note(s) to be surrendered by
the assigning Lender to the Borrower in connection with such assignment, and (E)
in no event shall any such assignment be made to the Borrower, any Sponsor or to
an Affiliate of the Borrower or of any Sponsor. Upon such execution, delivery,
acceptance and recording, from and after the effective date specified in each
Assignment, (1) the Assignee thereunder shall be a party hereto and, to the
extent that rights and obligations hereunder have been assigned to it pursuant
to such Assignment, have the rights and obligations of a Lender hereunder and
(2) the Lender assignor thereunder shall, to the extent that rights and
obligations hereunder have been assigned by it to an Assignee pursuant to such
Assignment, relinquish its rights and be released from its obligations under
this Agreement (and, in the case of an Assignment covering all or the remaining
portion of an assigning Lender's rights and obligations under this Agreement,
such Lender shall cease to be a party hereto).
By executing and delivering an Assignment, the Lender assignor thereunder
and the Assignee thereunder confirm to and agree with each other and the other
parties hereto as follows: (i) other than as provided in such Assignment, such
assigning Lender makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with any Financing Document or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of any Financing
Document or any other instrument or document furnished pursuant thereto; (ii)
such assigning Lender makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrower or the
performance or observance by the Borrower of any of its obligations under any
Financing Document or any other instrument or document furnished pursuant
thereto; (iii) such Assignee confirms that it has received a copy of each
Financing Document and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment; (iv) such Assignee shall, independently and without reliance upon
the Facility Administrative Agent, such assigning Lender or any other Lender and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under the Financing Documents; (v) such Assignee appoints and authorizes the
Facility Administrative Agent to take such action as agent on its behalf and to
exercise such powers under the Financing Documents as are delegated to the
Facility Administrative Agent by the terms thereof, together with such powers as
are reasonably incidental thereto; and (vi) such Assignee agrees that it shall
perform in accordance with their terms all of the obligations that by the terms
of the Financing Documents are required to be performed by it as a Lender.
Upon its receipt of the Assignment Fee and an Assignment executed by an
assigning Lender and the Assignee thereunder, together with any Facility Note(s)
to be surrendered by the assigning Lender to the Borrower in connection with
such assignment, the Facility Administrative Agent shall, if such Assignment has
been completed and is in substantially the form of Exhibit 9.06(a) hereto, (i)
accept such Assignment and (ii) give prompt notice thereof to the Borrower;
provided, that the failure to give such notice shall not affect the validity of
such Assignment and the Borrower's obligations thereunder. Within five (5)
Business Days after its
-27-
receipt of such notice and a request for new Facility Notes, the Borrower shall
execute and deliver to the Facility Administrative Agent in exchange for the
surrendered Facility Note(s) one or more new Facility Note(s) to such Assignee,
in an aggregate principal amount equal to the aggregate principal amount of
Loans assumed by it pursuant to such Assignment and, if the assigning Lender has
retained any Loans hereunder, one or more new Facility Note(s) to the assigning
Lender in an aggregate principal amount equal to the aggregate principal amount
of Loans retained by it hereunder. Such new Facility Note(s) shall be in an
aggregate principal amount equal to the aggregate principal amount of such
surrendered Facility Note(s).
Any Lender may at any time assign all or any portion of its rights under
this Agreement and its Facility Notes to a Federal Reserve Bank. No such
assignment shall release the transferor Lender from its obligations hereunder.
(b) Participations. Any Lender may, without the consent of the
Borrower or the Facility Administrative Agent, sell participations to one or
more banks or other entities (each, a "Participant") in all or a portion of its
rights and obligations under the Financing Documents (including all or a portion
of its Commitment, the Loans owing to it and the Facility Note or Facility Notes
held by it); provided, however, that (i) such Lender's obligations under this
Agreement (including its Commitment to the Borrower hereunder) shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations, (iii) such Lender shall remain
the holder of any such Facility Note for all purposes of this Agreement, (iv)
the Borrower, the Facility Administrative Agent and the other Lenders shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement, (v) a Participant shall be
entitled to rely on the benefit of the yield protection provisions contained in
Section 3.03 hereof and Section 3.02 of the Common Agreement and the right of
set-off contained in Section 11.05(a) of the Common Agreement; provided, that
such Participant shall not be entitled to receive any greater amount under
Section 3.02 or Section 11.05(a) of the Common Agreement (including increased
withholding taxes) than the applicable Lender would have been entitled to
receive with respect to the participation sold to such Participant, unless the
sale of the participation to such Participant is made with the Borrower's prior
written consent, and (vi) a Participant shall not have any right to approve any
amendment, modification or waiver of any provision of any Financing Document or
to consent to the departure by the Borrower therefrom (other than amendments,
modifications or waivers (A) decreasing the amount of principal or the rate of
interest payable on the Loans or Facility Note(s) of the applicable Lender, (B)
extending any scheduled principal payment date or date fixed for the payment of
interest on the Loans or Facility Note(s) of such Lender or (C) extending the
Commitment of such Lender, as to which, in each case, such Participant may be
granted consent rights by such Lender).
(c) Disclosure. Any Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
9.06, disclose to the Assignee or Participant or proposed Assignee or
Participant, any information relating to the Borrower furnished to such Lender
by or on behalf of the Borrower; provided, that, prior to any such disclosure,
the Assignee or Participant or proposed Assignee or Participant shall agree, in
accordance with the terms of Section 9.07, to preserve the confidentiality of
any Confidential Information received by it from such Lender.
-28-
SECTION 9.07. Confidentiality; Use of Name. In connection with the
negotiation and administration of this Agreement and the other Financing
Documents, the Borrower has furnished and will from time to time furnish to the
Facility Administrative Agent and the Lenders (each, a "Recipient") written
information that is identified to the Recipient in writing when delivered as
confidential (such information, other than any such information that (i) was
publicly available, or otherwise known to the Recipient, at the time of
disclosure, (ii) subsequently becomes publicly available other than through any
act or omission by the Recipient in breach of its obligations hereunder, or
(iii) otherwise subsequently becomes known to the Recipient other than through a
Person whom the Recipient knows to be acting in violation of his or its
obligations to the Borrower, being hereinafter referred to as "Confidential
Information"). The Recipient shall maintain the confidentiality of any
Confidential Information in accordance with such procedures as the Recipient
applies generally to information of that nature. It is understood, however, that
the foregoing will not restrict the Recipient's ability to freely exchange such
Confidential Information with current or prospective participants in or
assignees of the Recipient's position herein, but the Recipient's ability to so
exchange Confidential Information shall be conditioned upon any such prospective
participant's or assignee's entering into an understanding as to confidentiality
similar to this provision. It is further understood that the foregoing will not
prohibit the disclosure of any or all Confidential Information if and to the
extent that such disclosure may be required or requested (i) by a regulatory
agency or otherwise in connection with an examination of the Recipient's records
by appropriate authorities, (ii) pursuant to court order, subpoena or other
legal process or in connection with any pending or threatened litigation, (iii)
otherwise as required by law, or (iv) in order to protect its interests or its
rights or remedies hereunder or under the other Financing Documents, in the
event of any required disclosure under clause (ii) or (iii), above, the
Recipient agrees to use reasonable efforts to inform the Borrower as promptly as
practicable. Nothing in this Section 9.07 shall limit or restrict the right of
the Facility Administrative Agent or any Lender to share Confidential
Information with the Facility Administrative Agent, any Lender or any other
Secured Party.
SECTION 9.08. GOVERNING LAW, SUBMISSION TO JURISDICTION, ETC
(a) THIS AGREEMENT AND EACH OF THE OTHER FINANCING DOCUMENTS (UNLESS
SUCH DOCUMENT EXPRESSLY STATES OTHERWISE THEREIN) SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
(b) Each of the parties hereto hereby (i) expressly and irrevocably
submits and consents to the jurisdiction of any State or Federal court sitting
in the Borough of Manhattan, and any appellate court having jurisdiction over
appeals from any of such courts, in any action to resolve any controversy or
claim arising out of this Agreement or any other Financing Document, (ii) agrees
that all claims in such action may be decided in any such court, (iii) waives,
to the fullest extent it may effectively do so, the defense of an inconvenient
forum and (iv) consents to the service of process by registered or certified
mail (or any substantially similar form of mail), postage prepaid and return
receipt requested, or by personal service within or without the State of New
York, at the address for notices referred to in Section 9.03. A final judgment
in any such action shall be conclusive and may be enforced in other
jurisdictions. Furthermore, each party hereby submits to the competent courts of
its corporate domicile in any
-29-
action or proceeding against it in connection with this Agreement or any other
Financing Document. Nothing herein shall affect the right of any party to bring
legal action or proceedings in any other competent jurisdiction.
(c) To the extent the Borrower may, in any action or proceeding
arising out of or relating to any of the Financing Documents brought in Mexico
or elsewhere, be entitled under applicable Law to require or claim that any
Lender or the Administrative Agent post security for costs or take similar
action, the Borrower hereby irrevocably waives and agrees not to claim the
benefit of such entitlement.
SECTION 9.09. Execution in Counterparts. This Agreement may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
SECTION 9.10. Severability. Any provision of this Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 9.11. Entire Agreement. This Agreement and any agreement, document
or instrument attached hereto or referred to herein or in any other Financing
Document (including, without limitation, the Common Agreement, the Depositary
Agreement and the Intercreditor Agreement) integrate all the terms and
conditions mentioned herein or incidental hereto and supersede all oral
negotiations and prior writings in respect to the subject matter hereof. In the
event of any conflict or inconsistency between the terms, conditions and
provisions of this Agreement and the terms, conditions and provisions of the
Common Agreement, the Depositary Agreement or any other Financing Document, the
terms, conditions and/or provisions of this Agreement shall prevail. In the case
of any conflict between the provisions of this Agreement and the provisions of
the Intercreditor Agreement, the provisions of the Intercreditor Agreement shall
control as among the Secured Parties and the provisions of this Agreement shall
control as between the Lenders and the Facility Administrative Agent, on the one
hand, and the Borrower, on the other hand.
-30-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
THE BORROWER:
CONSTRUCTORA INTERNACIONAL DE
INFRAESTRUCTURA, S.A. DE C.V.,
as the Borrower
By: _____________________________________
Name:
Title:
Address for Notices:
Constructora Internacional de
Infraestructura, S.A. de C.V.
c/o Empresas ICA, Sociedad Controladora,
S.A. de C.V.
Mineria 145, Edificio D, 3 Piso
11800 Mexico, D.F., Mexico
Attention: Dr. Jose Luis Guerrero A.
Telephone: (5255) 5272-9991 ext. 2060
Telecopier: (5255) 5227-5043
[Signature page to Credit Agreement]
THE ADMINISTRATIVE AGENT:
WESTLB AG, NEW YORK BRANCH,
as Facility Administrative Agent
By: _____________________________________
Name: Jared Brenner
Title: Director
By: _____________________________________
Name: Susana Vivares
Title: Associate Director
Address for Notices:
WestLB AG, New York Branch
1211 Avenue of the Americas
New York, New York 10036
Attention: Jared Brenner
Telephone: 1 (212) 852-6116
Telecopier: 1 (212) 852-6386
[Signature page to Credit Agreement]
THE LENDERS:
WESTLB AG, NEW YORK BRANCH, as a Lender
By: _____________________________________
Name: Jared Brenner
Title: Director
By: _____________________________________
Name: Susana Vivares
Title: Associate Director
Domestic Lending Office:
WestLB AG, New York Branch
1211 Avenue of the Americas
New York, New York 10036
LIBOR Lending Office:
WestLB AG, New York Branch
1211 Avenue of the Americas
New York, New York 10036
Address for Notices:
WestLB AG, New York Branch
1211 Avenue of the Americas
New York, New York 10036
Attention: Remy Savoya
Telephone: 1 (212) 597-1485
Telecopier: 1 (212) 852-6386
[Signature page to Credit Agreement]
BBVA BANCOMER, S.A., INSTITUCION DE
BANCA MULTIPLE, GRUPO FINANCIERO BBVA
BANCOMER, SUCURSAL GRAN CAIMAN, as a
Lender
By: ___________________________________
Name:
Title:
By: ___________________________________
Name:
Title:
Domestic Lending Office:
BBVA Bancomer, S.A.
Montes Urales 620-PISO 2
Mexico, D.F./11000
LIBOR Lending Office:
BBVA Bancomer, S.A.
Montes Urales 620-PISO 2
Mexico, D.F./11000
Address for Notices:
BBVA Bancomer, S.A.
Montes Urales 620-PISO 2
Mexico, D.F./11000
Attention: Juan Carlos Rojas Inventes
Telephone: (52) 55 5201 2302
Telecopier: (52) 55 5201 2313
[Signature page to Credit Agreement]
BANCO INTERACCIONES, S.A., INSTITUCION
DE BANCA MULTIPLE, GRUPO FINANCIERO
INTERACCIONES, as a Lender
By: _____________________________________
Name:
Title:
By: ___________________________________
Name:
Title:
Domestic Lending Office:
Banco Interacciones, S.A., Institucion de
Banca Multiple, Grupo Financiero
Interacciones
Av: Paseo de la Reforma 383 Piso 15, Col.
Cuauhtemoc
Mexico, D.F., Mexico C.P. 06500
LIBOR Lending Office:
Banco Interacciones, S.A., Institucion de
Banca Multiple, Grupo Financiero
Interacciones
Av: Paseo de la Reforma 383 Piso 15, Col.
Cuauhtemoc
Mexico, D.F., Mexico C.P. 06500
Address for Notices:
Banco Interacciones, S.A., Institucion de
Banca Multiple, Grupo Financiero Interacciones
Av: Paseo de la Reforma 383 Piso 15, Col.
Cuauhtemoc
Mexico, D.F., Mexico C.P. 06500
Attention: Jose Antonio Estrada Perez
Telephone: 525 3268627
Telecopier: 525 3268642
[Signature page to Credit Agreement]
HSBC MeXICO S.A., INSTITUCION DE BANCA
MULTIPLE, GRUPO FINANCIERO HSBC, as a
Lender
By: _____________________________________
Name:
Title:
Domestic Lending Office:
HSBC Mexico S.A., Instucion de Banca
Multiple, Grupo Financiero HSBC
Reforma No. 156 Piso 13, Col. Juarez
06600 Mexico, D.F.
Mexico
LIBOR Lending Office:
HSBC Mexico S.A., Instucion de Banca
Multiple, Grupo Financiero HSBC
Reforma No. 156 PISO 13, Col. Juarez
06600 Mexico, D.F.
Mexico
Address for Notices:
HSBC Mexico S.A., Instucion de Banca
Multiple, Grupo Financiero HSBC
Reforma No. 156 PISO 13, Col. Juarez
06600 Mexico, D.F.
Mexico
Attention: Jose Manuel Dominguez/Diana
Wilkin
Telephone: 52 55 57212606/52 55 57212607
Telecopier: 52 55 57212383
[Signature page to Credit Agreement]
BANCO SANTANDER CENTRAL HISPANO,
S.A., NEW YORK BRANCH, as a Lender
By: ___________________________________
Name:
Title:
By: ___________________________________
Name:
Title:
Domestic Lending Office:
Banco Santander Central Hispano, S.A., New
York Branch
45 East 53rd Street
New York, New York 10022
LIBOR Lending Office:
Banco Santander Central Hispano, S.A., New
York Branch
45 East 53rd Street
New York, New York 10022
Address for Notices:
Banco Santander Central Hispano, S.A., New
York Branch
45 East 53rd Street
New York, New York 10022
Attention: Ligia Castro
Telephone: 212 350 3677
Telecopier: 212 350 3647
[Signature page to Credit Agreement]
DEPFA INVESTMENT BANK LIMITED,
as a Lender
By: _______________________________________
Name:
Title:
By: _______________________________________
Name:
Title:
Domestic Lending Office:
DEPFA Investment Bank Limited
178 Athalassa Avenue, 2nd Floor
CY-1665 Nicosia Cyprus
LIBOR Lending Office:
DEPFA Investment Bank Limited
178 Athalassa Avenue, 2nd Floor
CY-1665 Nicosia Cyprus
Address for Notices:
DEPFA Investment Bank Limited
178 Athalassa Avenue, 2nd Floor
CY-1665 Nicosia Cyprus
Attention: Olga Alexandrou/Maria Salousti
Telephone: 357 22 879313/357 22 879315
Telecopier: 357 22 318032
[Signature page to Credit Agreement]
NORDDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH,
as a Lender
By:________________________________________
Name:
Title:
By:________________________________________
Name:
Title:
Domestic Lending Office:
NORD/LB New York Branch
1114 Avenue of the Americas, 37th Floor
New York, NY 10036
LIBOR Lending Office:
NORD/LB Cayman Islands Branch
1114 Avenue of the Americas, 37th Floor
New York, NY 10036
Address for Notices:
NORD/LB New York Branch
1114 Avenue of the Americas, 37th Floor
New York, NY 10036
Attention: Kathy Alvarez
Telephone: (212) 812-6984
Telecopier: (212) 812-6860
[Signature page to Credit Agreement]
GENERAL ELECTRIC CAPITAL
CORPORATION, as a Lender
By:________________________________________
Name:
Title:
Domestic Lending Office:
General Electric Capital Corporation
120 Long Ridge Road
Stamford, CT 06927
LIBOR Lending Office:
General Electric Capital Corporation
120 Long Ridge Road
Stamford, CT 06927
Address for Notices:
General Electric Capital Corporation
120 Long Ridge Road
Stamford, CT 06927
Attention: Mr. Ramzi Nassar, SVP
Telephone: (203) 357 4450
Telecopier: (203) 961 5861
[Signature page to Credit Agreement]
SCHEDULE 1
COMMITMENTS; PERCENTAGES
Lender Construction Loan Commitment Contingency Loan Commitment Percentage
------ ---------------------------- --------------------------- ----------
WestLB AG, New U.S.$88,284,212.57 U.S.$11,715,787.43 22%
York Branch
Banco Santander
Central Hispano, U.S.$87,128,144.48 U.S.$11,562,371.02 22%
S.A., New York
Branch
HSBC Mexico S.A.,
Institucion de Banca U.S.$65,057,091.34 U.S.$8,633,424.16 16%
Multiple, Grupo
Financiero HSBC
DEPFA Investment
Bank Limited U.S.$44,142,106.28 U.S.$5,857,893.72 11%
BBVA Bancomer,
S.A., Institucion de U.S.$44,142,106.28 U.S.$5,857,893.72 11%
Banca Multiple,
Grupo Financiero
BBVA Bancomer,
Sucursal Gran
Caiman
Norddeutsche
Landesbank
Girozentrale, New U.S.$44,142,106.28 U.S.$5,857,893.72 11%
York Branch
General Electric
Capital Corporation U.S.$22,071,053.14 U.S.$2,928,946.86 6%
Lender Construction Loan Commitment Contingency Loan Commitment Percentage
------ ---------------------------- --------------------------- ----------
Banco Interacciones,
S.A., Institucion de U.S.$4,414,210.63 U.S.$585,789.37 1%
Banca Multiple,
Grupo Financiero
Interacciones
---------------------------- --------------------------- ----------------
Total Construction Loan Total Contingency Loan Total Percentage
Commitments Commitments
U.S.$399,381,031 U.S.$53,000,000 100%