Exhibit 4.14
CREDIT AGREEMENT
among
CEMEX, S.A. de C.V.,
as Borrower
and
CEMEX MEXICO, S.A. de C.V.,
as Guarantor
and
EMPRESAS TOLTECA de MEXICO, S.A. de C.V.,
as Guarantor
and
The Several Lenders Party Hereto,
as Lenders
and
BARCLAYS BANK PLC, NEW YORK BRANCH,
as Administrative Agent
and
BARCLAYS CAPITAL,
THE INVESTMENT BANKING DIVISION
OF BARCLAYS BANK PLC,
as Joint Lead Arranger and Joint Bookrunner
and
CITIGROUP GLOBAL MARKETS INC.,
as Documentation Agent, Joint Lead Arranger and Joint Bookrunner
US$1,200,000,000
Dated as of May 31, 2005
TABLE OF CONTENTS
Page
----
ARTICLE I DEFINITIONS.....................................................................................1
1.01 Certain Definitions................................................................................1
1.02 Other Definitional Provisions.....................................................................18
1.03 Accounting Terms and Determinations...............................................................19
ARTICLE II THE LOAN FACILITIES............................................................................19
2.01 Revolving Loans...................................................................................19
2.02 Interest..........................................................................................23
ARTICLE III TERMINATION AND REDUCTION OF COMMITMENTS; FEES, TAXES, PAYMENT PROVISIONS......................24
3.01 Termination or Reduction of Commitments...........................................................24
3.02 Fees..............................................................................................25
3.03 Computation of Fees...............................................................................25
3.04 Taxes.............................................................................................25
3.05 General Provisions as to Payments.................................................................28
3.06 Funding Losses....................................................................................29
3.07 Basis for Determining Interest Rate Inadequate or Unfair..........................................30
3.08 Capital Adequacy..................................................................................30
3.09 Illegality........................................................................................31
3.10 Requirements of Law...............................................................................32
3.11 Substitute Lenders................................................................................33
3.12 Sharing of Payments, Etc..........................................................................33
ARTICLE IV CONDITIONS PRECEDENT...........................................................................34
4.01 Conditions to Effectiveness.......................................................................34
4.02 Conditions Precedent to Borrowings and Continuation or
Conversion of the Loans..........................................................................36
ARTICLE V REPRESENTATIONS AND WARRANTIES OF THE BORROWER.................................................36
5.01 Corporate Existence and Power.....................................................................36
5.02 Power and Authority; Enforceable Obligations......................................................36
5.03 Compliance with Law and Other Instruments.........................................................37
5.04 Consents/Approvals................................................................................37
5.05 Financial Information.............................................................................37
5.06 Litigation........................................................................................37
5.07 No Immunity.......................................................................................38
5.08 Governmental Regulations..........................................................................38
5.09 Direct Obligations; Pari Passu; Liens.............................................................38
5.10 Subsidiaries......................................................................................38
5.11 Ownership of Property.............................................................................38
5.12 No Recordation Necessary..........................................................................38
5.13 Taxes.............................................................................................39
5.14 Compliance with Laws..............................................................................39
5.15 Absence of Default................................................................................39
5.16 Full Disclosure...................................................................................40
5.17 Choice of Law; Submission to Jurisdiction and
Waiver of Sovereign Immunity.....................................................................40
5.18 Aggregate Exposure................................................................................40
5.19 Pension and Welfare Plans.........................................................................40
5.20 Environmental Matters.............................................................................40
5.21 Margin Regulations................................................................................41
ARTICLE VI REPRESENTATIONS AND WARRANTIES OF THE GUARANTORS...............................................42
6.01 Corporate Existence and Power.....................................................................42
6.02 Power and Authority; Enforceable Obligations......................................................42
6.03 Compliance with Law and Other Instruments.........................................................42
6.04 Consents/Approvals................................................................................43
6.05 Litigation; Material Adverse Effect...............................................................43
6.06 No Immunity.......................................................................................43
6.07 Governmental Regulations..........................................................................43
6.08 Direct Obligations; Pari Passu....................................................................43
6.09 No Recordation Necessary..........................................................................43
6.10 Choice of Law; Submission to Jurisdiction and
Waiver of Sovereign Immunity.....................................................................44
ARTICLE VII AFFIRMATIVE COVENANTS..........................................................................44
7.01 Financial Reports and Other Information...........................................................44
7.02 Notice of Default and Litigation..................................................................45
7.03 Compliance with Laws and Contractual Obligations, Etc.............................................45
7.04 Payment of Obligations............................................................................46
7.05 Maintenance of Insurance..........................................................................46
7.06 Conduct of Business and Preservation of Corporate Existence.......................................46
7.07 Books and Records.................................................................................46
7.08 Maintenance of Properties, Etc....................................................................46
7.09 Use of Proceeds...................................................................................47
7.10 Aggregate Exposure................................................................................47
7.11 Pari Passu Ranking................................................................................47
7.12 Transactions with Affiliates......................................................................47
7.13 Maintenance of Governmental Approvals.............................................................47
7.14 Measurement Date..................................................................................47
7.15 Inspection of Property............................................................................47
ARTICLE VIII NEGATIVE COVENANTS.............................................................................48
8.01 Financial Conditions..............................................................................48
8.02 Liens.............................................................................................48
8.03 Consolidations and Mergers........................................................................50
8.04 Sales of Assets, Etc..............................................................................51
8.05 Change in Nature of Business......................................................................51
8.06 Margin Regulations................................................................................51
ARTICLE IX OBLIGATIONS OF GUARANTORS......................................................................51
9.01 The Guaranty......................................................................................51
9.02 Nature of Liability...............................................................................51
9.03 Unconditional Obligations.........................................................................51
9.04 Independent Obligation............................................................................52
9.05 Waiver of Notices.................................................................................52
9.06 Waiver of Defenses................................................................................53
9.07 Bankruptcy and Related Matters....................................................................54
9.08 No Subrogation....................................................................................55
9.09 Right of Contribution.............................................................................55
9.10 General Limitation on Guaranty....................................................................55
9.11 Covenants of the Guarantors.......................................................................55
ARTICLE X EVENTS OF DEFAULT..............................................................................56
10.01 Events of Default................................................................................56
10.02 Remedies.........................................................................................58
10.03 Notice of Default................................................................................58
10.04 Default Interest.................................................................................58
ARTICLE XI THE ADMINISTRATIVE AGENT.......................................................................59
11.01 Appointment and Authorization....................................................................59
11.02 Delegation of Duties.............................................................................59
11.03 Liability of Administrative Agent................................................................59
11.04 Reliance by Administrative Agent.................................................................60
11.05 Notice of Default................................................................................60
11.06 Credit Decision..................................................................................60
11.07 Indemnification..................................................................................61
11.08 Administrative Agent in Individual Capacity......................................................61
11.09 Successor Administrative Agent...................................................................62
ARTICLE XII THE JOINT BOOKRUNNERS..........................................................................62
12.01 The Joint Bookrunners............................................................................62
12.02 Liability of Joint Bookrunners...................................................................63
12.03 Joint Bookrunners in their respective Individual Capacities......................................63
12.04 Credit Decision..................................................................................63
ARTICLE XIII MISCELLANEOUS..................................................................................64
13.01 Notices..........................................................................................64
13.02 Amendments and Waivers...........................................................................64
13.03 No Waiver; Cumulative Remedies...................................................................65
13.04 Payment of Expenses, Etc.........................................................................65
13.05 Indemnification..................................................................................66
13.06 Successors and Assigns...........................................................................66
13.07 Right of Set-off.................................................................................68
13.08 Confidentiality..................................................................................65
13.09 Use of English Language..........................................................................66
13.10 Governing Law....................................................................................69
13.11 Submission to Jurisdiction.......................................................................69
13.12 Appointment of Agent for Service of Process......................................................70
13.13 Waiver of Sovereign Immunity.....................................................................70
13.14 Judgment Currency................................................................................70
13.15 Counterparts.....................................................................................71
13.16 USA PATRIOT Act..................................................................................71
13.17 Severability.....................................................................................71
13.18 Survival of Agreements and Representations.......................................................71
SCHEDULES
Schedule 1.01(a) -- Commitments
Schedule 1.01(b) -- Lending Offices
Schedule 1.01(c) -- Notice Details
Schedule 5.06 -- Litigation
Schedule 5.10 -- Subsidiaries
Schedule 6.05 -- Litigation
Schedule 8.02(e)(i) -- Liens
Schedule 8.02(e)(ii) -- Liens
EXHIBITS
Exhibit A -- Form of Note
Exhibit B -- Notice of Borrowing
Exhibit C -- Form of Notice of Extension/Conversion
Exhibit D -- Form of Assignment and Assumption Agreement
Exhibit E -- Form of Opinion of Special New York Counsel to the Borrower
and the Guarantors
Exhibit F -- Form of Opinion of Mexican Counsel to the Borrower and
the Guarantors
Exhibit G -- Mandatory Cost Formula
CREDIT AGREEMENT
----------------
CREDIT AGREEMENT, dated as of May 31, 2005 among CEMEX, S.A. de C.V., a
sociedad anonima de capital variable organized and existing pursuant to the laws
of the United Mexican States (the "Borrower"), CEMEX MEXICO, S.A. de C.V., a
sociedad anonima de capital variable organized and existing pursuant to the laws
of the United Mexican States, EMPRESAS TOLTECA DE MEXICO, S.A. de C.V., a
sociedad anonima de capital variable organized and existing pursuant to the laws
of the United Mexican States (each a "Guarantor" and together, the
"Guarantors"), the several Lenders party hereto, BARCLAYS BANK PLC, NEW YORK
BRANCH, as Administrative Agent, BARCLAYS CAPITAL, THE INVESTMENT BANKING
DIVISION OF BARCLAYS BANK PLC, as Joint Lead Arranger and Joint Bookrunner and
CITIGROUP GLOBAL MARKETS INC., as Documentation Agent, Joint Lead Arranger and
Joint Bookrunner.
RECITALS
WHEREAS, the Borrower entered into a term credit agreement, dated as of
April 5, 2005 (the "Term Credit Agreement"), among the Borrower, the Guarantors,
the several lenders party thereto, Barclays Bank PLC, as administrative agent,
Barclays Capital, the Investment Banking Division of Barclays Bank PLC, as joint
lead arranger and joint bookrunner and Citigroup Global Markets Inc., as
documentation agent, joint lead arranger and joint bookrunner;
WHEREAS, the Borrower proposes to terminate the Term Credit Agreement
and enter into a new five-year multi-currency revolving credit facility; and
WHEREAS, the Guarantors are willing to guaranty all of the Obligations
of the Borrower.
NOW, THEREFORE, each of the Parties hereto hereby agrees as follows:
ARTICLE I
DEFINITIONS
-----------
1.01 Certain Definitions. As used in this Agreement, the following
terms shall have the following meanings:
"Acquired Subsidiary" means any Subsidiary acquired by the
Borrower or any other Subsidiary after the date hereof in an
Acquisition, and any Subsidiaries of such Acquired Subsidiary on the
date of such Acquisition.
"Acquiring Subsidiary" means any Subsidiary of the Borrower or
any one of its Subsidiaries solely for the purpose of participating as
the acquiring party in any Acquisition, and any Subsidiaries of such
Acquiring Subsidiary acquired in such Acquisition.
"Acquisition" means any merger, consolidation, acquisition or
lease of assets, acquisition of securities or business combination or
acquisition, or any two or more of such transactions, if upon the
completion of such transaction or transactions, the Borrower or any
Subsidiary thereof has acquired an interest in any Person who is deemed
to be a Subsidiary under this Agreement and was not a Subsidiary prior
thereto.
"Adjusted Consolidated Net Tangible Assets" means, with
respect to any Person, the total assets of such Person and its
Subsidiaries (less applicable depreciation, amortization and other
valuation reserves), including any write-ups or restatements required
under Mexican GAAP (other than with respect to items referred to in
clause (ii) below), after deducting therefrom (i) all current
liabilities of such Person and its Subsidiaries (excluding the current
portion of long-term debt) and (ii) all goodwill, trade names,
trademarks, licenses, concessions, patents, unamortized debt discount
and expense and other intangibles, all as determined on a consolidated
basis in accordance with Mexican GAAP.
"Administrative Agent" means Barclays Bank PLC, in its
capacity as administrative agent for the Lenders, and its successors in
such capacity.
"Administrative Agent's Payment Office" means the
Administrative Agent's address for payments set forth on the signature
pages hereof or such other address as the Administrative Agent may from
time to time specify to the other Parties hereto pursuant to the terms
of this Agreement.
"Affected Lender" has the meaning specified in Section
3.09(a).
"Affiliate" means, in relation to any Person, a Subsidiary of
that Person or a Holding Company of that Person or any other Subsidiary
of that Holding Company.
"Aggregate Committed Amount" means the aggregate amount of all
of the Commitments.
"Aggregate Exposure" means the Dollar Amount of the aggregate
principal amount of all Loans outstanding.
"Agreement" means this Credit Agreement, as the same may
hereafter be amended, supplemented or otherwise modified from time to
time.
"Applicable Margin" means, at any date, the applicable margin
set forth below based upon the Borrower's Consolidated Net Debt/EBITDA
Ratio (it being understood that measurement of the Consolidated Net
Debt/EBITDA Ratio as of the most recent Measurement Date is sufficient
for this purpose):
Applicable Margin
------------------------------------
Base
Rate LIBOR Euribor
Consolidated Net Debt/EBITDA Ratio Loans Loans Loans
- -------------------------------------------------------------------------------
3.00 to 1 or greater 0.50% 0.50% 0.50%
Less than 3.00 to 1, but greater
than or equal to 2.50 to 1 0.45% 0.45% 0.45%
Less than 2.50 to 1, but greater
than or equal to 2.00 to 1 0.40% 0.40% 0.40%
Less than 2.00 to 1 0.35% 0.35% 0.35%
; provided, however, the initial Applicable margin shall be 0.50%.
"Assignee" has the meaning specified in Section 13.06(b).
"Assignment and Assumption Agreement" means an assignment and
assumption agreement in substantially the form of Exhibit D.
"Available Commitments" means, as of any date, the Aggregate
Committed Amount minus the Aggregate Exposure.
"Average Aggregate Committed Amount" means, for any
Utilization Period, the sum of the Aggregate Committed Amount as of the
end of each day during such Utilization Period, divided by the number
of days in such Utilization Period.
"Average Outstanding Loans" means, for any Utilization Period,
the sum of the aggregate principal amount of Loans outstanding under
this Agreement as of the end of each day during such Utilization
Period, divided by the number of days in such Utilization Period.
"Base Rate" means, for any day, the higher of (a) the Prime
Rate or (b) the Federal Funds Rate plus 1/2% per annum, in each case as
in effect for such day. Any change in the Prime Rate announced by the
Reference Banks shall take effect at the opening of business on the day
specified in the public announcement of such change.
"Base Rate Loan" means any Loan made or maintained at a rate
of interest calculated with reference to the Base Rate.
"Bookrunners" or "Joint Bookrunners" means Barclays Capital,
the Investment Banking Division of Barclays Bank PLC, and Citigroup
Global Markets Inc., in their capacity as joint bookrunners hereunder,
and each of their successors in such capacity.
"Borrower" has the meaning specified in the preamble hereto.
"Borrowing" means the aggregate amount of Loans hereunder to
be made to the Borrower pursuant to Article II on a particular date by
each of the Lenders.
"Borrowing Request" means a Notice of Borrowing.
"Business Day" means any day other than a Saturday or Sunday
or other day on which commercial banks in New York City are authorized
or required by law to close and
(i) (in relation to any date for payment or lending or
purchase of, or the determination of an interest rate or rate of
exchange in relation to, Japanese Yen) a day on which the Tokyo
interbank market is also open for dealings in Japanese Yen; or
(ii) (in relation to any date for payment or lending or
purchase of, or the determination of an interest rate or rate of
exchange in relation to, Sterling) a day on which the London interbank
market is also open for dealings in Sterling; or
(iii) (in relation to any date for payment or lending or
purchase of, or the determination of an interest rate or rate of
exchange in relation to, Euro), any TARGET Day.
"Capital Lease" means, as to any Person, the obligations of
such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified
and accounted for as capital leases on a balance sheet of such Person
under Mexican GAAP and, for the purposes of this Agreement, the amount
of such obligations at any time shall be the capitalized amount thereof
at such time determined in accordance with Mexican GAAP.
"Capital Stock" means any and all shares, interests,
participations or other equivalents (however designed) of capital stock
of a corporation, any and all equivalent ownership interests in a
Person (other than a corporation) and any and all warrants, rights or
options to purchase any of the foregoing.
"Commitment" means, with respect to each Lender, the aggregate
principal Dollar Amount set forth opposite the name of such Lender in
Schedule 1.01(a) or in any Assignment and Assumption Agreement, as such
amount may be reduced or increased from time to time in accordance with
the provisions hereof.
"Commitment Fee" has the meaning specified in Section 3.02.
"Commitment Percentage" means, with respect to each Lender, a
fraction (expressed as a decimal) the numerator of which is the
Commitment of such Lender at such time and the denominator of which is
the Aggregate Committed Amount at such time. The initial Commitment
Percentages are set out on Schedule 1.01(a).
"Commitment Period" means the period from and including the
Effective Date to but excluding the earlier of (i) the Termination
Date, or (ii) the date on which the Commitments terminate in accordance
with the provisions of this Agreement.
"Confidential Information" means information that the Borrower
or a Guarantor furnishes to the Administrative Agent, the Joint
Bookrunners or any Lender in a writing designated as confidential, but
does not include any such information that is or becomes generally
available to the public or that is or becomes available to the
Administrative Agent or the Joint Bookrunners or such Lender from a
source other than the Borrower or a Guarantor that is not, to the best
of the Administrative Agent's, the Joint Bookrunners' or such Lender's
knowledge, acting in violation of a confidentiality agreement with the
Borrower or Guarantor or any other Person.
"Consolidated" refers to the consolidation of accounts in
accordance with Mexican GAAP.
"Consolidated Fixed Charges" means, for any period, the sum
(without duplication) of (a) Consolidated Interest Expense for such
period and (b) to the extent not included in (a) above, payments during
such period in respect of the financing costs of financial derivatives
in the form of equity swaps.
"Consolidated Fixed Charge Coverage Ratio" means, for any
period of four consecutive fiscal quarters, the ratio of (a) EBITDA for
such period to (b) Consolidated Fixed Charges for such period.
"Consolidated Interest Expense" means, for any period, the
total gross interest expense of the Borrower and its consolidated
Subsidiaries allocable to such period in accordance with Mexican GAAP.
"Consolidated Net Debt" means, at any date, the sum (without
duplication) of (a) the aggregate amount of all Debt of the Borrower
and its Subsidiaries at such date, plus (b) to the extent not included
in Debt, the aggregate amount of all derivative financing in the form
of equity swaps outstanding at such date (save to the extent cash
collateralized) minus (c) all Temporary Investments of the Borrower and
its Subsidiaries at such date.
"Consolidated Net Debt / EBITDA Ratio" means, the ratio of (a)
Consolidated Net Debt to (b) EBITDA for the period of four consecutive
fiscal quarters immediately preceding, which shall be calculated based
on the most recently available consolidated financial statements of the
Borrower and its Subsidiaries as of such date.
"Contractual Obligation" means, as to any Person, any
provision of any security issued by such Person or of any indenture,
mortgage, deed of trust, loan agreement or other agreement to which
such Person is a party or by which it or any of its property or assets
is bound.
"Credit Party" means any of the Borrower or the Guarantors.
"Debt" of any Person means, without duplication, (i) all
obligations of such Person for borrowed money, (ii) all obligations of
such Person evidenced by bonds, debentures, notes or other similar
instruments, (iii) all obligations of such Person to pay the deferred
purchase price of property or services, except trade accounts payable
arising in the ordinary course of business, (iv) all obligations of
such Person as lessee under Capital Leases, (v) all Debt of others
secured by a Lien on any asset of such Person, up to the value of such
asset, as recorded in such Person's most recent balance sheet, (vi) all
obligations of such Person with respect to product invoices incurred in
connection with export financing, and (vii) all obligations of such
Person under repurchase agreements for the stock issued by such Person
or another Person. For the avoidance of doubt, Debt does not include
Derivatives. With respect to the Borrower and its subsidiaries, the
aggregate amount of Debt outstanding shall be adjusted by the Value of
Debt Currency Derivatives solely for the purposes of calculating the
Consolidated Net Debt / EBITDA Ratio. If the Value of Debt Currency
Derivatives is a positive mark-to-market valuation for the Borrower and
its subsidiaries, then Debt shall decrease accordingly, and if the
Value of Debt Currency Derivatives is a negative mark-to-market
valuation for the Borrower and its subsidiaries, then Debt shall
increase by the absolute value thereof.
"Debt Currency Derivatives" means derivatives of the Borrower
and its subsidiaries related to currency entered into for the purposes
of hedging exposures under outstanding Debt of the Borrower and its
subsidiaries, including but not limited to cross-currency swaps and
currency forwards.
"Default" means any condition, event or circumstance which,
with the giving of notice or lapse of time or both, would, unless cured
or waived, become an Event of Default.
"Defaulting Lender" has the meaning specified in Section
2.01(d).
"Derivatives" means any type of derivative obligations,
including but not limited to equity forwards, capital hedges,
cross-currency swaps, currency forwards, interest rate swaps and
swaptions.
"Disbursement Date" means the date on which such Loan is made
by the Lenders.
"Disposition" means, with respect to any property, any sale,
lease, sale and leaseback, assignment, conveyance, transfer or other
disposition thereof. The terms "Dispose" and "Disposed of" shall have
correlative meanings.
"Dollar Amount" shall mean, at any time with respect to any
Loan, (a) with respect to Dollars or an amount denominated in Dollars,
such amount and (b) with respect to an amount of any Foreign Currency
or an amount denominated in a Foreign Currency, the equivalent amount
thereof in Dollars as determined by the Administrative Agent on the
basis of the Spot Rate as of the most recent Revaluation Date for the
purchase of Dollars with such Foreign Currency.
"Dollars", "$" and "U.S.$" each means the lawful currency of
the United States.
"EBITDA" means, for any period, the sum for the Borrower and
its Subsidiaries, determined on a consolidated basis of (a) operating
income (utilidad de operacion), (b) cash interest income and (c)
depreciation and amortization expense, in each case determined in
accordance with Mexican GAAP consistently applied for such period. For
the purposes of calculating EBITDA for any period of four consecutive
fiscal quarters (each, a "Reference Period") pursuant to any
determination of the Consolidated Net Debt / EBITDA Ratio (but not
Consolidated Fixed Charge Coverage Ratio), (i) if at any time during
such Reference Period the Borrowers or any of its Subsidiaries shall
have made any Material Disposition, the EBITDA for such Reference
Period shall be reduced by an amount equal to the EBITDA (if positive)
attributable to the property that is the subject of such Material
Disposition for such Reference Period (but when the Material
Disposition is by way of a lease, income received by the Borrower or
any of its Subsidiaries under such lease shall be included in EBITDA
and (ii) if at any time during such Reference Period the Borrower or
any of its Subsidiaries shall have made any Material Acquisition,
EBITDA for such Reference Period shall be calculated after giving pro
forma effect thereto (including the incurrence or assumption of any
Debt) as if such Material Acquisition had occurred on the first day of
such Reference Period. Additionally, if since the beginning of such
Reference Period any Person that subsequently shall have become a
Subsidiary or was merged or consolidated with the Borrower or any of
its Subsidiaries as a result of a Material Acquisition occurring during
such Reference Period shall have made any Disposition or Acquisition of
property that would have required an adjustment pursuant to clause (i)
or (ii) above if made by the Borrower or any of its Subsidiaries during
such Reference Period, EBITDA for such period shall be calculated after
giving pro forma effect thereto as if such Disposition or Acquisition
had occurred on the first day of such Reference Period.
"Effective Date" has the meaning specified in Section 4.01.
"Environmental Action" means any audit procedure, action,
suit, demand, demand letter, claim, notice of non-compliance or
violation, notice of liability or potential liability, investigation,
proceeding, consent order or consent agreement relating in any way to
any Environmental Law, Environmental Permit or Hazardous Materials or
arising from alleged injury or threat of injury to health, safety or
the environment, including (a) by any Governmental Authority for
enforcement, cleanup, removal, response, remedial or other actions or
damages and (b) by any Governmental Authority or any third party for
damages, contribution, indemnification, cost recovery, compensation or
injunctive relief.
"Environmental Law" means any federal, state, local or foreign
statute, law, ordinance, rule, regulation, technical standard (norma
tecnica or norma oficial Mexicana), code, order, judgment, decree or
judicial agency interpretation, policy or guidance relating to
pollution or protection of the environment, health, safety or natural
resources, including those relating to the use, handling,
transportation, treatment, storage, disposal, release or discharge of
Hazardous Materials.
"Environmental Permit" means any permit, approval,
identification number, license or other authorization required under
any Environmental Law.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended, and any successor statute thereto, as interpreted by
the rules and regulations thereunder, all as the same may be in effect
from time to time. References to sections of ERISA shall be construed
also to refer to any successor sections.
"ERISA Affiliate" means an entity, whether or not
incorporated, that is under common control with the Borrower within the
meaning of Section 4001(a)(14) of ERISA, or is a member of a group that
includes the Borrower and that is treated as a single employer under
Sections 414(b) or (c) of the Code.
"Euro" shall mean the single currency of Participating Member
States.
"Euribor" means, in relation to any Loan in Euro:
(a) the applicable Screen Rate; or
(b) (if no Screen Rate is available for the currency or
Interest Period of that Loan) the arithmetic mean of
the rates (rounded upwards to four decimal places) as
supplied to the Administrative Agent at its request
quoted by the Reference Banks to leading banks in the
European interbank market,
as of approximately 11:00 a.m. (New York City time) on the
Quotation Day for the offering of deposits in Euro and for a period comparable
to the Interest Period for that Loan.
"Euribor Business Day" means any day other than a Saturday or
Sunday or other day on which commercial banks in New York City are
authorized or required by law to close that is also a TARGET Day.
"Euribor Loan" means any Loan made or maintained at a rate of
interest calculated with reference to Euribor.
"Event of Default" has the meaning specified in Section 10.01.
"Federal Funds Rate" means, for any relevant day, the
overnight Federal funds rate as published for such day in the Federal
Reserve Statistical Release H.15 (519) or any successor publication,
or, if such rate is not published for any day, the rate for such day
will be the rate set forth in the daily statistical release designated
as the Composite 3:30 p.m. Quotation for U.S. Government Securities, or
any successor publication, published by the Federal Reserve Bank of New
York (including any such successor, the "Composite 3:30 p.m. Quotation"
for such day under the caption "Federal Funds Effective Rate"). If on
any relevant day the appropriate rate for such previous day is not yet
published in either H.15 (519) or the Composite 3:30 p.m. Quotations,
the rate for such day will be the arithmetic mean as determined by the
Administrative Agent of the rates for the last transaction in overnight
Federal funds arranged prior to 9:00 a.m. (New York City time) on that
day by each of three leading brokers of recognized standing of Federal
funds transactions in New York City selected by the Administrative
Agent.
"Federal Reserve Board" means the Board of Governors of the
Federal Reserve System of the United States.
"Fee Letter" means the fee letter entered into by the Borrower
and the Lenders dated as of April 5, 2005.
"Foreign Currency" means each of (a) Euros, (b) Japanese Yen
and (c) Sterling.
"Foreign Financial Institution" means an institution
registered as a foreign financial institution with the Ministry of
Finance in the Mexican Banking and Financial Institutions, Pensions,
Retirement and Foreign Investment Funds Registry for purposes of
Article 195, Section I of the Mexican Income Tax Law.
"Funding Default" means a default by a Lender pursuant to
Section 2.01(d).
"Funding Losses" has the meaning specified in Section 3.06.
"Governmental Authority" means any branch of power or
government or any state, department or other political subdivision
thereof, or any governmental body, agency, authority (including any
central bank or taxing or environmental authority), any entity or
instrumentality (including any court or tribunal) exercising executive,
legislative, judicial, regulatory, administrative or investigative
functions of or pertaining to government.
"Guarantor" has the meaning specified in the preamble hereto.
"Hazardous Materials" means (a) radioactive materials,
asbestos-containing materials, polychlorinated biphenyls, radon gas and
(b) any other chemicals, materials or substances designated, classified
or regulated as hazardous or toxic or as a pollutant or contaminant
under any applicable Environmental Law.
"Holding Company" means, in relation to a company or a
corporation, any other company or corporation in respect of which it
is a Subsidiary.
"Indemnified Party" has the meaning specified in Section
13.05.
"Interest Payment Date" means (i) with respect to any Base
Rate Loan, the last day of each March, June, September and December,
the date of repayment of such Loan and the Termination Date and (ii)
with respect to any LIBOR Loan, and, if applicable, any Euribor Loan,
the last day of each Interest Period for such Loan, the date of
repayment of principal of such Loan and on the Termination Date. If an
Interest Payment Date falls on a date that is not a Business Day, such
Interest Payment Date shall be deemed to be the next succeeding
Business Day, except that in the case of LIBOR Loans or, if applicable,
Euribor Loans, where the next succeeding Business Day falls in the next
succeeding calendar month, then on the immediately preceding Business
Day.
"Interest Period" means, with respect to each Borrowing of
LIBOR Loans, and, if applicable, Euribor Loans, the period (i)
commencing (A) on the date of such Borrowing or conversion of Base Rate
Loans into LIBOR Loans and, if applicable, Euribor Loans, or (B) in the
case of the continuation of LIBOR Loans and, if applicable, Euribor
Loans, for a further Interest Period, on the last day of the
immediately preceding Interest Period and (ii) ending one, two, three
or six months thereafter as stated by the Borrower in the applicable
Notice of Borrowing or Notice of Continuation/Conversion; provided,
however, that:
(1) any Interest Period which would otherwise end on a day
which is not a LIBOR Business Day or, if applicable, a Euribor Business
Day, shall, subject to paragraph (3) below, be extended to the next
succeeding LIBOR Business Day or, if applicable, the next succeeding
Euribor Business Day, unless such LIBOR Business Day or, if applicable,
Euribor Business Day, falls in another calendar month, in which case
such Interest Period shall end on the immediately preceding LIBOR
Business Day or, if applicable, Euribor Business Day;
(2) any Interest Period which begins on the last LIBOR
Business Day or, if applicable, Euribor Business Day, of a calendar
month (or on a day for which there is no numerically corresponding day
in the calendar month at the end of such Interest Period) shall,
subject to paragraph (3) below, end on the last LIBOR Business Day or,
if applicable, Euribor Business Day, of a calendar month;
(3) any Interest Period which would otherwise end after the
last day of the Commitment Period shall end on the last day of the
Commitment Period; and
(4) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date.
"Japanese Yen" means the lawful currency of Japan.
"Joint Bookrunners Fees" has the meaning specified in Section
3.02(b).
"Lender" means each financial institution designated as such
on the signature pages hereof, each Assignee which becomes a Lender
pursuant to Section 13.06(b), each Substitute Lender and each of their
respective successors or assigns.
"Lending Office" means, with respect to any Lender, (a) the
office or offices of such Lender specified as its "Lending Office" or
"Lending Offices" in Schedule 1.01(b) or (b) such other office or
offices of such Lender as it may designate as its Lending Office by
notice to the Borrower and the Administrative Agent.
"LIBOR" means, in relation to any Loan (other than a Loan
denominated in Euros):
(a) the applicable Screen Rate; or
(b) (if no Screen Rate is available for the currency or
Interest Period of that Loan) the arithmetic mean of
the rates (rounded upwards to four decimal places) as
supplied to the Administrative Agent at its request
quoted by the Reference Banks to leading banks in the
London interbank market,
as of approximately 11:00 a.m. (New York City time) on the Quotation
Day for the offering of deposits in the currency of that Loan and for a
period comparable to the Interest Period for that Loan.
"LIBOR Business Day" means any Business Day on which
commercial banks are open in London for the transaction of
international business, including dealings in Dollar deposits in the
international interbank markets.
"LIBOR Loan" means any Loan made or maintained at a rate of
interest calculated with reference to LIBOR.
"Lien" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect
of such asset. The Borrower or any Subsidiary of the Borrower shall be
deemed to own, subject to a Lien, any asset that it has acquired or
holds subject to the interest of a vendor or lessor under any
conditional sale agreement, Capital Lease or other title retention
lease relating to such asset, or any account receivable transferred by
it with recourse (including any such transfer subject to a holdback or
similar arrangement that effectively imposes the risk of collectability
on the transferor).
"Loans" has the meaning specified in Section 2.01(a) hereof.
"Mandatory Cost" means the percentage rate per annum
calculated by the Administrative Agent in accordance with Exhibit G.
"Material Acquisition" any (a) acquisition of property or
series of related acquisitions of property that constitutes assets
comprising all or substantially all of an operating unit, division or
line of business or (b) acquisition of or other investment in the
Capital Stock of any Subsidiary or any Person which becomes a
Subsidiary or is merged or consolidated with the Borrower or any of its
Subsidiaries, in each case, which involves the payment of consideration
by the Borrower and its Subsidiaries in excess of U.S.$25,000,000 (or
the equivalent in other currencies).
"Material Adverse Effect" means a material adverse effect on
(a) the business, condition (financial or otherwise), operations,
performance, properties or prospects of the Borrower and its
Subsidiaries taken as a whole, (b) the validity or enforceability of
this Agreement or any of the Notes or the rights and remedies of the
Administrative Agent or any Lender under this Agreement or any of the
Notes or (c) the ability of the Borrower and/or the Guarantors to
perform their Obligations under this Agreement, the Notes, the Fee
Letter, any Notice of Borrowings, any certificates, waivers, or any
other agreement delivered pursuant to this Agreement.
"Material Debt" means Debt (other than the Loans) of the
Borrower and/or one or more of its Subsidiaries, arising in one or more
related or unrelated transactions, in an aggregate principal amount
outstanding exceeding U.S.$50,000,000 (or the equivalent thereof in
other currencies).
"Material Disposition" means any Disposition of property or
series of related Dispositions of property that yields gross proceeds
to the Borrower or any of its Subsidiaries in excess of U.S.$25,000,000
(or the equivalent in other currencies).
"Material Subsidiary" means, at any date, (a) each Subsidiary
of the Borrower (if any) (i) the assets of which, together with those
of its Subsidiaries, on a consolidated basis, without duplication,
constitute 5% or more of the consolidated assets of the Borrower and
its Subsidiaries as of the end of the then most recently ended fiscal
quarter for which quarterly financial statements have been prepared or
(ii) the operating profit of which, together with that of its
Subsidiaries, on a consolidated basis, without duplication, constitutes
5% or more of the consolidated operating profit of the Borrower and its
Subsidiaries for the then most recently ended fiscal quarter for which
quarterly financial statements have been prepared and (b) each
Guarantor.
"Measurement Date" means any of the dates specified in Section
7.14.
"Mexican GAAP" means, generally accepted accounting principles
in Mexico as in effect from time to time, except that for purposes of
Section 8.01, Mexican GAAP shall be determined on the basis of such
principles in effect on the date hereof and consistent with those used
in the preparation of the most recent audited financial statements
referred to in Section 7.01. In the event that any change in Mexican
GAAP shall occur and such change results in a change in the method of
calculation of financial covenants, standards or terms in this
Agreement, then the Borrower and the Administrative Agent agree to
enter into negotiations in order to amend such provisions of this
Agreement so as to equitably reflect such change in Mexican GAAP with
the desired result that the criteria for evaluating the Borrower's
financial condition shall be the same after such change as if such
change had not been made. Until such time as such an amendment shall
have been executed and delivered by the Borrower, the Administrative
Agent and the Required Lenders, all financial covenants, standards and
terms in this Agreement shall continue to be calculated or construed as
if such change in Mexican GAAP had not occurred.
"Mexico" means the United Mexican States.
"Ministry of Finance" means the Ministry of Finance and
Public Credit of Mexico.
"Notice of Borrowing" has the meaning specified in Section
2.01(c).
"Notice of Extension/Conversion" has the meaning specified in
Section 2.01(e).
"Note" means a promissory note of the Borrower in
substantially the form of Exhibit A, evidencing the obligation of the
Borrower to repay the Loans made by a Lender.
"Obligations" means, (a) with respect to the Borrower, all of
its indebtedness, obligations and liabilities to the Lenders, the Joint
Bookrunners and the Administrative Agent now or in the future existing
under or in connection with the Transaction Documents, whether direct
or indirect, absolute or contingent, due or to become due, and (b) with
respect to each Guarantor, all of its indebtedness, obligations and
liabilities to the Lenders, the Joint Bookrunners and the
Administrative Agent now or in the future existing under or in
connection with the Transaction Documents, in each case whether direct
or indirect, absolute or contingent, due or to become due.
"Obligors" means the Borrower and each Guarantor.
"Other Taxes" means any present or future stamp or documentary
taxes or any other excise or property taxes, charges, imposts, duties,
fees, or similar levies which arise from any payment made hereunder or
under the Notes or from the execution, delivery, registration,
performance or enforcement of, or otherwise with respect to, this
Agreement or any other Transaction Document and which are imposed,
levied, collected or withheld by any Governmental Authority.
"Participant" has the meaning specified in Section 13.06(d).
"Participating Member State" means any member state of the
European Union that adopts or has adopted the euro as its lawful
currency in accordance with legislation of the European Union relating
to Economic and Monetary Union.
"Pension Plan" means a "pension plan", as such term is defined
in Section 3(2) of ERISA, which is subject to Title IV of ERISA (other
than a multiemployer plan as defined in Section 4001(a)(3) of ERISA),
and to which any Credit Party or any of its ERISA Affiliates has any
liability.
"Permitted Liens" has the meaning specified in Section 8.02.
"Person" means an individual, partnership, corporation,
business trust, joint stock company, limited liability company, trust,
unincorporated association, joint venture or other business entity or
Governmental Authority, whether or not having a separate legal
personality.
"Prime Rate" means the average of the rate of interest
publicly announced by each of the Reference Banks from time to time as
its Prime Rate in New York City, the Prime Rate to change as and when
such designated rate changes. The Prime Rate is not intended to be the
lowest rate of interest charged by the Administrative Agent or any
Lender in connection with extensions of credit to debtors of any class,
or generally.
"Process Agent" has the meaning specified in Section 13.12(a).
"Qualified Receivables Transaction" means any transaction or
series of transactions that may be entered into by the Borrower or any
Subsidiary pursuant to which the Borrower or any Subsidiary may sell,
convey or otherwise transfer to a Special Purpose Vehicle (in the case
of a transfer by the Borrower or any other Seller) and any other person
(in the case of a transfer by a Special Purpose Vehicle), or may grant
a security interest in, any Receivables Program Assets (whether now
existing or arising in the future); provided that:
(a) no portion of the indebtedness or any other obligations
(contingent or otherwise) of a Special Purpose Vehicle (i) is
guaranteed by the Borrower or any other Seller or (ii) is recourse to
or obligates the Borrower or any other Seller in any way such that the
requirements for off balance sheet treatment under Financial Accounting
Standards Bulletin 140 are not satisfied; and
(b) the Borrower and the other Sellers do not have any
obligation to maintain or preserve the financial condition of a Special
Purpose Vehicle or cause such entity to achieve certain levels of
operating results.
"Quotation Day" means, in relation to any period in which an
interest rate is to be determined:
(a) (if the currency is Sterling) the first day of that
period;
(b) (if the currency is Euro) two TARGET Days before the
first day of that period; or
(c) (for any other currency) two Business Days before the
first day of that period.
"Receivables" means all rights of the Borrower or any other
Seller to payments (whether constituting accounts, chattel paper,
instruments, general intangibles or otherwise, and including the right
to payment of any interest or finance charges), which rights are
identified in the accounting records of the Borrower or such Seller as
accounts receivable.
"Receivables Documents" means (a) a receivables purchase
agreement, pooling and servicing agreement, credit agreement,
agreements to acquire undivided interests or other agreement to
transfer, or create a security interest in, Receivables Program Assets,
in each case as amended, modified, supplemented or restated and in
effect from time to time entered into by the Borrower, another Seller
and/or a Special Purpose Vehicle, and (b) each other instrument,
agreement and other document entered into by the Borrower, any other
Seller or a Special Purpose Vehicle relating to the transactions
contemplated by the items referred to in clause (a) above, in each case
as amended, modified, supplemented or restated and in effect from time
to time.
"Receivables Program Assets" means (a) all Receivables which
are described as being transferred by the Borrower, another Seller or a
Special Purpose Vehicle pursuant to the Receivables Documents, (b) all
Receivables Related Assets in respect of such Receivables, and (c) all
collections (including recoveries) and other proceeds of the assets
described in the foregoing clauses.
"Receivables Program Obligations" means (a) notes, trust
certificates, undivided interests, partnership interests or other
interests representing the right to be paid a specified principal
amount from the Receivables Program Assets and (b) related obligations
of the Borrower, a Subsidiary of the Borrower or a Special Purpose
Vehicle (including, without limitation, rights in respect of interest
or yield hedging obligations, breach of warranty claims and expense
reimbursement and indemnity provisions).
"Receivables Related Assets" means with respect to any
"Receivables" (i) any rights arising under the documentation governing
or relating to such Receivables (including rights in respect of liens
securing such Receivables), (ii) any proceeds of such Receivables,
(iii) other assets which are customarily transferred or in respect of
which security interests are customarily granted in connection with
asset securitization transactions involving accounts receivable.
"Reference Banks" means two banks in the London interbank
market, initially Barclays Bank PLC, and Citibank, N.A..
"Regulation T, U, or X" means Regulation T, U, or X,
respectively, of the Board of Governors of the Federal Reserve System
as from time to time in effect and any successor to all or a portion
thereof.
"Required Lenders" means, at any time, Lenders (other than
Defaulting Lenders) whose Total Exposures, when aggregated, equal or
exceed 50.01% of the Aggregate Committed Amount (or, if the Commitments
shall have terminated, the Aggregate Exposure) minus the Total Exposure
of any Defaulting Lender at such time.
"Requirement of Law" means, as to any Person, any law,
ordinance, rule, regulation or requirement of any Governmental
Authority, in each case applicable to or binding upon such Person or
any of its property or to which such Person or any of its property is
subject.
"Responsible Officer" of any Person means the Chief Financial
Officer, the Corporate Planning and Finance Director, the Finance
Director or the Comptroller of such Person.
"Revaluation Date" means each of the following: (a) in
connection with the making of any Loan, the Business Day which is the
earliest of the date such Loan is made or the date the rate is set, as
applicable; (b) in connection with any extension or conversion or
continuation of an existing Loan, the Business Day that is the earlier
of the date such Loan is extended, converted or continued, or the date
the rate is set, as applicable, in connection with any extension,
conversion or continuation; (c) the date of any reduction of the
Aggregate Committed Amount; and (d) such additional dates as the
Administrative Agent or the Required Lenders shall deem necessary.
"Screen Rate" means:
(a) in relation to LIBOR, the British Bankers Association
Interest Settlement Rate for the relevant currency
and period; and
(b) in relation to Euribor, the percentage rate per annum
determined by the Banking Federation of the European
Union for the relevant period,
displayed on the appropriate page of the Reuters screen. If
the agreed page is replaced or service ceases to be available, the
Administrative Agent may specify another page or service displaying the
appropriate rate after consultation with the Borrower and the Lenders.
"Seller" means the Borrower and any Subsidiary or other
affiliate of the Borrower (other than a Subsidiary or affiliate that is
a Special Purpose Vehicle) which is a party to a Receivables Document.
"Special Purpose Vehicle" means a trust, partnership or other
special purpose person established by the Borrower and/or its
Subsidiaries to implement a Qualified Receivables Transaction.
"Spot Rate" means, on any date, with respect to any Foreign
Currency, the rate quoted by the Administrative Agent as the spot rate
for the purchase by the Administrative Agent of such Foreign Currency
with Dollars through its principal foreign exchange trading office at
approximately 11:00 a.m. (New York City time) on the date two Business
Days prior to the date as of which the foreign exchange computation is
made.
"Sterling" means the lawful currency of the United Kingdom.
"Subsidiary" means with respect to any Person, any
corporation, partnership, joint venture, limited liability company,
trust, estate or other entity of which (or in which) more than 50% of
(a) in the case of a corporation, the issued and outstanding capital
stock having ordinary voting power to elect a majority of the board of
directors of such corporation (irrespective of whether at the time
capital stock of any other class or classes of such corporation shall
or might have voting power upon the occurrence of any contingency not
in the control of such Person), (b) in the case of a limited liability
company, partnership or joint venture, the interest in the capital or
profits of such limited liability company, partnership or joint venture
or (c) in the case of a trust or estate, the beneficial interest in
such trust or estate, is at the time directly or indirectly owned or
controlled by (X) such Person, (Y) such Person and one or more of its
other Subsidiaries or (Z) one or more of such Person's other
Subsidiaries. For purposes of determining whether a trust formed in
connection with a Qualified Receivables Transaction is a Subsidiary,
notes, trust certificates, undivided interests, partnership interests
or other interests of the type described in clause (a) of the
definition of Receivables Program Obligations shall be counted as
beneficial interests in such trust.
"Substitute Lender" means a commercial bank or other financial
institution, acceptable to the Borrower, the Lenders and the
Administrative Agent, each in its sole discretion, and approved by the
Joint Bookrunners (including such a bank or financial institution that
is already a Lender hereunder), which assumes all or a portion of the
Commitment of a Lender pursuant to the terms of this Agreement.
"TARGET" means Trans-European Automated Real-time Gross
Settlement Express Transfer payment system.
"TARGET Day" means any day on which TARGET is open for the
settlement of payments in Euro.
"Taxes" means any and all present or future income, stamp,
sales or other taxes, levies, imposts, duties, deductions, fees,
charges or withholdings, and all liabilities with respect thereto
collected, withheld or assessed by any Governmental Authority,
excluding, (a) in the case of each Lender the Administrative Agent, and
any Tax Related Persons, such taxes (including income taxes or
franchise taxes) as are imposed on or measured by its net income or
capital by the jurisdiction (or any political subdivision thereof)
under the laws of which it is organized or maintains a Lending Office
or its principal office or performs its functions as Administrative
Agent or as are imposed on such Lender or the Administrative Agent or
any of their Tax Related Persons (as the case may be) as a result of a
present or former connection between the Lender, the Administrative
Agent, or such Tax Related Person and the jurisdiction of the
Governmental Authority imposing such tax or any political subdivision
or taxing authority thereof or therein (other than any such connection
arising solely from the Lender or such Administrative Agent having
executed, delivered or performed its obligations or received a payment
under, or enforced, the Transaction Documents) and (b) any taxes,
levies, imposts, deductions, charges or withholdings to the extent
imposed by reason of any Lender's or Administrative Agent's failure to
(i) register as a Foreign Financial Institution with the Ministry of
Finance and (ii) be a resident (or have a principal office which is a
resident, if such Lender lends through a branch or agency) for tax
purposes of a jurisdiction with which Mexico has in effect a treaty for
the avoidance of double taxation (but only in respect of those taxes
payable in excess of taxes that would have been payable had such Lender
complied with those conditions).
"Tax Related Person" means any Person whose income is
realized through, or determined by reference to, the Administrative
Agent or a Lender[; provided that no Lender shall be deemed a Tax
Related Person of the Administrative Agent, and the Administrative
Agent shall not be deemed a Tax Related Person of any Lender].
"Temporary Investments" means, at any date, all amounts that
would, in conformity with Mexican GAAP consistently applied, be set
forth opposite the caption "cash and cash equivalent" ("efectivo y
equivalentes de efectivo") or "temporary investments" ("inversiones
temporales") on a consolidated balance sheet of the Borrower at such
date.
"Term Credit Agreement" has the meaning specified in the
recitals hereto.
"Termination Date" means the date which is the earliest of (a)
the date five years following the Effective Date, or (b) if no Loans
are outstanding, the date the Commitments are terminated in accordance
with this Agreement.
"Total Exposure" means at any time, as to any Lender, the
amount of its Commitment at such time, or, if the Commitments shall
have terminated, its Total Outstandings at such time.
"Total Outstandings" means at any time, as to any Lender, the
Dollar Amount of the sum of the aggregate outstanding principal amount
of such Lender's Loans.
"Transaction Documents" means a collective reference to this
Credit Agreement, the Notes, any Assignment and Assumption Agreement,
the Fee Letter, and all other related agreements and documents issued
or delivered hereunder or thereunder or pursuant hereto or thereto.
"United States" means the United States of America, including
the States and the District of Columbia, but excluding its territories
and possessions.
"Up-Front Fee" has the meaning specified in Section 3.02(c).
"Utilization" means, for any Utilization Period, the
percentage obtained by dividing the Average Outstanding Loans by the
Average Aggregate Committed Amount.
"Utilization Period" means each calendar quarter, except that
the initial Utilization Period shall commence on the Effective Date and
end on June 30, 2005, and the final Utilization Period shall end on the
Termination Date.
"Value of Debt Currency Derivatives" means, on any given date,
the aggregate mark-to-market value of Debt Currency Derivatives,
expressed as a positive number (if, on a mark-to-market basis, such
aggregate amount reflects a net amount owed to the Borrower and its
subsidiaries) or as a negative number (if, on a mark-to-market basis,
such aggregate amount reflects a net amount owed by the Borrower and
its subsidiaries).
"Welfare Plan" means a "welfare plan", as such term is
defined in Section 3(1) of ERISA.
1.02 Other Definitional Provisions.
(a) The terms "including" and "include" are not limiting and
mean "including but not limited to" and "include but are not limited
to".
(b) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement refer to this Agreement as a
whole and not to any particular provision of this Agreement, and
Article, Section, paragraph, Schedule and Exhibit references are to
this Agreement unless otherwise specified.
(c) The meanings given to terms defined herein are equally
applicable to both the singular and plural forms of such terms.
(d) In this Agreement, in the computation of periods of time
from a specified date to a later specified date, the word "from" means
"from and including" and the words "to" and "until" each means "to but
excluding". Periods of days referred to in this Agreement shall be
counted in calendar days unless Business Days, LIBOR Business Days,
Euribor Business Days or TARGET Days are expressly prescribed.
(e) The captions and headings of this Agreement are for
convenience of reference only and shall not affect the interpretation
of this Agreement.
1.03 Accounting Terms and Determinations. All accounting and
financing terms not specifically defined herein shall be construed in
accordance with Mexican GAAP.
ARTICLE II
THE LOAN FACILITIES
-------------------
2.01 Revolving Loans.
(a) Commitment. During the Commitment Period, subject to the terms and
conditions hereof, each Lender, severally and not jointly with any other
Lender, agrees to make revolving credit loans in Dollars and/or in Foreign
Currencies (as specified by the Borrower) (the "Loans") to the Borrower from
time to time in an aggregate principal Dollar Amount at any one time
outstanding not to exceed such Lender's Commitment; provided that (i) with
regard to the Lenders collectively, the aggregate principal amount of Loans
outstanding at any one time shall not exceed the Aggregate Committed Amount,
and (ii) with regard to each Lender individually, the aggregate principal
Dollar Amount of such Lender's Commitment Percentage of all the Loans
outstanding at any time shall not exceed the Commitment of such Lender.
Loans may consist of Base Rate Loans, LIBOR Loans, Euribor Loans, or a
combination thereof, as the Borrower may request, and may be repaid, prepaid
and reborrowed in accordance with the provisions hereof; provided that (A)
Loans denominated in Japanese Yen or Sterling shall consist solely of LIBOR
Loans, subject to Section 3.07 and Section 3.09, (B) Loans denominated in
Euro shall consist solely of Euribor Loans, subject to Section 3.07 and
Section 3.09, and (C) if any Loan shall be made on the Effective Date or
within three (3) Business Days thereafter such Loan may be a LIBOR Loan or
Euribor Loan only if the Borrower delivers to the Administrative Agent a
funding indemnity letter in form and substance satisfactory to the
Administrative Agent.
(b) Loans and Borrowings. Each Loan shall be made as part of a
Borrowing consisting of Loans made by the Lenders ratably in accordance with
their Commitment Percentage. The failure of any Lender to make any Loan
required to be made by it shall not relieve any other Lender of its
obligations hereunder; provided that the Commitments of the Lenders are
several and no Lender shall be responsible for any other Lender's failure to
make Loans as required.
(c) Revolving Loan Borrowings.
(i) Requests for Borrowings. (A) To request a Borrowing, the
Borrower shall notify the Administrative Agent of such request by telephone,
not later than 12:00 p.m., New York City time, (1) in the case of a request
for a Base Rate Loan denominated in Dollars, on the Business Day prior to
the day the Borrower designates therein as the Disbursement Date, and (2) in
the case of a request for a LIBOR Loan or Euribor Loan, on the fourth LIBOR
Business Day or Euribor Business Day, as applicable, prior to the
Disbursement Date. Each such telephonic Borrowing request shall be
irrevocable and shall be confirmed promptly by hand delivery or facsimile to
the Administrative Agent of a written notice (the "Notice of Borrowing") in
the form attached as Exhibit B approved by the Administrative Agent and
signed by a duly authorized representative of the Borrower. Each such
telephonic request and written Notice of Borrowing shall specify the
following information in compliance with this Section 2.01:
(1) that a Loan is requested;
(2) the requested Disbursement Date, which shall be a
Business Day;
(3) the currency and the aggregate principal amount to
be borrowed; and
(4) whether the Borrowing shall be composed of Base
Rate Loans, LIBOR Loans, Euribor Loans, or a
combination thereof, and if LIBOR Loans or Euribor
Loans are requested, the Interest Period(s)
therefor.
(B) If the Borrower shall fail to specify in any such
Notice of Borrowing (i) an applicable Interest Period in
the case of a LIBOR Loan or Euribor Loan, then such notice
shall be deemed to be a request for an Interest Period of
one (1) month, (ii) the type of Loan requested, then such
notice shall be deemed to be a request for a LIBOR Loan
hereunder, provided, however, that if the notice requests
Euro, then such notice shall be deemed to be a request for
a Euribor Loan hereunder, or (iii) the currency requested,
then such notice shall be deemed to be a request for a
Loan in Dollars.
(C) Not later than 1:00 p.m. New York City time on
the Business Day on which the Notice of Borrowing is
received, the Administrative Agent shall promptly advise
each Lender of the details thereof and shall advise each
Lender of the amount of such Lender's Loan to be made as
part of the requested Borrowing.
(ii) Minimum Amounts. Each Loan shall be in a minimum aggregate
principal Dollar Amount of $5,000,000, in the case of LIBOR Loans or Euribor
Loans, or $1,000,000 (or the remaining Aggregate Committed Amount, if less),
in the case of Base Rate Loans, and integral multiples of $1,000,000 in
excess thereof.
(iii) Exchange Rate. For purposes of determining availability
hereunder, the rate of exchange for any Foreign Currency shall be the Spot
Rate.
(d) Funding of Borrowings. Each Lender shall make each Loan to be made
by it hereunder on the Disbursement Date by wire transfer of immediately
available funds by 1:00 p.m., New York City time, to the account held by the
Administrative Agent for such purpose most recently designated by it by
notice to the Lenders. The Administrative Agent will make such Loans
available to the Borrower by promptly crediting on the same day the amounts
so received, in like funds, to the account designated by the Borrower in the
applicable Notice of Borrowing (the "Funding Account"). Unless the
Administrative Agent shall have received notice from a Lender, prior to the
time of any Borrowing, that such Lender will not make available to the
Administrative Agent such Lender's share of such Borrowing, the
Administrative Agent may, but shall not be required to, assume that such
Lender has made such share available on such date in accordance with Section
2.01(c) and may in its sole discretion, but shall not be required to, in
reliance upon such assumption, make available to the Borrower a
corresponding amount. If any Lender either does not make its share of the
applicable Borrowing available to the Administrative Agent or delays in
doing so past 4:00 p.m., New York City time, on the Disbursement Date (such
Lender (until it makes such share available) hereinafter referred to as a
"Defaulting Lender"), then the Administrative Agent shall immediately notify
the Borrower of such default. If the Administrative Agent has, in its sole
discretion, made available to the Borrower an amount corresponding to such
Defaulting Lender's share of the Borrowing, then the Defaulting Lender and
the Borrower jointly and severally agree to pay to the Administrative Agent
forthwith on demand such corresponding amount with interest thereon, on each
day from and including the date such amount is made available to the
Borrower to but excluding the date of payment to the Administrative Agent,
at:
(i) in the case of the Defaulting Lender, the Federal Funds
Rate; or
(ii) in the case of the Borrower, the interest rate applicable to
Base Rate Loans.
If, with respect to the immediately preceding sentence, the Borrower pays
such amount to the Administrative Agent, then the Defaulting Lender shall
indemnify and hold harmless the Borrower from and against such amount, and
if such Defaulting Lender pays such amount to the Administrative Agent, then
such amount shall constitute such Defaulting Lender's Loan included in such
Borrowing. If the Administrative Agent, in its discretion, does not make
available to the Borrower an amount corresponding to the Defaulting Lender's
share of the Borrowing then (x) the Defaulting Lender shall indemnify and
hold harmless the Borrower from and against such amount as well as any and
all losses, liabilities (including liabilities for penalties), actions,
suits, judgments, demands, costs, and expenses (including reasonable fees
and disbursements for counsel including allocated cost of internal counsel)
resulting from any failure on the part of the Defaulting Lender to provide,
or from any delay in providing, the Administrative Agent with such
Defaulting Lender's pro rata share of the Borrowing, but no Lender shall be
so liable for any such failure on the part of or caused by any other Lender
or the Administrative Agent or the Borrower, and (y) such share of the
applicable Borrowing that was not made available shall (until made
available) be disregarded for purposes of calculating the Commitment Fee
pursuant to Section 3.02 and in the event such share has not been
disregarded for such purposes, any amount paid by the Borrower in respect of
such share shall be reimbursed to the Borrower by the applicable Defaulting
Lender with interest thereon at the Federal Funds Rate for each day from and
including the date such share of the Commitment Fee was paid by the Borrower
to but excluding the date of reimbursement by the Defaulting Lender. The
Administrative Agent, upon notice by the Borrower that such reimbursement is
due from the applicable Defaulting Lender, shall notify such Defaulting
Lender of the amount of the reimbursement due, including interest thereon,
and shall forward such amount to the Borrower upon receipt from the
Defaulting Lender. The Administrative Agent shall not, however, be liable to
the Borrower for any failure by any Defaulting Lender to reimburse the
Borrower for any amounts in respect of such Commitment Fee.
(e) Extension and Conversion. The Borrower shall have the option, on
any Business Day, to extend existing Loans into a subsequent permissible
Interest Period or to convert Loans denominated in Dollars into Loans of
another interest rate type or to convert Loans in Foreign Currencies into
Dollars or to convert Loans in Dollars into Foreign Currencies; provided,
however, that (i) Loans in Foreign Currencies may be converted into Dollars
and Loans in Dollars may be converted into Foreign Currencies only on the
last day of the Interest Period applicable thereto, (ii) except as provided
in Section 3.06, LIBOR Loans and Euribor Loans may be converted into Base
Rate Loans only on the last day of the Interest Period applicable thereto
unless the Borrower agrees to pay all Funding Losses, (iii) LIBOR Loans and
Euribor Loans may be extended, and Base Rate Loans may be converted into
LIBOR Loans or Euribor Loans, only if the conditions in Section 4.02 have
been satisfied, (iv) Loans extended as, or converted into, LIBOR Loans or
Euribor Loans shall be subject to the terms of the definition of "Interest
Period" set forth in Section 1.01 and shall be in such minimum amounts as
provided in Section 2.01(c)(ii), and (v) any request for extension or
conversion of a LIBOR Loan or Euribor Loan that shall fail to specify an
Interest Period shall be deemed to be a request for an Interest Period of
one month. Each such extension or conversion shall be effected by the
Borrower by giving a written notice (or telephone notice promptly confirmed
in writing) (a "Notice of Extension/Conversion") to the Administrative Agent
prior to 10:00 a.m., New York City time, on the LIBOR Business Day of or the
Euribor Business Day of, as applicable, in the case of the conversion of a
LIBOR Loan or Euribor Loan into a Base Rate Loan, and on the third LIBOR
Business Day prior to or the third Euribor Business Day prior to, as
applicable, in the case of the extension of a LIBOR Loan as, or conversion
of a Base Rate Loan into, a LIBOR Loan or the extension of a Euribor Loan
as, or conversion of a Base Rate Loan into, a Euribor Loan, the date of the
proposed extension or conversion, substantially in the form of Exhibit C
hereto, specifying (A) the date of the proposed extension or conversion, (B)
the Loans to be so extended or converted, (C) the types of Loans into which
such Loans are to be converted, (D) if appropriate, the applicable Interest
Periods with respect thereto, and (E) the currency of such Loans. Each
Notice of Extension/Conversion shall be irrevocable and shall constitute a
representation and warranty by the Borrower of the matters specified in
Sections 4.02(a) through (d). So long as there is no Default or Event of
Default, in the event the Borrower does not request extension or conversion
of any LIBOR Loan or Euribor Loan in accordance with this Section, or any
such conversion or extension is not required by this Section, then such
LIBOR Loan or Euribor Loan shall be continued as a Base Rate Loan at the end
of each Interest Period applicable thereto, until the Borrower selects an
alternate Interest Period or converts such Loans to LIBOR Loans or Euribor
Loans. It is hereby understood and agreed that such failure by the Borrower
to request such extension or conversion resulting in the automatic
conversion of a LIBOR Loan or a Euribor Loan into a Base Rate Loan shall
also constitute a representation and warranty by the Borrower of the matters
specified in Sections 4.02(a) through (d). In the event any LIBOR Loans or
Euribor Loans are not permitted to be converted into another LIBOR Loan or
Euribor Loan hereunder, such LIBOR Loans or Euribor Loans shall
automatically be converted to Base Rate Loans at the end of the applicable
Interest Period with respect thereto. The Administrative Agent shall give
each Lender notice as promptly as practicable of any such proposed extension
or conversion affecting any Loan.
(f) Repayment. The principal amount of all Loans shall be due and
payable in full on the Termination Date in the same currency denomination as
the Loan was made or if different converted into and outstanding.
(g) Voluntary Prepayment. Loans may be repaid in whole or in part
without premium or penalty in the same currency denomination as the Loan was
made or if different converted into and outstanding; provided that (i) Loans
may be prepaid only upon five (5) Business Days' prior written notice to the
Administrative Agent, (ii) prepayments of LIBOR Loans or Euribor Loans must
be accompanied by payment of any Funding Losses under Section 3.06, and
(iii) partial prepayments shall be in minimum principal Dollar Amounts of
$10,000,000.
(h) Mandatory Prepayment. If on any date the Administrative Agent
notifies the Borrower that the Aggregate Exposure (determined as of the most
recent Revaluation Date) shall exceed 103% of the Aggregate Committed
Amount, the Borrower shall as soon as practicable, but in any event no later
than five Business Days after receipt of such notice, prepay the outstanding
principal amount of any Loans owing by the Borrower in an aggregate amount
sufficient to reduce such sum to an amount not to exceed 100% of the
Aggregate Committed Amount on such date together with any interest accrued
to the date of such prepayment on the aggregate principal amount of the
Borrowing prepaid. The Administrative Agent shall give prompt notice of any
prepayment required under this Section 2.01(h) to the Borrower, and shall
provide prompt notice to the Borrower of any such notice of required
prepayment the Administrative Agent receives from any Lender. Any such
prepayment shall be allocated at the Lender's discretion.
(i) Revolving Notes. Each Lender's Commitment Percentage of the Loans
shall be evidenced by a duly executed revolving note in favor of such Lender
in the form of Exhibit A attached hereto.
(j) Maximum Number of LIBOR Loans and Euribor Loans. The Borrower will
be limited to a maximum number of ten (10) LIBOR Loans and Euribor Loans
outstanding at any time. For purposes hereof, LIBOR Loans and Euribor Loans
with separate or different Interest Periods will be considered as separate
LIBOR Loans, or, as applicable, Euribor Loans even if their Interest Periods
expire on the same date.
2.02 Interest.
(a) Base Rate Loans. Each Base Rate Loan shall bear interest at a rate
per annum equal to the Base Rate plus the Applicable Margin.
(b) LIBOR Loans. (i) Each LIBOR Loan (other than LIBOR Loans
denominated in Sterling) shall bear interest at a rate per annum equal to
LIBOR plus the Applicable Margin. (ii) Each LIBOR Loan denominated in
Sterling shall bear interest at a rate per annum equal to LIBOR plus the
Applicable Margin, plus Mandatory Costs, if any.
(c) Euribor Loans. Each Euribor Loan shall bear interest at a rate per
annum equal to Euribor plus the Applicable Margin, plus Mandatory Costs, if
any.
(d) Default Interest. Notwithstanding the foregoing, if any principal
of, or interest on, any Loan or any fee or other amount payable by the
Borrower hereunder is not paid when due, whether at stated maturity, upon
acceleration, by mandatory prepayment or otherwise, such overdue amount
shall bear interest, after as well as before judgment, at a rate per annum
equal to (i) in the case of overdue principal of any Loan, 2% plus the rate
otherwise applicable to such Loan as provided above or (ii) in the case of
any other amount, 2% plus the rate applicable to Base Rate Loans as provided
in Section 2.02(a).
(e) Payment of Interest. Accrued interest on each Loan shall be payable
in arrears on each Interest Payment Date for such Loan and upon termination
of the Commitments; provided that (i) in the event of any repayment or
prepayment of any Loan, accrued interest on the principal amount repaid or
prepaid shall be payable on the date of such repayment or prepayment and
(ii) in the event of any conversion of any LIBOR Loan or Euribor Loan prior
to the end of the Interest Period therefore, accrued interest on such Loan
shall be payable on the effective date of such conversion. Interest with
respect to each Loan shall be paid in the currency in which such Loan is
denominated.
(f) Computation. All interest hereunder shall be computed on the basis
of a year of 360 days, except that (i) interest computed by reference to the
Base Rate at times when the Base Rate is based on the Prime Rate shall be
computed on the basis of a year of 365 days (or 366 days in a leap year) and
(ii) where the interest is to accrue in respect of any amount denominated in
Sterling, interest shall be computed on the basis of a year of 365 days, and
in each case shall be payable for the actual number of days elapsed
(including the first day but excluding the last day). The applicable Base
Rate, LIBOR or Euribor shall be determined by the Administrative Agent, and
such determination shall be conclusive absent manifest error.
ARTICLE III
TERMINATION AND REDUCTION OF
COMMITMENTS; FEES, TAXES, PAYMENT PROVISIONS
--------------------------------------------
3.01 Termination or Reduction of Commitments.
(a) Mandatory Termination. The Commitments shall terminate on the
Termination Date.
(b) Voluntary Termination. Upon at least five Business Days' notice to
the Administrative Agent and the Joint Bookrunners, but no sooner than six
months after the Effective Date, the Borrower may terminate the existing
Commitments; provided, however, that the existing Commitments may not be
terminated so long as (i) any Loan is outstanding or (ii) any interest, fee
or expenses remain unpaid.
3.02 Fees.
(a) Commitment Fee. The Borrower agrees to pay to the Administrative
Agent, quarterly in arrears for each Utilization Period, for the account of
the Lenders ratably in accordance with their Commitment Percentage a
commitment fee (the "Commitment Fee") (i) if the Utilization is greater than
or equal to 50%, at the rate of 30% of the Applicable Margin per annum for
the relevant Utilization Period on the average Available Commitments for the
Utilization Period or (ii) if the Utilization is less than 50%, at the rate
of 40% of the Applicable Margin per annum for the relevant Utilization
Period on the average Available Commitments for the Utilization Period. The
Commitment Fee shall accrue from the Effective Date to the Termination Date
and shall be payable in arrears on the last day in each of March, June,
September, and December and on the Termination Date provided that if any day
is not a Business Day, then the Commitment Fee shall be payable on the next
succeeding Business Day.
(b) Joint Bookrunners Fees. The Borrower will pay to the Joint
Bookrunners, for the sole account of the Joint Bookrunners, the arrangement
fees (the "Joint Bookrunners Fees") and other fees in the amounts and at the
times agreed to by the Joint Bookrunners and the Borrower in the Fee Letter.
(c) Up-Front Fee. The Borrower will pay to the Administrative Agent,
for the account of the Lenders, an up-front fee (the "Up-front Fee") as
agreed to by the Borrower and the Joint Bookrunners.
3.03 Computation of Fees. All fees calculated on a per annum basis
shall be computed on the basis of a year of 360 days and paid for the actual
number of days elapsed.
3.04 Taxes.
(a) Any and all payments by the Borrower or a Guarantor, as the case
may be, to any Lender, the Joint Bookrunners or the Administrative Agent
under this Agreement and the other Transaction Documents shall be made free
and clear of, and without deduction or withholding for or on account of, any
Taxes. In addition, the Borrower shall promptly pay all Other Taxes.
(b) Except as otherwise provided in Section 3.04(c), the Borrower and
the Guarantors jointly and severally agree to indemnify and hold harmless
each Lender and the Administrative Agent for the full amount of Taxes or
Other Taxes (without duplication) excluding in each case United States
backup withholding Taxes imposed because of payee underreporting (including
any Taxes or Other Taxes (without duplication) imposed by any jurisdiction
on amounts payable under this Section 3.04) paid by or assessed against any
Lender or the Administrative Agent in respect of any sum payable hereunder
and any liability (including penalties, interest, additions to tax and
expenses) arising therefrom or with respect thereto, whether or not such
Taxes or Other Taxes were correctly or legally asserted, except to the
extent that such penalties, interest, additions to tax or expenses are
incurred solely as a result of any gross negligence or willful misconduct of
such Lender or Administrative Agent, as the case may be. Payment under this
indemnification shall be made within 30 days after the date any Lender or
the Administrative Agent makes written demand therefor, setting forth in
reasonable detail the basis and calculation of such amounts (such written
demand shall be presumed correct, absent significant error).
(c) If the Borrower or the Guarantors, as the case may be, shall be
required by law to deduct or withhold any Taxes or Other Taxes from or in
respect of any sum payable hereunder to any Lender or the Administrative
Agent, then:
(i) the sum payable shall be increased as necessary so that after
making all required deductions and withholdings (including deductions
and withholdings applicable to additional sums payable under this
Section 3.04, but excluding in each case United States backup
withholding Taxes imposed because of payee underreporting) such Lender
or the Administrative Agent receives an amount equal to the sum it
would have received had no such deductions or withholdings been made;
provided, that, the Borrower shall not be required to increase any
amounts payable to such Lender or the Administrative Agent to the
extent such increased amounts would be in excess of the amounts that
would have been payable to such Lender or the Administrative Agent had
such Lender or Administrative Agent complied with the requirements of
Section 3.04(f) or to the extent provided in Section 3.04(g);
(ii) the Borrower or the Guarantors, as the case may be, shall
make such deductions and withholdings; and
(iii) the Borrower or the Guarantors, as the case may be, shall
pay the full amount deducted or withheld to the relevant taxing
authority or other authority in accordance with applicable law.
(d) Within 30 days after the date of any payment by the Borrower or the
Guarantors, as the case may be, of Taxes or Other Taxes, the Borrower or the
Guarantors, as the case may be, shall furnish to the Administrative Agent
the original or a certified copy of a receipt evidencing payment thereof or
other evidence of payment reasonably satisfactory to the Administrative
Agent.
(e) If the Borrower or the Guarantors, as the case may be, is required
to pay additional amounts to the Administrative Agent or any Lender pursuant
to Section 3.04(c) other than amounts related to the withholding of Mexican
tax at the rate applicable to interest payments received by foreign
financial institutions registered with the Secretaria de Hacienda y Credito
Publico as a Foreign Financial Institution for the purposes of Article 195,
Section I of the Mexican Income Tax law, then the Administrative Agent or
such Lender shall, upon reasonable request by the Borrower or the
Guarantors, use reasonable efforts (consistent with legal and regulatory
restrictions) to change the jurisdiction of its Lending Office, issuing
office, or office for receipt of payments by the Borrower and Guarantors
hereunder, as the case may be, so as to eliminate or reduce the obligation
of the Borrower or the Guarantors, as the case may be, to pay any such
additional amounts which may thereafter accrue or to indemnify the
Administrative Agent or such Lender in the future, if such change in the
reasonable judgment of the Administrative Agent or such Lender is not
otherwise disadvantageous to such Lender.
(f) Each Lender and the Administrative Agent shall, from time to time
at the request of the Borrower or the Administrative Agent (as the case may
be), promptly furnish to the Borrower and the Administrative Agent (as the
case may be), such forms, documents or other information (which shall be
accurate and complete) as may be reasonably required to establish any
available exemption from, or reduction in the amount of, applicable Taxes;
provided, however, that none of any Lender or the Administrative Agent shall
be obliged to disclose information regarding its tax affairs or computations
to the Borrower in connection with this paragraph (f), it being understood
that the identity of any Person shall not be considered for these purposes
as information regarding its tax affairs or computations. Each of the
Borrower and the Administrative Agent shall be entitled to rely on the
accuracy of any such forms, documents or other information furnished to it
by any Person and shall have no obligation to make any additional payment or
indemnify any Person for any Taxes, interest or penalties that would not
have became payable by such Person had such documentation been accurate.
(g) In the case of an assignment, transfer, grant of a participation,
designation of a new Lending Office [or Administrative Agent's Payment
Office or appointment of a successor Administrative Agent], the Borrower and
Guarantors shall not be required to pay or increase any amounts, pursuant to
this Section 3.04 following such event, in excess of the amounts the
Borrower and Guarantors were required to pay or increase immediately prior
to such an event, except to the extent such event occurs pursuant to Section
3.11 or to the extent of increases in such amounts resulting from a change
in applicable law occurring after such event.
(h) If the Administrative Agent or any Lender receives a refund or
credit in respect of Taxes or Other Taxes as to which it has been
indemnified by the Borrower or a Guarantor, as the case may be, pursuant to
Section 3.04(b) and such refund or credit is directly and clearly
attributable to this Agreement, it shall notify the Borrower or such
Guarantor, as the case may be, of the amount of such refund or credit and
shall return to the Borrower or such Guarantor, as the case may be, such
refund or the benefit of such credit; provided, however, that (A) the
Administrative Agent or such Lender, as the case may be, shall not be
obligated to make any effort to obtain such refund or credit or to provide
the Borrower or the Guarantors with any information on or justification for
the arrangement of its tax affairs or otherwise disclose to the Borrower,
the Guarantors or any other Person any information that it considers to be
proprietary or confidential, and (B) the Borrower or such Guarantor, as the
case may be, upon the request of the Administrative Agent or such Lender, as
the case may be, shall return the amount of such refund or the benefit of
such credit to the Administrative Agent or such Lender, as the case may be,
if the Administrative Agent or such Lender, as the case may be, is required
to repay the amount of such refund or the benefit of such credit to the
relevant authorities within six years of the date the Borrower or such
Guarantor, as the case may be, is paid such amount by the Administrative
Agent or such Lender, as the case may be.
(i) The agreements in this Section 3.04 shall survive the termination
of this Credit Agreement and the payment of the Borrower's Obligations.
3.05 General Provisions as to Payments.
(a) All payments to be made by the Borrower or the Guarantors, as the
case may be, shall be made without set-off, counterclaim or other defense.
Except as otherwise expressly provided herein, all payments by the Borrower
shall be made to the Administrative Agent for the account of the Lenders at
the Administrative Agent's Payment Office, and shall be made in Dollars and
in immediately available funds, no later than 3:30 p.m. (New York City time)
on the dates specified herein. The Administrative Agent will promptly
distribute to each Lender its Commitment Percentage (or other applicable
share as expressly provided herein) of each payment in like funds as
received. Any payment received by the Administrative Agent later than 3:30
p.m. (New York City time) shall be deemed to have been received on the
following Business Day and any applicable interest or fee shall continue to
accrue until such following Business Day.
(b) Except and to the extent otherwise specifically provided herein,
whenever any payment to be made hereunder is due on a day which is not a
Business Day, the date for payment thereof shall be extended to the
immediately following Business Day and, if interest is stated to be payable
in respect thereof, interest shall continue to accrue to such immediately
following Business Day.
(c) Unless the Administrative Agent shall have received notice from the
Borrower prior to the date on which any payment is due to the Lenders
hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower has made such payment in
full to the Administrative Agent on such date and the Administrative Agent
may (but shall not be so required), in reliance upon such assumption, cause
to be distributed to each Lender, as the case may be, on such due date an
amount equal to the amount then due to such Lender. If and to the extent
that the Borrower shall not have made such payment, each Lender shall repay
to the Administrative Agent forthwith on demand such amount distributed to
such Lender together with accrued interest thereon, for each day from the
date such amount is distributed to such Lender until the date such Lender
repays such amount to the Administrative Agent, at the Federal Funds Rate;
provided, however, that if any amount remains unpaid by any Lender for more
than five Business Days after the Administrative Agent has made a demand for
such amount, such Lender shall, commencing on the day next following such
fifth Business Day, pay interest to the Administrative Agent at a rate per
annum equal to the Federal Funds Rate plus 1%, and, provided further, that
if any such amount remains unpaid by any Lender for more than ten Business
Days, such Lender shall, commencing on the day next following such tenth
Business Day, pay interest to the Administrative Agent at a rate per annum
equal to the Federal Funds Rate plus 2.00%.
(d) Currency of account.
(i) Subject to paragraphs (ii) through (v) below, Dollars are the
currency of account and payment for any sum due from parties under any
Transaction Document.
(ii) A repayment of an Obligation or a part of an Obligation shall
be made in the currency in which that Obligation is denominated on its due
date.
(iii) Each payment of interest shall be made in the currency in
which the sum in respect of which the interest is payable was denominated
when that interest accrued.
(iv) Each payment in respect of costs, expenses or Taxes shall be
made in the currency in which the costs, expenses or Taxes are incurred.
(v) Any amount expressed to be payable in a currency other than
Dollars shall be paid in that other currency.
(e) Change of currency.
Unless otherwise prohibited by law or regulation, if more than
one currency or currency unit are at the same time recognized by the
central bank of any country as the lawful currency of that country, then:
(A) any reference in the Transaction Documents
to, and any Obligations arising under the
Transaction Documents in, the currency of
that country shall be translated into, or
paid in, the currency or currency unit of
that country as agreed by the Administrative
Agent and the Borrower; and
(B) any translation from one currency or
currency unit to another shall be at the
official rate of exchange recognized by the
central bank for the conversion of that
currency or currency unit into the other,
rounded up or down by the Administrative
Agent (acting reasonably).
If a change in any currency of a country occurs, this Agreement will,
to the extent the Administrative Agent and the Borrower deem necessary, be
amended to comply with any generally accepted conventions and market practice in
the relevant interbank market and otherwise to reflect the change in currency.
3.06 Funding Losses. If the Borrower makes any payment of principal
with respect to any LIBOR Loan or Euribor Loan on any day other than the last
day of the Interest Period applicable thereto, or if the Borrower fails to
borrow any LIBOR Loans or Euribor Loans after notice has been given to any
Lender in accordance with Section 2.01 or to convert or continue a Loan as a
LIBOR Loan or Euribor Loan after a Notice of Extension/Conversion has been
delivered by the Borrower pursuant to Section 2.01(e), or if the Borrower fails
to prepay any LIBOR Loans or Euribor Loans after notice has been given pursuant
to Section 2.01, the Borrower shall reimburse each Lender within 15 days after
demand for any resulting loss or expense incurred by it, including any loss
incurred in obtaining, liquidating or reemploying deposits bearing interest by
reference to LIBOR or Euribor from third parties ("Funding Losses"), provided
such Lender shall have delivered to the Borrower a certificate setting forth in
reasonable detail the computations for the amount of such loss or expense, which
certificate shall be conclusive in the absence of manifest error.
3.07 Basis for Determining Interest Rate Inadequate or Unfair. If on
or prior to the first day of any Interest Period for any LIBOR Loan or Euribor
Loan:
(a) the Administrative Agent determines that by reason of circumstances
affecting the London interbank market or the European interbank market, as
the case may be, reasonably adequate means do not exist for ascertaining
LIBOR or Euribor applicable to such Interest Period or that deposits in
Dollars (in the applicable amounts) are not being offered in the London
interbank market or the European interbank market, as the case may be, for
such Interest Period, or
(b) the Required Lenders advise the Administrative Agent that LIBOR or
Euribor as determined by the Administrative Agent will not adequately and
fairly reflect the cost to any Lender of making or maintaining its Loan for
such Interest Period,
(c) then the Administrative Agent shall forthwith give notice thereof
to the Borrower and the Lenders. In the event of any such determination or
advice, until the Administrative Agent shall have notified the Borrower and
the Lenders that the circumstances giving rise to such notice no longer
exist, any request by the Borrower for a Loan of the affected amount or
Interest Period, or a conversion to or continuation of a Loan of the
affected amount or Interest Period shall be deemed rescinded and such
request shall instead be considered a request for a Base Rate Loan. Each
determination by the Administrative Agent hereunder shall be conclusive
absent manifest error.
3.08 Capital Adequacy.
If any Lender has determined, after the date hereof, that the adoption
or the becoming effective of, or any change in, or any change by any
Governmental Authority, central bank, or comparable agency charged with the
interpretation or administration thereof in the interpretation or administration
of, any applicable law, rule, or regulation regarding capital adequacy, or
compliance by such Lender with any request or directive regarding capital
adequacy (whether or not having the force of law) of any such authority, central
bank, or comparable agency, has or would have the effect of increasing such
Lender's cost of maintaining its Commitment or making or maintaining any Loans
or reducing the rate of return on such Lender's capital or assets as a
consequence of its commitments or obligations hereunder to a level below that
which such Lender could have achieved but for such adoption, effectiveness,
change, or compliance (taking into consideration such Lender's policies with
respect to capital adequacy), then, upon notice from such Lender to the
Borrower, the Borrower shall be obligated to pay to such Lender such additional
amount or amounts as will compensate such Lender for such increased cost or
reduction in amount received. Each determination by any such Lender of amounts
owing under this Section shall, absent manifest error, be conclusive and binding
on the parties hereto. The relevant Lender will, upon request, provide a
certificate in reasonable detail as to the amount of such increased cost or
reduction in amount received and method of calculation.
Upon any Lender's making a claim for compensation under this Section
3.08, (i) such Lender shall use commercially reasonable efforts (consistent with
legal and regulatory restrictions) to change the jurisdiction of its Lending
Office or assign its rights and obligations hereunder to another of its offices,
branches or affiliates so as to eliminate or reduce any such additional payment
by the Borrower which may thereafter accrue, if such change is not otherwise
disadvantageous to such Lender, and (ii) the Borrower may replace such Lender in
accordance with Section 3.11.
3.09 Illegality.
(a) Notwithstanding any other provision herein, if the adoption of or
any change in any Requirement of Law or in the interpretation or application
thereof occurring after the Effective Date shall make it unlawful for any
Lender to make or maintain any Commitment or any Loan as contemplated by
this Agreement, then such Lender, together with Lenders giving notice under
Section 3.07, shall be an "Affected Lender" and by written notice to the
Borrower and to the Administrative Agent:
(i) such Lender may declare that such Loans will not thereafter
(for the duration of such unlawfulness or impossibility) be made by
such Lender hereunder, whereupon, in the case of any request for a
LIBOR Loan or a Euribor Loan, as to such Lender, such request shall
only be deemed a request for a Base Rate Loan (unless it should also be
illegal for the Affected Lender to provide a Base Rate Loan, in which
case such Loan shall bear interest at a commensurate rate to be agreed
upon by the Administrative Agent and the Affected Lender, and so long
as no Event of Default shall have occurred and be continuing, the
Borrower), unless such declaration shall be subsequently withdrawn;
(ii) such Lender may require that all outstanding LIBOR Loans and
Euribor Loans, made by it be converted to Base Rate Loans, in which
event all such LIBOR Loans and Euribor Loans shall be automatically
converted to Base Rate Loans as of the effective date of such notice as
provided in paragraph (b) below; and
(iii) if it is also illegal for the Affected Lender to make Base
Rate Loans, such Lender may declare all amounts owed to them by the
Borrower to the extent of such illegality to be due and payable;
provided, however, the Borrower has the right, with the consent of the
Administrative Agent to find an additional Lender to purchase the
Affected Lenders' rights and obligations.
In the event any Lender shall exercise its rights under (i) or (ii) above with
respect to any Loans, all payments and prepayments of principal that would
otherwise have been applied to repay the LIBOR Loans or the Euribor Loans that
would have been made by such Lender or the converted LIBOR Loans or the
converted Euribor Loans of such Lender shall instead be applied to repay the
Base Rate Loans made by such Lender in lieu of, or resulting from the
conversion, of such LIBOR Loans or Euribor Loans.
(b) For purposes of this Section 3.09, a notice to the Borrower by any
Lender shall be effective as to each such Loan, if lawful, on the last day
of the Interest Period currently applicable to such Loan; in all other cases
such notice shall be effective on the date of receipt by the Borrower.
3.10 Requirements of Law.
If, after the date hereof, the adoption of or any change in any
Requirement of Law or in the interpretation or application thereof applicable to
any Lender, or compliance by any Lender with any request or directive (whether
or not having the force of law) from any central bank or other Governmental
Authority, in each case made subsequent to the Effective Date (or, if later, the
date on which such Lender becomes a Lender):
(a) shall impose, modify, or hold applicable any reserve, special
deposit, compulsory loan, or similar requirement against assets held by,
deposits or other liabilities in or for the account of, advances, loans, or
other extensions of credit by, or any other acquisition of funds by, any
office of such Lender that is not otherwise included in the determination of
LIBOR or Euribor hereunder; or
(b) shall impose on such Lender any other condition (excluding any tax
of any kind whatsoever);
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount that such Lender reasonably deems to be material, of making,
converting into, continuing, or maintaining LIBOR Loans or Euribor Loans or to
reduce any amount receivable hereunder in respect thereof, then, in any such
case, upon notice delivered to the Borrower from such Lender, through the
Administrative Agent, in accordance herewith, the Borrower shall be obligated to
promptly pay such Lender, upon its demand, any additional amounts necessary to
compensate such Lender for such increased cost or reduced amount receivable;
provided that, in any such case, the Borrower may elect to convert the LIBOR
Loans and Euribor Loans made by such Lender hereunder to Base Rate Loans by
giving the Administrative Agent at least one (1) Business Day's notice of such
election. If any Lender becomes entitled to claim any additional amounts
pursuant to this Section, it shall provide notice thereof to the Borrower,
promptly upon occurrence of such event, but in any case within three (3) days
from the date of such event, through the Administrative Agent, certifying (x)
that one of the events described in this paragraph (a) has occurred and
describing in reasonable detail the nature of such event, (y) as to the
increased cost or reduced amount resulting from such event and (z) as to the
additional amount demanded by such Lender and a reasonably detailed explanation
of the calculation thereof. Such a certificate as to any additional amounts
payable pursuant to this subsection submitted by such Lender, through the
Administrative Agent, to the Borrower shall be conclusive and binding on the
parties hereto in the absence of manifest error. This covenant shall survive the
termination of this Agreement and the payment of the Loans and all other amounts
payable hereunder. If any Lender becomes aware of a proposed change in any
Requirement of Law that would entitle it to claim any additional amounts
pursuant to this Section it shall promptly, upon the Lender becoming aware of
such event, provide notice to the Borrower through the Administrative Agent.
3.11 Substitute Lenders. If any Lender has demanded compensation (or
if the Borrower is required to increase amounts payable hereunder) pursuant to
Sections 3.04, 3.08, or 3.10 or has exercised its rights pursuant to Section
3.09(a)(iii), and such Lender does not waive its right to future additional
compensation pursuant to Sections 3.04, 3.08 or 3.10, the Borrower shall have
the right (i) to replace such Lender with a Substitute Lender or Substitute
Lenders that shall succeed to the rights of such Lender under this Agreement
upon execution of an Assignment and Assumption Agreement and payment by the
Borrower of the related processing fee of U.S.$3,500 to the Administrative
Agent; or (ii) to remove such Lender, reduce the Commitments by the amount of
the Commitment of such Lender, and adjust the Commitment Percentage of each
Lender such that the percentage of each other Lender shall be increased to
equal the percentage equivalent of a fraction. The numerator of which is the
Commitment of such other Lender and the denominator of which is the Commitments
of the Lenders minus the Commitments of the Lender who demanded payment
pursuant to Sections 3.04, 3.08 or 3.10 or exercised its rights pursuant to
Section 3.09(a)(iii); provided, however, that such Lender shall not be replaced
or removed hereunder until such Lender has been repaid in full all amounts owed
to it pursuant to this Agreement and the other Transaction Documents (including
Sections 3.06 and 3.08) unless any such amount is being contested by the
Borrower in good faith.
3.12 Sharing of Payments, Etc.
(a) If, other than as expressly provided elsewhere herein, any Lender
shall obtain on account of the Obligations owing to it any payment (whether
voluntary, involuntary, through the exercise of any right of set-off, or
otherwise) in excess of its Commitment Percentage of payments on account of
the Obligations obtained by all the Lenders (an "excess payment"), such
Lender shall forthwith (i) notify the Administrative Agent of such fact,
and (ii) purchase from the other Lenders such participations in such
Obligations owing to them as shall be necessary to cause such purchasing
Lender to share the excess payment ratably with each of them; provided,
however, that if all or any portion of such excess payment is thereafter
recovered from the purchasing Lender, such purchase shall to that extent be
rescinded and each other Lender shall repay to the purchasing Lender the
purchase price paid therefor, together with an amount equal to such paying
Lender's Commitment Percentage (according to the proportion of (A) the
amount of such paying Lender's required repayment 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 Administrative Agent will keep records (which shall be
conclusive and binding in the absence of demonstrable error) of
participations purchased pursuant to this Section 3.12 and will in each
case notify the Lenders following any such purchases.
(b) If any Lender shall commence any action or proceeding in any court
to enforce its rights hereunder after consultation with the other Lenders
and, as a result thereof or in connection therewith, it shall receive any
excess payment, then such Lender shall not be required to share any portion
of such excess payment with any Lender which has the legal right to, but
does not, join in any such action or proceeding or commence and diligently
prosecute a separate action or proceeding to enforce its rights in another
court.
(c) The Borrower agrees that any Lender so purchasing a participation
from another Lender pursuant to this Section 3.12 may exercise all its
rights of set-off with respect to such participation as fully as if such
Lender were the direct creditor of the Borrower in the amount of such
participation.
ARTICLE IV
CONDITIONS PRECEDENT
--------------------
4.01 Conditions to Effectiveness. The obligations of the Lenders under
this Agreement are subject to the satisfaction or waiver of the following
conditions precedent (the date on which all such conditions precedent are
satisfied or waived being the "Effective Date"):
(a) Agreement. The Administrative Agent shall have received
counterparts of this Agreement duly executed by each party hereto and there
shall have been delivered to the Administrative Agent for the account of
each Lender a Note executed by the Borrower.
(b) Opinions of Borrower's and each Guarantor's Counsel. The
Administrative Agent shall have received (i) the opinion of Skadden, Arps,
Slate, Meagher & Flom LLP, New York counsel to the Borrower and the
Guarantors, in substantially the form of Exhibit E, and (ii) the opinion of
Lic. Ramiro G. Villareal Morales, Mexican counsel to the Borrower, in
substantially the form of Exhibit F.
(c) Opinion of Counsel to the Administrative Agent. The Administrative
Agent shall have received (i) a favorable opinion of Ritch, Heather y
Mueller, S.C., special Mexican counsel to the Administrative Agent and the
Lenders, and (ii) the opinion of Sullivan & Cromwell LLP, New York counsel
to the Lenders.
(d) Governmental Approvals. The Administrative Agent shall have
received certified copies of any and all necessary approvals,
authorizations, or consents of, or notices to, or registrations with any
Governmental Authority required for the Borrower and each Guarantor to
enter into, or perform its obligations under, the Transaction Documents.
(e) Organizational Documents of the Borrower and the Guarantors. The
Administrative Agent shall have received certified copies of (i) the acta
constitutiva and estatutos sociales in effect on the Effective Date of the
Borrower and each Guarantor, (ii) the powers-of-attorney of each Person
executing any Transaction Document on behalf of the Borrower and each
Guarantor, together with specimen signatures of such Person and (iii) all
documents evidencing other necessary corporate action and governmental
approvals, if any, with respect to the authorization for the execution,
delivery and performance of each such Transaction Document and the
transactions contemplated hereby and thereby. All certificates shall state
that the resolutions or other information referred to in such certificates
have not been amended, modified, revoked or rescinded as of the date of
such certificates (which shall not be earlier than five Business Days
before the Effective Date).
(f) Agent for Service of Process. The Administrative Agent shall have
received a power of attorney, notarized under Mexican law, granted by the
Borrower and each Guarantor to the Process Agent in respect of the
Transaction Documents together with evidence that the Process Agent has
accepted its appointment as Process Agent pursuant to Section 13.12.
(g) Fees and Expenses. The Borrower shall have paid all fees and
expenses owing to the Lenders, the Joint Bookrunners and the Administrative
Agent to the extent of and payable on or before the Effective Date of the
Agreement, and all other fees and expenses owing hereunder and under the
Fee Letter to the extent due and payable on or before the Effective Date of
the Agreement.
(h) No Default. No Default or Event of Default shall have occurred and
be continuing either prior to or after giving effect to the transactions
contemplated on the Effective Date, and the Borrower and each Guarantor
shall have provided a certificate from a Responsible Officer of the
Borrower to such effect to the Administrative Agent.
(i) Representations and Warranties. The representations and warranties
of the Borrower and of each Guarantor contained in this Agreement and each
other Transaction Document shall be true on and as of the Effective Date,
and the Borrower and each Guarantor shall have provided a certificate to
such effect to the Administrative Agent.
(j) No Material Adverse Effect. No Material Adverse Effect shall have
occurred since December 31, 2004 and there shall have occurred no
circumstance and/or event of a financial, political or economic nature in
Mexico that has a reasonable likelihood of having a material adverse effect
on the ability of the Borrower or the Guarantors to perform their
obligations under this Agreement and the other Transaction Documents; for
the avoidance of doubt, the fact that the Borrower has acquired the shares
of RMC Group p.l.c. shall not itself be deemed to have been a Material
Adverse Effect.
(k) Other Documents. The Administrative Agent shall have received such
other certificates, powers of attorney and other documents and undertakings
relating to the authority for, and the execution, delivery and validity of,
the Transaction Documents, as may be reasonably requested by the
Administrative Agent or any Lender through the Administrative Agent.
(l) Fees, Costs and Expenses under the Term Credit Agreement. The
Borrower shall have paid all accrued and unpaid fees payable under the Term
Credit Agreement to the extent due and payable on or before the Effective
Date of this Agreement.
(m) Term Credit Agreement. The Term Credit Agreement shall have been
cancelled or terminated in accordance with its respective terms; any
promissory notes issued thereunder shall have been cancelled or returned to
the Borrower; and all outstanding indebtedness for money borrowed under the
Term Credit Agreement shall have been, or will be simultaneously with the
Borrowings hereunder, repaid in full. The parties hereto agree that a
Notice of Borrowing may be given under this Agreement simultaneously to
repay all outstanding obligations under the Term Credit Agreement.
4.02 Conditions Precedent to Borrowings and Continuation or Conversion
of the Loans. The obligation of any Lender to make a Loan on the occasion
of any Borrowing or to continue or convert any Loan is subject to the
satisfaction of the following conditions:
(a) Notices. In the case of Borrowings, continuance or conversion of
Loans, the Administrative Agent shall have received a Notice of Borrowing
or a Notice of Extension/Conversion as required by Section 2.01(c) or
2.01(e), respectively;
(b) Availability. Immediately after such Borrowing or the continuation
or conversion of any Loan, the Total Outstandings for such Lender shall not
exceed the Commitment of such Lender;
(c) No Default. Immediately before and after giving effect to such
Borrowing or the continuation or conversion of any Borrowing, no Default or
Event of Default shall have occurred and be continuing and such Borrowing
or continuation or conversion of any Loan will not cause or result in a
Default or Event of Default; and
(d) Representations and Warranties. The representations and warranties
of the Borrower contained in this Agreement and in each other Transaction
Document and of each Guarantor contained in this Agreement shall be true
and correct in all material respects on and as of the date of any Borrowing
or continuation or conversion of any Loan.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE BORROWER
----------------------------------------------
The Borrower represents and warrants that:
5.01 Corporate Existence and Power. .
(a) The Borrower is a corporation (sociedad anonima de capital
variable) duly incorporated, validly existing and in good standing under
the laws of Mexico and has all requisite corporate power and authority
(including all governmental licenses, permits and other approvals except
for such licenses, permits and approvals the absence of which will not have
a Material Adverse Effect) to own its assets and carry on its business as
now conducted and as proposed to be conducted.
(b) All of the outstanding stock of the Borrower has been validly
issued and is fully paid and non-assessable.
5.02 Power and Authority; Enforceable Obligations.
(a) The execution, delivery and performance by the Borrower of each
Transaction Document to which it is or will be a party, and the
consummation of the transactions contemplated hereby and thereby, are
within the Borrower's corporate powers and have been duly authorized by all
necessary corporate action pursuant to the estatutos sociales of the
Borrower.
(b) This Agreement and the other Transaction Documents to which the
Borrower is a party have been duly executed and delivered by the Borrower
and constitute the legal, valid and binding obligations of the Borrower
enforceable in accordance with their respective terms, except as
enforceability may be limited by applicable concurso mercantil, bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors'
rights generally or general equity principles.
5.03 Compliance with Law and Other Instruments. The execution,
delivery of and performance under this Agreement and each of the other
Transaction Documents to which the Borrower is a party and the consummation of
the transactions herein or therein contemplated, and compliance with the terms
and provisions hereof and thereof, do not and will not (a) conflict with, or
result in a breach or violation of, or constitute a default under, or result in
the creation or imposition of any Lien upon the assets of the Borrower pursuant
to, any Contractual Obligation of the Borrower or (b) result in any violation
of the estatutos sociales of the Borrower or any provision of any Requirement
of Law applicable to the Borrower.
5.04 Consents/Approvals. No order, permission, consent, approval,
license, authorization, registration or validation of, or notice to or filing
with, or exemption by, any Governmental Authority or third party is required to
authorize, or is required in connection with, the execution, delivery and
performance by the Borrower of this Agreement and the other Transaction
Documents to which the Borrower is a party or the taking of any action
contemplated hereby or by any other Transaction Document.
5.05 Financial Information. The consolidated balance sheet of the
Borrower and its Subsidiaries as at December 31, 2004, and the related
consolidated statements of income and cash flows of the Borrower and its
Subsidiaries for the fiscal year then ended, accompanied by an opinion of KPMG
Cardenas Dosal, S.C., independent public accountants, and the consolidated
balance sheet of the Borrower and its Subsidiaries as at March 31, 2005, and
the related consolidated statements of income and cash flows of the Borrower
and its Subsidiaries for the three months then ended, duly certified by the
chief financial officer of the Borrower, copies of which have been furnished to
each Lender, fairly present, subject, in the case of said balance sheet as at
March 31, 2005, and said statements of income and cash flows for the three
months then ended, to year-end audit adjustments, the consolidated financial
condition of the Borrower and its Subsidiaries as at such dates and the
consolidated results of the operations of the Borrower and its Subsidiaries for
the periods ended on such dates, all in accordance with Mexican GAAP,
consistently applied.
5.06 Litigation. Except as set forth in Schedule 5.06, there is no
pending or threatened action, suit, investigation, litigation or proceeding,
including any Environmental Action, affecting the Borrower or any of its
Subsidiaries before any court, Governmental Authority or arbitrator that (a)
would be reasonably likely to have a Material Adverse Effect or (b) purports to
affect the legality, validity or enforceability of any Transaction Document or
the consummation of the transactions contemplated thereby, and there has been
no adverse change in the status, or financial effect on the Borrower or any of
its Subsidiaries, of the litigation described in Schedule 5.06.
5.07 No Immunity. The Borrower is subject to civil and commercial law
with respect to its obligations under this Agreement and each other Transaction
Document to which it is a party and the execution, delivery and performance of
this Agreement or any such other Transaction Document by the Borrower
constitute private and commercial acts rather than public or governmental acts.
Under the laws of Mexico neither the Borrower nor any of its property has any
immunity from jurisdiction of any court or any legal process (whether through
service or notice, attachment prior to judgment or attachment in aid of
execution).
5.08 Governmental Regulations. The Borrower is not, and is not
controlled by, (a) an "investment company" within the meaning of the United
States Investment Company Act of 1940, as amended or (b) a "holding company",
or of a "subsidiary company" of a "holding company", or an "affiliate" of a
"holding company" or of a "subsidiary" of a "holding company", within the
meaning of the Public Utility Holding Company Act of 1935, as amended.
5.09 Direct Obligations; Pari Passu; Liens.
(a) (i) This Agreement constitutes a direct, unconditional
unsubordinated and unsecured obligation of the Borrower, and (ii) the
Loans, when made, will constitute direct, unconditional unsubordinated and
unsecured obligations of the Borrower.
(b) The obligations of the Borrower under this Agreement and the Loans
rank and will rank in priority of payment at least pari passu with all
other senior unsecured Debt of the Borrower.
(c) There are no Liens on the property of the Borrower or any of its
Subsidiaries other than Permitted Liens.
5.10 Subsidiaries. As of March 31, 2005, all Material Subsidiaries of
the Borrower are listed on Schedule 5.10, without giving effect to the
acquisition of RMC Group p.l.c.
5.11 Ownership of Property. (a) Except as, in the aggregate, could not
reasonably be expected to have a Material Adverse Effect, each of the Borrower
and its Subsidiaries has title in fee simple to, or a valid leasehold interest
in, all its real property, and good title to, or a valid leasehold interest in,
all its other property, and none of such property is subject to any Lien except
Permitted Liens and (b) each Credit Party maintains insurance as required by
Section 7.05.
5.12 No Recordation Necessary.
(a) This Agreement and the Notes are in proper legal form under the
law of Mexico for the enforcement thereof against the Borrower under the
law of Mexico. To ensure the legality, validity, enforceability or
admissibility in evidence of this Agreement and each other Transaction
Document in Mexico, it is not necessary that this Agreement or any other
Transaction Document be filed or recorded with any Governmental Authority
in Mexico or that any stamp or similar tax be paid on or in respect of this
Agreement or any other document to be furnished under this Agreement,
unless such stamp or similar taxes have been paid by the Borrower;
provided, however, that in the event any legal proceedings are brought in
the courts of Mexico, an official Spanish translation of the documents
required in such proceedings, including this Agreement, would have to be
approved by the court after the defendant is given an opportunity to be
heard with respect to the accuracy of the translation, and proceedings
would thereafter be based upon the translated documents.
(b) It is not necessary (i) in order for the Administrative Agent or
any Lender to enforce any rights or remedies under the Transaction
Documents or (ii) solely by reason of the execution, delivery and
performance of this Agreement by the Administrative Agent or any Lender,
that the Administrative Agent or such Lender be licensed or qualified with
any Mexican Governmental Authority or be entitled to carry on business in
Mexico.
5.13 Taxes.
(a) Each Obligor has filed all material tax returns which are required
to be filed by it and has paid all taxes due pursuant to such returns or
pursuant to any material assessment received by the Borrower, except where
the same may be contested in good faith by appropriate proceedings and as
to which such Obligor maintains reserves to the extent it is required to do
so by law or pursuant to Mexican GAAP. The charges, accruals and reserves
on the books of each Obligor in respect of taxes or other governmental
charges are, in the opinion of the Borrower, adequate.
(b) Except for tax imposed by way of withholding on interest, fees and
commissions remitted from Mexico, there is no tax (other than taxes on, or
measured by, income or profits), levy, impost, deduction, charge or
withholding imposed, levied, charged, assessed or made by or in Mexico or
any political subdivision or taxing authority thereof or therein either (i)
on or by virtue of the execution or delivery of this Agreement or any of
the other Transaction Documents or (ii) on any payment to be made by the
Borrower pursuant to this Agreement or any of the other Transaction
Documents. The Borrower and each Guarantor is permitted to pay any
additional amounts payable pursuant to Section 3.04.
5.14 Compliance with Laws. The Borrower and its Subsidiaries are in
compliance in all material respects with all applicable Requirements of Law
(including with respect to the licenses, certificates, permits, franchises, and
other governmental authorizations necessary to the ownership of their
respective properties or to the conduct of their respective businesses,
antitrust laws or Environmental Laws and the rules and regulations and laws
with respect to social security, workers' housing funds, and pension funds
obligations), except where the failure to so comply would not have a Material
Adverse Effect.
5.15 Absence of Default. No Default or Event of Default has occurred
and is continuing.
5.16 Full Disclosure. All information heretofore furnished by the
Borrower to the Administrative Agent, the Joint Bookrunners or any Lender for
purposes of or in connection with this Agreement or any transaction
contemplated hereby (other than projections and other "forward-looking"
information that have been prepared on a reasonable basis and in good faith by
the Borrower) is, and all such information hereafter furnished by the Borrower
to the Administrative Agent, the Joint Bookrunners or any Lender will be, true
and accurate in all material respects on the date as of which such information
is stated or certified and does not omit to state any material fact necessary
in order to make the statements contained herein or therein, taken as a whole,
not misleading. The Borrower has disclosed to the Lenders in writing any and
all facts which may have a Material Adverse Effect.
5.17 Choice of Law; Submission to Jurisdiction and Waiver of Sovereign
Immunity. In any action or proceeding involving the Borrower arising out of or
relating to this Agreement in any Mexican court or tribunal, any Lender, the
Joint Bookrunners and the Administrative Agent would be entitled to the
recognition and effectiveness of the choice of law, submission to jurisdiction
and waiver of sovereign immunity provisions of Sections 13.10, 13.11 and 13.13.
5.18 Aggregate Exposure. The Aggregate Exposure does not exceed the
Aggregate Committed Amount.
5.19 Pension and Welfare Plans. During the consecutive twelve-month
period prior to the date of the execution and delivery of this Agreement and
prior to the date of any Borrowing hereunder, no steps have been taken to
terminate any Pension Plan, and no contribution failure has occurred with
respect to any Pension Plan sufficient to give rise to a Lien under Section
302(f) of ERISA. No condition exists or event or transaction has occurred with
respect to any Pension Plan which would reasonably be expected to result in the
incurrence by any Credit Party, any of its Subsidiaries, or any its ERISA
Affiliates of any material liability (other than liabilities incurred in the
ordinary course of maintaining the Pension Plan), fine or penalty. No Credit
Party, nor any of its Subsidiaries, has any contingent liability with respect
to any post-retirement benefit under a Welfare Plan which would reasonably be
expected to have a Material Adverse Effect, other than liability for
continuation coverage described in Part 6 of Title I of ERISA.
5.20 Environmental Matters.
Except as would not have or be reasonably expected to have a Material
Adverse Effect:
(a) Each of the properties owned or leased by a Credit Party or any of
its Subsidiaries (the "Real Properties") and all operations at the Real
Properties are in compliance with all applicable Environmental Laws, and
there is no violation of any Environmental Law with respect to the Real
Properties or the businesses operated by the Credit Parties or any of their
Subsidiaries (the "Businesses"), and there are no conditions relating to
the Businesses or Real Properties that would reasonably be expected to give
rise to liability under any applicable Environmental Laws.
(b) No Credit Party has received any written notice of, or inquiry
from any Governmental Authority regarding, any violation, alleged
violation, non-compliance or liability regarding Hazardous Materials or
compliance with Environmental Laws with regard to any of the Real
Properties or the Businesses, nor, to the knowledge of a Credit Party or
any of its Subsidiaries, is any such notice being threatened.
(c) Hazardous Materials have not been transported or disposed of from
the Real Properties, or generated, treated, stored or disposed of at, on or
under any of the Real Properties or any other location, in each case by, or
on behalf or with the permission of, a Credit Party or any of its
Subsidiaries in a manner that would give rise to liability under any
applicable Environmental Laws.
(d) No judicial proceeding or governmental or administrative action is
pending or, to the knowledge of a Credit Party or any of its Subsidiaries,
threatened, under any Environmental Law to which a Credit Party or any of
its Subsidiaries is or will be named as a party, nor are there any consent
decrees or other decrees, consent orders, administrative orders or other
orders, or other administrative or judicial requirements outstanding under
any Environmental Law with respect to a Credit Party or any of its
Subsidiaries, the Real Properties or the Businesses.
(e) There has been no release (including disposal) or to the
Borrower's knowledge, threat of release of Hazardous Materials at or from
the Real Properties, or arising from or related to the operations of a
Credit Party or any of its Subsidiaries in connection with the Real
Properties or otherwise in connection with the Businesses where such
release constituted a violation of, or would give rise to liability under,
any applicable Environmental Laws.
(f) None of the Real Properties contains any Hazardous Materials at,
on or under the Real Properties in amounts or concentrations that, if
released, constitute a violation of, or could give rise to liability under,
Environmental Laws.
(g) No Credit Party, nor any of its Subsidiaries, has assumed any
liability of any Person (other than another Credit Party or one of its
Subsidiaries) under any Environmental Law.
(h) This Section 5.20 constitutes the only representations and
warranties of the Credit Parties with respect to any Environmental Law or
Hazardous Substance.
5.21 Margin Regulations. No part of the proceeds of the Loans
hereunder will be used, directly or indirectly, for the purpose of purchasing
or carrying any "margin stock" within the meaning of Regulation U, or for the
purpose of purchasing or carrying or trading in any securities. If requested by
any Lender or the Administrative Agent, the Borrower will furnish to the
Administrative Agent and each Lender a statement to the foregoing effect in
conformity with the requirements of FR Form U-1 referred to in said Regulation
U. No indebtedness being reduced or retired out of the proceeds of the Loans
hereunder was or will be incurred for the purpose of purchasing or carrying any
margin stock within the meaning of Regulation U or any "margin security" within
the meaning of Regulation T. "Margin stock" within the meaning of Regulation U
does not constitute more than 25% of the value of the consolidated assets of
the Borrower and its Subsidiaries. Neither the execution and delivery hereof by
the Borrower, nor the performance by it of any of the transactions contemplated
by this Agreement (including the direct or indirect use of the proceeds of the
Loans) will violate or result in a violation of the Securities Act of 1933, as
amended, or the Securities Exchange Act of 1934, as amended, or regulations
issued pursuant thereto, or Regulation T, U, or X.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF THE GUARANTORS
------------------------------------------------
Each of the Guarantors separately represents and warrants that:
6.01 Corporate Existence and Power.
(a) Such Guarantor is a corporation (sociedad anonima de capital
variable) duly incorporated, validly existing and in good standing under the
laws of Mexico and has all requisite corporate power and authority
(including all governmental licenses, permits and other approvals except for
such licenses, permits and approvals the absence of which will not have a
Material Adverse Effect) to own its assets and carry on its business as now
conducted and as proposed to be conducted.
(b) All of the outstanding stock of such Guarantor has been validly
issued and is fully paid and non-accessible.
6.02 Power and Authority; Enforceable Obligations.
(a) The execution, delivery and performance by such Guarantor of each
Transaction Document to which it is or will be a party, and the consummation
of the transactions contemplated hereby and thereby, are within such
Guarantor's corporate powers and have been duly authorized by all necessary
corporate action pursuant to the estatutos sociales of such Guarantor.
(b) This Agreement and the other Transaction Documents to which such
Guarantor is a party have been duly executed and delivered by such Guarantor
and constitute legal, valid and binding obligations of such Guarantor
enforceable in accordance with their respective terms, except as
enforceability may be limited by applicable concurso mercantil, bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors'
rights generally or general equity principals.
6.03 Compliance with Law and Other Instruments. The execution,
delivery and performance of this Agreement and any of the other Transaction
Documents to which such Guarantor is a party and the consummation of the
transactions herein or therein contemplated, and compliance with the terms and
provisions hereof and thereof, do not and will not (a) conflict with, or result
in a breach or violation of, or constitute a default under, or result in the
creation or imposition of any Lien upon the assets of such Guarantor pursuant
to, any Contractual Obligation of such Guarantor or (b) result in any violation
of the estatutos sociales of such Guarantor or any provision of any Requirement
of Law applicable to such Guarantor.
6.04 Consents/Approvals. No order, permission, consent, approval,
license, authorization, registration or validation of, or notice to or filing
with, or exemption by, any Governmental Authority or third party is required to
authorize, or is required in connection with, the execution, delivery and
performance by such Guarantor of this Agreement and the other Transaction
Documents to which such Guarantor is a party or the taking of any action
contemplated hereby or by any other Transaction Document.
6.05 Litigation; Material Adverse Effect. Except as set forth in
Schedule 6.05, there is no pending or threatened action, suit, investigation,
litigation or proceeding, including any Environmental Action, affecting the
Borrower or any of its Subsidiaries before any court, Governmental Authority or
arbitrator that (i) would be reasonably likely to have a Material Adverse
Effect or (ii) purports to affect the legality, validity or enforceability of
any Transaction Document or the consummation of the transactions contemplated
thereby, and there has been no adverse change in the status, or financial
effect on the Borrower or any of its Subsidiaries, of the litigation described
in Schedule 6.05.
6.06 No Immunity. Such Guarantor is subject to civil and commercial
law with respect to its obligations under this Agreement and each other
Transaction Document to which it is a party and the execution, delivery and
performance of this Agreement or any such other Transaction Document by such
Guarantor constitute private and commercial acts rather than public or
governmental acts. Under the laws of Mexico neither such Guarantor nor any of
its property has any immunity from jurisdiction of any court or any legal
process (whether through service or notice, attachment prior to judgment or
attachment in aid of execution).
6.07 Governmental Regulations. Such Guarantor is not, and is not
controlled by, (a) an "investment company" within the meaning of the United
States Investment Company Act of 1940, as amended or (b) a "holding company",
or a "subsidiary company" of a "holding company", or an "affiliate" of a
"holding company" or of a "subsidiary" of a "holding company", within the
meaning of the Public Utility Holding Company Act of 1935, as amended.
6.08 Direct Obligations; Pari Passu.
(a) This Agreement constitutes a direct, unconditional unsubordinated and
unsecured obligation of such Guarantor.
(b) The obligations of such Guarantor under this Agreement rank and will
rank in priority of payment at least pari passu with all other senior
unsecured Debt of such Guarantor.
6.09 No Recordation Necessary. This Agreement is in proper legal form
under the law of Mexico for the enforcement thereof against such Guarantor
under the law of Mexico. To ensure the legality, validity, enforceability or
admissibility in evidence of this Agreement and each other Transaction Document
in Mexico, it is not necessary that this Agreement or any other Transaction
Document be filed or recorded with any Governmental Authority in Mexico or that
any stamp or similar tax be paid on or in respect of this Agreement or any
other document to be furnished under this Agreement unless such stamp or
similar taxes have been paid by the Borrower or the Guarantors; provided,
however, that in the event any legal proceedings are brought in the courts of
Mexico, an official Spanish translation of the documents required in such
proceedings, including this Agreement, would have to be approved by the court
after the defendant is given an opportunity to be heard with respect to the
accuracy of the translation, and proceedings would thereafter be based upon the
translated documents.
6.10 Choice of Law; Submission to Jurisdiction and Waiver of Sovereign
Immunity. In any action or proceeding involving such Guarantor arising out of
or relating to this Agreement in any Mexican court or tribunal, the Lenders,
the Joint Bookrunners and the Administrative Agent would be entitled to the
recognition and effectiveness of the choice of law, submission to jurisdiction
and waiver of sovereign immunity provisions of Sections 13.10, 13.11 and 13.13.
ARTICLE VII
AFFIRMATIVE COVENANTS
---------------------
The Borrower covenants and agrees that for so long as any Obligation
under this Agreement or any other Transaction Document remains unpaid or any
Lender has any Commitment hereunder:
7.01 Financial Reports and Other Information. The Borrower will
deliver to the Administrative Agent (with a copy for each Lender):
(a) as soon as available and in any event within 120 days after the
end of each fiscal year of the Borrower, a copy of the annual audit report
for such year for the Borrower and its Subsidiaries containing consolidated
and consolidating balance sheets of the Borrower and its Subsidiaries, as of
the end of such fiscal year and consolidated statements of income and cash
flows of the Borrower and its Subsidiaries, for such fiscal year, in each
case accompanied by an opinion acceptable to the Required Lenders by KPMG
Cardenas Dosal, S.C. or other independent public accountants of recognized
standing acceptable to the Required Lenders, together with (i) a certificate
of such accounting firm to the Lenders stating that in the course of the
regular audit of the business of the Borrower and its Subsidiaries, which
audit was conducted by such accounting firm in accordance with Mexican GAAP,
such accounting firm has obtained no knowledge that a Default or Event of
Default has occurred and is continuing, or if, in the opinion of such
accounting firm a Default or Event of Default has occurred and is
continuing, a statement as to the nature thereof and (ii) a certificate of a
Responsible Officer of the Borrower, stating that no Default or Event of
Default has occurred and is continuing or, if a Default or Event of Default
has occurred and is continuing, a statement as to the nature thereof and the
action that the Borrower has taken and proposes to take with respect
thereto; provided that in the event of any change in the Mexican GAAP used
in the preparation of such financial statements, the Borrower shall also
provide, for informational purposes only, a statement of reconciliation
conforming such financial statements to Mexican GAAP consistent with those
applied in the preparation of the financial statements referred to in
Section 5.05 and provided further that all such documents will be prepared
in English; and
(b) as soon as available and in any event within 60 days after the end
of each of the first three quarters of each fiscal year of the Borrower,
consolidated balance sheets of the Borrower and its Subsidiaries, as of the
end of such quarter and consolidated statements of income and cash flows of
the Borrower and its Subsidiaries for the period commencing at the end of
the previous fiscal year and ending with the end of such quarter, duly
certified (subject to year-end audit adjustments) by any Responsible Officer
of the Borrower as having been prepared in accordance with Mexican GAAP and
together with a certificate of a Responsible Officer of the Borrower, as to
compliance with the terms of this Agreement and stating that no Default or
Event of Default has occurred and is continuing or, if a Default or Event of
Default has occurred and is continuing, a statement as to the nature thereof
and the action that the Borrower has taken and proposes to take with respect
thereto; provided that in the event of any change in the Mexican GAAP used
in the preparation of such financial statements, the Borrower shall also
provide, for informational purposes only, a statement of reconciliation
conforming such financial statements to Mexican GAAP consistent with those
applied in the preparation of the financial statements referred to in
Section 5.05 and provided further that all such documents will be prepared
in English; and
(c) Together with the financials delivered pursuant to Section 7.01(b)
with respect to the fiscal quarter ended June 30, 2005 only, a schedule of
all Material Subsidiaries of the Borrower, after giving effect to the
acquisition of RMC Group p.l.c.
7.02 Notice of Default and Litigation. The Borrower will furnish to
the Administrative Agent (and the Administrative Agent will notify each
Lender):
(a) as soon as practicable and in any event within five days after the
occurrence of each Default or Event of Default continuing on the date of
such statement, a statement of the chief financial officer of the Borrower
setting forth details of such Default or Event of Default and the action
that the Borrower has taken and proposes to take with respect thereto; and
(b) promptly after the commencement thereof, notice of all litigation,
actions, investigations and proceedings before any court, Governmental
Authority or arbitrator affecting the Borrower or any of its Subsidiaries of
the type described in Section 5.06 or the receipt of written notice by the
Borrower or any of its subsidiaries of potential liability or responsibility
for violation, or alleged violation of any federal, state or local law, rule
or regulation (including Environmental Laws) the violation of which could
reasonably be expected to have a Material Adverse Effect.
7.03 Compliance with Laws and Contractual Obligations, Etc. The
Borrower will comply, and cause each of its Subsidiaries to comply, in all
material respects, with all applicable Requirements of Law (including with
respect to the licenses, approvals, certificates, permits, franchises, notices,
registrations and other governmental authorizations necessary to the ownership
of its respective properties or to the conduct of its respective business,
antitrust laws or Environmental Laws and laws with respect to social security
and pension funds obligations) and all material Contractual Obligations, except
where the failure to so comply could not reasonably be expected to have a
Material Adverse Effect.
7.04 Payment of Obligations. The Borrower will pay and discharge, and
cause each of its Subsidiaries to pay and discharge, before the same shall
become delinquent, (a) all taxes, assessments and governmental charges or
levies assessed, charged or imposed upon it or upon its property and (b) all
lawful claims that, if unpaid, might by law become a Lien upon its property,
except where the failure to make such payments or effect such discharges could
not reasonably be expected to have a Material Adverse Effect; provided,
however, that neither the Borrower nor any of its Subsidiaries shall be
required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim that is being contested in good faith and by proper
proceedings and as to which appropriate reserves are being maintained, unless
and until any Lien resulting therefrom attaches to its property and becomes
enforceable against its other creditors.
7.05 Maintenance of Insurance. The Borrower will maintain, and cause
each of its Subsidiaries to maintain, insurance with reputable insurance
companies or associations in such amounts and covering such risks as is usually
carried by companies of established reputation engaged in similar businesses
and owning similar properties in the same general areas in which the Borrower
or such Subsidiary operates.
7.06 Conduct of Business and Preservation of Corporate Existence. The
Borrower will continue to engage in business of the same general type as now
conducted by the Borrower and will preserve and maintain, and cause each of its
Material Subsidiaries to preserve and maintain, its corporate existence, rights
(charter and statutory), licenses, consents, permits, notices or approvals and
franchises deemed material to its business; provided that neither the Borrower
nor any of its Subsidiaries shall be required to maintain its corporate
existence in connection with a merger or consolidation in compliance with
Section 8.03; and provided, further that neither the Borrower nor any of its
Subsidiaries shall be required to preserve any right or franchise if the
Borrower or any such Subsidiary shall in its good faith judgment, determine
that the preservation thereof is no longer in the best interests of the
Borrower or such Subsidiary, as the case may be, and that the loss thereof
could not reasonably be expected to have a Material Adverse Effect.
7.07 Books and Records. The Borrower will keep, and cause each of its
Subsidiaries to keep, proper books of record and account, in which full and
correct entries shall be made of all financial transactions and the assets and
business of the Borrower and each such Subsidiary in accordance with Mexican
GAAP, consistently applied.
7.08 Maintenance of Properties, Etc. The Borrower will:
(a) maintain and preserve, and cause each of its Subsidiaries to
maintain and preserve, all of its properties that are used or useful in the
conduct of its business in good working order and condition, ordinary wear
and tear excepted, and
(b) maintain, preserve and protect all intellectual property and all
necessary governmental and third party approvals, franchises, licenses and
permits, material to the business of the Borrower or its Subsidiaries,
provided neither paragraph (a) nor this paragraph (b) shall prevent the
Borrower or any of its Subsidiaries from discontinuing the operation and
maintenance of any of its properties or allowing to lapse certain approvals,
licenses or permits which discontinuance is desirable in the conduct of its
business and which discontinuance could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
7.09 Use of Proceeds. The Borrower will use the proceeds of all Loans
made hereunder for general corporate purposes (including the repayment of
existing indebtedness).
7.10 Aggregate Exposure. The Borrower will ensure that at no time
shall the Aggregate Exposure of the Lenders exceed the Aggregate Committed
Amount then in effect.
7.11 Pari Passu Ranking. The Borrower will ensure that at all times
the Obligations of the Borrower and each of the Guarantors under the
Transaction Documents constitute unconditional general obligations of such
Obligor ranking in priority of payment at least pari passu with all other
senior unsecured, unsubordinated Debt of such Obligor.
7.12 Transactions with Affiliates. The Borrower will conduct, and
cause each of its Subsidiaries to conduct, all transactions otherwise permitted
under this Agreement with any of its Affiliates on terms that are commercially
reasonable and no less favorable to the Borrower or such Subsidiary than it
would obtain in a comparable arm's-length transaction with a Person not an
Affiliate.
7.13 Maintenance of Governmental Approvals. The Borrower will maintain
in full force and effect at all times all approvals of and filings with any
Governmental Authority or third Party required under applicable law for the
conduct of its business (including, without limitation, antitrust laws or
Environmental Laws) and the performance of the Obligors' obligations hereunder
and under the other Transaction Documents by the Borrower and/or the
Guarantors, as applicable, and for the validity or enforceability hereof and
thereof, except where failure to maintain any such approvals or filings could
not reasonably be expected to have a Material Adverse Effect.
7.14 Measurement Date. The Borrower shall provide to the
Administrative Agent a certificate of a Responsible Officer detailing the
latest twelve month total Consolidated Net Debt/EBITDA Ratio as soon as
practicable, but in no event later than five Business Days after the
consolidated financial statements of the Borrower and its Subsidiaries are
delivered pursuant to Section 7.01 (each such date a "Measurement Date").
7.15 Inspection of Property. At any reasonable time during normal
business hours and from time to time with at least ten Business Days prior
notice, or at any time if a Default or Event of Default shall have occurred and
be continuing, permit the Administrative Agent or any of the Lenders or any
agents or representatives thereof to examine and make abstracts from the
records and books of account of, and visit the properties of, each of the
Borrower or the Guarantors, and to discuss the affairs, finances and accounts
of the Borrower or such Guarantor with any of its officers or directors and
with its independent certified public accountants. All expenses associated with
such inspection shall be borne by the inspecting Lenders; provided that if a
Default or an Event of Default shall have occurred and be continuing, any
expenses associated with such inspection shall be borne jointly and severally
by the Borrower and the Guarantors.
ARTICLE VIII
NEGATIVE COVENANTS
------------------
The Borrower covenants and agrees that for so long as any Obligation
under this Agreement or any other Transaction Document remains unpaid or any
Lender has any Commitment hereunder:
8.01 Financial Conditions.
(a) The Borrower shall not permit the Consolidated Net Debt / EBITDA
Ratio at any time to exceed 3.5 to 1.
(b) The Borrower shall not permit the Consolidated Fixed Charge
Coverage Ratio for any period of four consecutive fiscal quarters to be less
than 2.5 to 1.
(c) Concurrently with the delivery by the Borrower of any financial
statements pursuant to Section 7.01, the Borrower shall deliver to the
Administrative Agent (with a copy to each Lender) a certificate from a
Responsible Officer containing all information and calculations necessary
for determining compliance by the Borrower with Sections 8.01 (a) and (b)
above.
8.02 Liens. The Borrower shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, create, incur, assume or permit to
exist any Lien on or with respect to any property or asset of the Borrower or
any Subsidiary, whether now owned or held or hereafter acquired, other than the
following Liens ("Permitted Liens"):
(a) Liens for taxes, assessments and other governmental charges the
payment of which is being contested in good faith by appropriate proceedings
promptly initiated and diligently conducted and for which adequate reserves
or other appropriate provision, if any, as shall be required by Mexican GAAP
shall have been made;
(b) statutory Liens of landlords and Liens of carriers, warehousemen,
mechanics and materialmen incurred in the ordinary course of business for
sums not yet due or the payment of which is being contested in good faith by
appropriate proceedings promptly initiated and diligently conducted and for
which such reserves or other appropriate provision, if any, as shall be
required by Mexican GAAP shall have been made;
(c) Liens incurred or deposits made in the ordinary course of business
in connection with workers' compensation, unemployment insurance and other
types of social security;
(d) any attachment or judgment Lien, unless the judgment it secures
shall not, within 60 days after the entry thereof, have been discharged or
execution thereof stayed pending appeal, or shall not have been discharged
within 60 days after the expiration of any such stay;
(e) Liens existing on the date of this Agreement (other than liens
with respect to the acquisition of RMC Group p.l.c.) that are described in
Schedule 8.02(e)(i) hereto and liens existing as of March 31, 2005
(including liens with respect to the acquisition of RMC Group p.l.c.) that
are described in Schedule 8.02(e)(ii) hereto;
(f) any Lien on property acquired by the Borrower after the date
hereof that was existing on the date of acquisition of such property;
provided that such Lien was not incurred in anticipation of such
acquisition, and any Lien created to secure all or any part of the purchase
price, or to secure Debt incurred or assumed to pay all or any part of the
purchase price, of property acquired by the Borrower or any of its
Subsidiaries after the date hereof; provided, further, that (A) any such
Lien permitted pursuant to this clause (f) shall be confined solely to the
item or items of property so acquired (including, in the case of any
Acquisition of a corporation through the acquisition of 51% or more of the
voting stock of such corporation, the stock and assets of any Acquired
Subsidiary or Acquiring Subsidiary) and, if required by the terms of the
instrument originally creating such Lien, other property which is an
improvement to, or is acquired for specific use with, such acquired
property; and (B) if applicable, any such Lien shall be created within nine
months after, in the case of property, its acquisition, or, in the case of
improvements, their completion;
(g) any Lien renewing, extending or refunding any Lien permitted by
clause (f) above; provided that the principal amount of Debt secured by such
Lien immediately prior thereto is not increased or the maturity thereof
reduced and such Lien is not extended to other property;
(h) any Liens created on shares of capital stock of the Borrower or
any of its Subsidiaries solely as a result of the deposit or transfer of
such shares into a trust or a special purpose vehicle (including any entity
with legal personality) of which such shares constitute the sole assets;
provided that (A) any shares of Subsidiary stock held in such trust,
corporation or entity could be sold by the Borrower; and (B) proceeds from
the deposit or transfer of such shares into such trust, corporation or
entity and from any transfer of or distributions in respect of the
Borrower's or any Subsidiary's interest in such trust, corporation or entity
are applied as provided under Section 8.04; and provided, further that such
Liens may not secure Debt of the Borrower or any Subsidiary (unless
permitted under another clause of this Section 8.02);
(i) any Liens on securities securing repurchase obligations in respect
of such securities;
(j) any Liens in respect of any Receivables Program Assets which are
or may be sold or transferred pursuant to a Qualified Receivables
Transaction; and
(k) in addition to the Liens permitted by the foregoing clauses (a)
through (j), Liens securing Debt of the Borrower and its Subsidiaries (taken
as a whole) not in excess of 5% of the Adjusted Consolidated Net Tangible
Assets of the Borrower and its Subsidiaries;
unless, in each case, the Borrower has made or caused to be made effective
provision whereby the Obligations hereunder are secured equally and ratably
with, or prior to, the Debt secured by such Liens (other than Permitted Liens)
for so long as such Debt is so secured.
8.03 Consolidations and Mergers. None of the Guarantors nor the
Borrower shall, in one or more related transactions, (x) consolidate with or
merge into any other Person or permit any other Person to merge into it or (y),
directly or indirectly, transfer, convey, sell, lease or otherwise dispose of
all or substantially all of its properties or assets to any Person, unless,
with respect to any transaction described in clause (x) or (y), immediately
after giving effect to such transaction:
(a) the Person formed by any such consolidation or merger, if it is
not the Borrower or such Guarantor, or the Person that acquires by transfer,
conveyance, sale, lease or other disposition all or substantially all of the
properties and assets of the Borrower or such Guarantor (any such Person, a
"Successor") (i) shall be a corporation organized and validly existing under
the laws of its place of incorporation, which in the case of a Successor to
the Borrower shall be Mexico, the United States, Canada, France, Belgium,
Germany, Italy, Luxembourg, the Netherlands, Portugal, Spain, Switzerland or
the United Kingdom, or any political subdivision thereof, (ii) in the case
of a Successor to the Borrower, shall expressly assume, pursuant to a
written agreement in form and substance satisfactory to the Required
Lenders, the Obligations of the Borrower pursuant to this Agreement and the
performance of every covenant on part of the Borrower to be performed and
observed and (iii) in the case of a Successor to any Guarantor, shall
expressly assume, pursuant to a written agreement in form and substance
satisfactory to the Required Lenders, the performance of every covenant of
this Agreement on part of such Guarantor to be performed and observed;
(b) in the case of any such transaction involving the Borrower or any
Guarantor, the Borrower or such Guarantor, or the Successor of any thereof,
as the case may be, shall expressly agree to indemnify each Lender and the
Administrative Agent against any tax, levy, assessment or governmental
charge payable by withholding or deduction thereafter imposed on such Lender
and/or the Administrative Agent solely as a consequence of such transaction
with respect to payments under the Transaction Documents;
(c) immediately after giving effect to such transaction, including for
purposes of this clause (c) the substitution of any Successor to the
Borrower for the Borrower or the substitution of any Successor to a
Guarantor for such Guarantor and treating any Debt or Lien incurred by the
Borrower or any Successor to the Borrower, or by a Guarantor of the Borrower
or any Successor to such Guarantor, as a result of such transactions as
having been incurred at the time of such transaction, no Default or Event of
Default shall have occurred and be continuing; and
(d) the Borrower shall have delivered to the Administrative Agent an
officer's certificate and an opinion of counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a written
agreement is required in connection with such transaction, such written
agreement comply with the relevant provisions of this Article VIII and that
all conditions precedent provided for in this Agreement relating to such
transaction have been complied with.
8.04 Sales of Assets, Etc. The Borrower will not, and will not permit
any of its Material Subsidiaries to, sell, lease or otherwise dispose of any of
its assets (including the capital stock of any Subsidiary), other than (a)
inventory, trade receivables and assets surplus to the needs of the business of
the Borrower or any Subsidiary sold in the ordinary course of business and (b)
assets not used, usable or held for use in connection with cement operations
and related operations, unless the proceeds of the sale of such assets are
retained by the Borrower or such Subsidiary, as the case may be, and, as
promptly as practicable after such sale (but in any event within 180 days of
such sale), the proceeds are applied to (i) expenditures for property, plant
and equipment usable in the cement industry or related industries; (ii) the
repayment of senior Debt of the Borrower or any of its Subsidiaries, whether
secured or unsecured; or (iii) investments in companies engaged in the cement
industry or related industries.
8.05 Change in Nature of Business. The Borrower shall not make, or
permit any of its Material Subsidiaries to make, any material change in the
nature of its business as carried on at the date hereof.
8.06 Margin Regulations. The Borrower shall not use any part of the
proceeds of the Loans for any purpose which would result in any violation
(whether by the Borrower, the Administrative Agent or the Lenders) of
Regulation T, U or X of the Federal Reserve Board or to extend credit to others
for any such purpose. The Borrower shall not engage in, or maintain as one of
its important activities, the business of extending credit for the purpose of
purchasing or carrying any margin stock (as defined in such regulations).
ARTICLE IX
OBLIGATIONS OF GUARANTORS
-------------------------
9.01 The Guaranty. Each of the Guarantors jointly and severally hereby
unconditionally and irrevocably guarantees (as a primary obligor and not merely
as surety) payment in full as provided herein of all Obligations payable by the
Borrower to each Lender, the Administrative Agent and the Joint Bookrunners
under this Agreement and the other Transaction Documents and the Fee Letter, as
and when such amounts become payable (whether at stated maturity, by
acceleration or otherwise).
9.02 Nature of Liability. The obligations of the Guarantors hereunder
are guarantees of payment and shall remain in full force and effect until all
Obligations of the Borrower have been validly, finally and irrevocably paid in
full and all Commitments have been terminated, and shall not be affected in any
way by the absence of any action to obtain such amounts from the Borrower or by
any variation, extension, waiver, compromise or release of any or all
Obligations from time to time therefor. Each Guarantor waives all requirements
as to promptness, diligence, presentment, demand for payment, protest and
notice of any kind with respect to this Agreement and the other Transaction
Documents.
9.03 Unconditional Obligations. Notwithstanding any contrary
principles under the laws of any jurisdiction other than the State of New York,
the obligations of each of the Guarantors hereunder shall be unconditional,
irrevocable and absolute and, without limiting the generality of the foregoing,
shall not be impaired, terminated, released, discharged or otherwise affected
by the following:
(a) the existence of any claim, set-off or other right which either of
the Guarantors may have at any time against the Borrower, the Administrative
Agent, any Lenders or any other Person, whether in connection with this
transaction or with any unrelated transaction;
(b) any invalidity or unenforceability of this Agreement or any other
Transaction Document relating to or against the Borrower or either of the
Guarantors for any reason;
(c) any provision of applicable law or regulation purporting to
prohibit the payment by the Borrower of any amount payable by the Borrower
under this Agreement or any of the other Transaction Documents or the
payment, observance, fulfillment or performance of any other Obligations;
(d) any change in the name, purposes, business, capital stock
(including the ownership thereof) or constitution of the Borrower;
(e) any amendment, waiver or modification of any Transaction Document
in accordance with the terms hereof and thereof; or
(f) any other act or omission to act or delay of any kind by the
Borrower, the Administrative Agent, the Lenders or any other Person or any
other circumstance whatsoever which might otherwise constitute a legal or
equitable discharge of or defense to either of the Guarantors' obligations
hereunder.
9.04 Independent Obligation. The obligations of each of the Guarantors
hereunder are independent of the Borrower's obligations under the Transaction
Documents and of any guaranty or security that may be obtained for the
Obligations. The Administrative Agent and the Lenders may neglect or forbear to
enforce payment hereunder, under any Transaction Document or under any guaranty
or security, without in any way affecting or impairing the liability of each
Guarantor hereunder. The Administrative Agent or the Lenders shall not be
obligated to exhaust recourse or take any other action against the Borrower or
under any agreement to purchase or security which the Administrative Agent or
the Lenders may hold before being entitled to payment from the Guarantors of
the obligations hereunder or proceed against or have resort to any balance of
any deposit account or credit on the books of the Administrative Agent or the
Lenders in favor of the Borrower or each of the Guarantors. Without limiting
the generality of the foregoing, the Administrative Agent or the Lenders shall
have the right to bring suit directly against either of the Guarantors, either
prior or subsequent to or concurrently with any lawsuit against, or without
bringing suit against, the Borrower and/or the other Guarantor.
9.05 Waiver of Notices. Each of the Guarantors hereby waives notice of
acceptance of this ARTICLE IX and notice of any liability to which it may
apply, and waives presentment, demand for payment, protest, notice of dishonor
or nonpayment of any such liability, suit or the taking of other action by the
Administrative Agent or the Lenders against, and any other notice, to the
Guarantors.
9.06 Waiver of Defenses. To the extent permitted by New York law and
notwithstanding any contrary principles under the laws of any other
jurisdiction, each of the Guarantors hereby waives any and all defenses to
which it may be entitled, whether at common law, in equity or by statute which
limits the liability of, or exonerates, guarantors or which may conflict with
the terms of this ARTICLE IX, including failure of consideration, breach of
warranty, statute of frauds, merger or consolidation of the Borrower, statute
of limitations, accord and satisfaction and usury. Without limiting the
generality of the foregoing, each of the Guarantors consents that, without
notice to such Guarantor and without the necessity for any additional
endorsement or consent by such Guarantor, and without impairing or affecting in
any way the liability of such Guarantor hereunder, the Administrative Agent and
the Lenders may at any time and from time to time, upon or without any terms or
conditions and in whole or in part, (a) change the manner, place or terms of
payment of, and/or change or extend the time or payment of, renew or alter, any
of the Obligations, any security therefor, or any liability incurred directly
or indirectly in respect thereof, and this ARTICLE IX shall apply to the
Obligations as so changed, extended, renewed or altered; (b) exercise or
refrain from exercising any right against the Borrower or others (including the
Guarantors) or otherwise act or refrain from acting, (c) settle or compromise
any of the Obligations, any security therefor or any liability (including any
of those hereunder) incurred directly or indirectly in respect thereof or
hereof, and may subordinate the payment of all or any part thereof to the
payment of any such liability (whether due or not) of the Borrower to creditors
of the Borrower other than the Administrative Agent and the Lenders and the
Guarantors, (d) apply any sums by whomsoever paid or howsoever realized, other
than payments of the Guarantors of the Obligations, to any liability or
liabilities of the Borrower under the Transaction Documents or any instruments
or agreements referred to herein or therein, to the Administrative Agent and
the Lenders regardless of which of such liability or liabilities of the
Borrower under the Transaction Documents or any instruments or agreements
referred to herein or therein remain unpaid; (e) consent to or waive any breach
of, or any act, omission or default under the Obligations or any of the
instruments or agreements referred to in this Agreement and the other
Transaction Documents, or otherwise amend, modify or supplement the Obligations
or any of such instruments or agreements, including the Transaction Documents;
and/or (f) request or accept other support of the Obligations or take and hold
any security for the payment of the Obligations or the obligations of the
Guarantors under this ARTICLE IX, or allow the release, impairment, surrender,
exchange, substitution, compromise, settlement, rescission or subordination
thereof. Furthermore, each of the Guarantors hereby waives to the extent
permitted by law any right to which it may be entitled to under Articles 2830,
2836, 2842, 2845, 2846, 2848 and 2849 of the Mexican Federal Civil Code and
related Articles contained in the Civil Codes of the States in Mexico. The
Guarantors further expressly waive the benefits of order, excusion y division
contained in Articles 2814, 2815, 2817, 2818, 2820, 2821, 2822, 2823, 2837,
2838, 2840, 2841 and other related Articles of the Mexican Federal Civil Code
and related Articles contained in other Civil Codes of the States of Mexico.
The Guarantors hereby represent that the terms of each such provision of each
such civil code are known in form and substance to each such Guarantor.
9.07 Bankruptcy and Related Matters.
(a) So long as any of the Obligations remain outstanding, each of the
Guarantors shall not, without the prior written consent of the
Administrative Agent (acting with the consent of the Required Lenders),
commence or join with any other Person in commencing any bankruptcy,
liquidation, reorganization, concurso mercantil or insolvency proceedings
of, or against, the Borrower.
(b) If acceleration of the time for payment of any amount payable by
the Borrower under this Agreement or the Notes is stayed upon the
insolvency, bankruptcy, reorganization, concurso mercantil or any similar
event of the Borrower or otherwise, all such amounts otherwise subject to
acceleration under the terms of this Agreement shall nonetheless be payable
by the Guarantors hereunder forthwith on demand by the Administrative Agent
made at the request of the Lenders.
(c) The obligations of each of the Guarantors under this ARTICLE IX
shall not be reduced, limited, impaired, discharged, deferred, suspended or
terminated by any proceeding or action, voluntary or involuntary, involving
the bankruptcy, insolvency, concurso mercantil, receivership,
reorganization, marshalling of assets, assignment for the benefit of
creditors, readjustment, liquidation or arrangement of the Borrower or
similar proceedings or actions or by any defense which the Borrower may have
by reason of the order, decree or decision of any court or administrative
body resulting from any such proceeding or action. Without limiting the
generality of the foregoing, the Guarantors' liability shall extend to all
amounts and obligations that constitute the Obligations and would be owed by
the Borrower but for the fact that they are unenforceable or not allowable
due to the existence of any such proceeding or action.
(d) Each of the Guarantors acknowledges and agrees that any interest
on any portion of the Obligations which accrues after the commencement of
any proceeding or action referred to above in Section 9.07(c) (or, if
interest on any portion of the Obligations ceases to accrue by operation of
law by reason of the commencement of said proceeding or action, such
interest as would have accrued on such portion of the Obligations if said
proceedings or actions had not been commenced) shall be included in the
Obligations, it being the intention of the Guarantors, the Administrative
Agent, and the Lenders that the Obligations which are to be guaranteed by
the Guarantors pursuant to this ARTICLE IX shall be determined without
regard to any rule of law or order which may relieve the Borrower of any
portion of such Obligations. The Guarantors will take no action to prevent
any trustee in bankruptcy, receiver, debtor in possession, assignee for the
benefit of creditors or similar person from paying the Administrative Agent,
or allowing the claim of the Administrative Agent, for the benefit of the
Administrative Agent, and the Lenders, in respect of any such interest
accruing after the date of which such proceeding is commenced, except to the
extent any such interest shall already have been paid by the Guarantors.
(e) Notwithstanding anything to the contrary contained herein, if all
or any portion of the Obligations are paid by or on behalf of the Borrower,
the obligations of the Guarantors hereunder shall continue and remain in
full force and effect or be reinstated, as the case may be, in the event
that all or any part of such payment(s) are rescinded or recovered, directly
or indirectly, from the Administrative Agent and/or the Lenders as a
preference, preferential transfer, fraudulent transfer or otherwise, and any
such payments which are so rescinded or recovered shall constitute
Obligations for all purposes under this ARTICLE IX, to the extent permitted
by applicable law.
9.08 No Subrogation. Notwithstanding any payment or payments made by
any of the Guarantors hereunder or any set-off or application of funds of any
of the Guarantors by the Administrative Agent or any Lender, no Guarantor shall
be entitled to be subrogated to any of the rights of the Administrative Agent
or any Lender against the Borrower or any other Guarantor or any collateral
security or guarantee or right of offset held by the Administrative Agent or
any Lender for the payment of the Obligations, nor shall any Guarantor seek or
be entitled to seek any contribution or reimbursement from the Borrower or any
other Guarantor in respect of payments made by such Guarantor hereunder, until
all amounts owing to the Administrative Agent and the Lenders by the Borrower
on account of the Obligations shall have been indefeasibly paid in full in
cash. If any amount shall be paid to any Guarantor on account of such
subrogation rights at any time when all of the Obligations shall not have been
indefeasibly paid in full in cash, such amount shall be held by such Guarantor
in trust for the Administrative Agent and the Lenders, segregated from other
funds of such Guarantor, and shall, forthwith upon receipt by such Guarantor,
be turned over to the Administrative Agent in the exact form received by such
Guarantor (duly indorsed by such Guarantor to the Administrative Agent, if
required), to be applied against the Obligations, whether matured or unmatured,
in such order as the Administrative Agent may determine.
9.09 Right of Contribution. Subject to Section 9.08, each Guarantor
hereby agrees that to the extent that a Guarantor shall have paid more than its
proportionate share of any payment made hereunder, such Guarantor shall be
entitled to seek and receive contribution from and against any other Guarantor
hereunder who has not paid its proportionate share of such payment. The
provisions of this Section 9.09 shall in no respect limit the obligations and
liabilities of any Guarantor to the Administrative Agent, the Joint Bookrunners
and the Lenders, and each Guarantor shall remain liable to the Administrative
Agent, the Joint Bookrunners and the Lenders for the full amount guaranteed by
such Guarantor hereunder.
9.10 General Limitation on Guaranty. In any action or proceeding
involving any applicable corporate law, or any applicable bankruptcy,
insolvency, reorganization, concurso mercantil or other law affecting the
rights of creditors generally, if the obligations of any Guarantor under this
Section 9.10 would otherwise, taking into account the provisions of Section
9.09, be held or determined to be void, invalid or unenforceable, or
subordinated to the claims of any other creditors, on account of the amount of
its liability under Section 9.01, then, notwithstanding any other provision
hereof to the contrary, the amount of such liability shall, without any further
action by such Guarantor, any Lender, the Administrative Agent or any other
Person, be automatically limited and reduced to the highest amount that is
valid and enforceable and not subordinated to the claims of other creditors as
determined in such action or proceeding.
9.11 Covenants of the Guarantors. Each Guarantor hereby covenants and
agrees that, so long as any Obligations under this Agreement and any other
Transaction Document remains unpaid or any Lender has any Commitment hereunder,
it shall comply with the covenants contained or incorporated by reference in
this Agreement to the extent applicable to it as a Subsidiary of the Borrower.
ARTICLE X
EVENTS OF DEFAULT
-----------------
10.01 Events of Default. The following specified events shall
constitute "Events of Default" for the purposes of this Agreement:
(a) Payment Defaults. The Borrower shall (i) fail to pay any principal
of any Loan when due in accordance with the terms hereof or (ii) fail to pay
any interest on any Loan, any fee or any other amount payable under this
Agreement or any Note within three Business Days after the same becomes due
and payable; or
(b) Representation and Warranties. Any representation or warranty made
by the Borrower herein or in any other Transaction Document or made by
either Guarantor herein or which is contained in any certificate, document
or financial or other statement furnished at any time under or in connection
with this Agreement or any other Transaction Document, as applicable, shall
prove to have been incorrect in any material respect on or as of the date
made if such failure shall remain unremedied for 30 days after the earlier
of the date on which (i) the chief financial officer of the Borrower or such
Guarantor, as the case may be, becomes aware of such incorrectness or (ii)
written notice thereof shall have been given to the Borrower by the
Administrative Agent; or
(c) Specific Defaults. The Borrower or a Guarantor, as applicable,
shall fail to perform or observe any term, covenant or agreement contained
in Section 7.01, 7.02(a), 7.06 (with respect to the Borrower's and each
Guarantor's existence only), 7.11 or 7.15 or ARTICLE VIII; or
(d) Other Defaults. The Borrower or a Guarantor, as applicable, shall
fail to perform or observe any term, covenant or agreement contained in this
Agreement, the Notes, the Fee Letter, any Notice of Borrowings, any
certificates, waivers, or any other agreement delivered pursuant to this
Agreement (other than as provided in paragraphs (a) and (c) above) and such
failure shall continue unremedied for a period of 30 days after the earlier
of the date on which (i) the chief financial officer of the Borrower becomes
aware of such failure or (ii) written notice thereof shall have been given
to the Borrower by the Administrative Agent at the request of any Lender; or
(e) Defaults under Other Agreements. The occurrence of a default or
event of default under any indenture, agreement or instrument relating to
any Material Debt of the Borrower or any of its Subsidiaries, and (unless
any principal amount of such Material Debt is otherwise due and payable)
such default or event of default results in the acceleration of the maturity
of any principal amount of such Material Debt prior to the date on which it
would otherwise become due and payable; or
(f) Voluntary Bankruptcy. The Borrower or any Material Subsidiary
shall commence a voluntary case or other proceeding seeking liquidation,
reorganization, concurso mercantil or other relief with respect to itself or
its debts under any bankruptcy, insolvency, reorganization or other similar
law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, or shall consent to any such relief or to
the appointment of or taking possession by any such official in an
involuntary case or other proceeding commenced against it, or shall make a
general assignment for the benefit of creditors, or shall fail generally to
pay its debts as they become due, or shall take any corporate action to
authorize any of the foregoing or the equivalent thereof under Mexican law
(including the Ley de Concursos Mercantiles); or
(g) Involuntary Bankruptcy. An involuntary case or other proceeding
shall be commenced against the Borrower or any Material Subsidiary seeking
liquidation, reorganization or other relief with respect to it or its debts
under any bankruptcy, insolvency, concurso mercantil or other similar law
now or hereafter in effect (including but not limited to the Ley de
Concursos Mercantiles) or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any substantial
part of its property, and such involuntary case or other proceeding shall
remain undismissed and unstayed for a period of 60 consecutive days; or an
order for relief shall be entered against the Borrower or any Material
Subsidiaries under any bankruptcy, insolvency suspension de pagos or other
similar law as now or hereafter in effect; or
(h) Monetary Judgment. A final judgment or judgments or order or
orders not subject to further appeal for the payment of money in an
aggregate amount in excess of U.S.$50,000,000 shall be rendered against the
Borrower and/or any of its one or more Subsidiaries of the Borrower that are
neither discharged nor bonded in full within 30 days thereafter; or
(i) Pari Passu. The Obligations of the Borrower under this Agreement
or of any Guarantor under this Agreement shall fail to rank at least pari
passu with all other senior unsecured Debt of the Borrower or such
Guarantor, as the case may be; or
(j) Validity of Agreement. The Borrower shall contest the validity or
enforceability of any Transaction Document or shall deny generally the
liability of the Borrower under any Transaction Documents or either
Guarantor shall contest the validity of or the enforceability of their
guarantee hereunder or any obligation of either Guarantor under ARTICLE IX
hereof shall not be (or is claimed by either Guarantor not to be) in full
force and effect;
(k) Governmental Authority. Any governmental or other consent,
license, approval, permit or authorization which is now or may in the future
be necessary or appropriate under any applicable Requirement of Law for the
execution, delivery, or performance by the Borrower or either Guarantor of
any Transaction Document to which it is a party or to make such Transaction
Document legal, valid, enforceable and admissible in evidence shall not be
obtained or shall be withdrawn, revoked or modified or shall cease to be in
full force and effect or shall be modified in any manner that would have an
adverse effect on the rights or remedies of the Administrative Agent or the
Lenders; or
(l) Expropriation, Etc. Any Governmental Authority shall condemn,
nationalize, seize or otherwise expropriate all or any substantial portion
of the property of, or capital stock issued or owned by, the Borrower or
either Guarantor or take any action that would prevent the Borrower or
either Guarantor from performing its obligations under this Agreement, the
Notes, the Fee Letter, any Notice of Borrowings, any certificates, waivers,
or any other agreement delivered pursuant to this Agreement; or
(m) Moratorium; Availability of Foreign Exchange. A moratorium shall
be agreed or declared in respect of any Debt of the Borrower or either
Guarantor or any restriction or requirement not in effect on the date hereof
shall be imposed, whether by legislative enactment, decree, regulation,
order or otherwise, which limits the availability or the transfer of foreign
exchange by the Borrower or either Guarantor for the purpose of performing
any material obligation under this Agreement, the Notes, the Fee Letter, any
Notice of Borrowings, any certificates, waivers, or any other agreement
delivered pursuant to this Agreement; or
(n) Change of Ownership or Control. The beneficial ownership (within
the meaning of Rule 13d-3 promulgated by the Securities and Exchange
Commission under the Securities Exchange Act of 1934, as amended) of 20% or
more in voting power of the outstanding voting stock of the Borrower or
either Guarantor is acquired by any Person; provided that the acquisition of
beneficial ownership of capital stock of the Borrower or either Guarantor by
Lorenzo H. Zambrano or any member of his immediate family shall not
constitute an Event of Default.
10.02 Remedies. If any Event of Default has occurred and is
continuing, the Administrative Agent shall, at the request of, or may, with the
consent of, the Required Lenders:
terminate the Commitments and/or declare by notice to the Borrower the
principal amount of all outstanding Loans to be forthwith due and payable,
whereupon such principal amount, together with accrued interest thereon and
any fees and all other Obligations accrued hereunder, shall become
immediately due and payable, without presentment, demand, protest or other
notice of any kind, all of which are hereby expressly waived; provided,
however, that in the case of any Event of Default specified in Section
10.01(f) or (g), without notice or any other act by the Lenders, the
Commitments shall be automatically terminated and the Loans (together with
accrued interest thereon) and all other Obligations of the Borrower
hereunder shall become immediately due and payable without presentment,
demand, protest or other notice of any kind, all of which are hereby waived
by the Borrower;
10.03 Notice of Default. The Administrative Agent shall give notice to
the Borrower of any event occurring under Section 10.01(a), (b), (c) or (d)
promptly upon being requested to do so by any Lender and shall thereupon notify
all the Lenders thereof.
10.04 Default Interest. In the event of default by the Borrower in the
payment on the due date of any sum due under this Agreement, the Borrower shall
pay interest on demand on such sum from the date of such default to the day of
actual receipt of such sum by the Administrative Agent (as well after as before
judgment) at the rate specified in Section 2.02(d). So long as the default
continues, the default interest rate shall be recalculated on the same basis at
intervals of such duration as the Administrative Agent may select, provided
that the amount of unpaid interest at the above rate accruing during the
preceding period (or such longer period as may be the shortest period permitted
by applicable law for the capitalization of interest) shall be added to the
amount in respect of which the Borrower is in default.
ARTICLE XI
THE ADMINISTRATIVE AGENT
------------------------
11.01 Appointment and Authorization. Each Lender hereby irrevocably
designates and appoints Barclays Bank PLC as the Administrative Agent of such
Lender under this Agreement, and each Lender hereby irrevocably authorizes the
Administrative Agent to take such action on its behalf under the provisions of
this Agreement and each other Transaction Document and to exercise such powers
and perform such duties as are expressly delegated to the Administrative Agent
by the terms of this Agreement or any other Transaction Document, together with
such other powers as are reasonably incidental thereto. Notwithstanding any
provision to the contrary contained elsewhere in this Agreement or in any other
Transaction Document, the Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein, nor shall the
Administrative Agent have or be deemed to have any fiduciary relationship with
any Lender, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or any other
Transaction Document or otherwise exist against the Administrative Agent.
11.02 Delegation of Duties. The Administrative Agent may execute any
of its duties under this Agreement or any other Transaction Document by or
through agents, employees or attorneys-in-fact and shall be entitled to advice
of counsel concerning all matters pertaining to such duties. The Administrative
Agent shall not be responsible for the negligence or misconduct of any agent or
attorney-in-fact that it selects with reasonable care.
11.03 Liability of Administrative Agent. Neither the Administrative
Agent nor any of its officers, directors, employees, agents, attorneys-in-fact
or Affiliates shall be (a) liable for any action taken or omitted to be taken
by it or any such Person under or in connection with this Agreement or any
other Transaction Document or the transactions contemplated hereby (except for
its or such Person's own gross negligence or willful misconduct), or (b)
responsible in any manner to any of the Lenders for any recital, statement,
representation or warranty made by the Borrower, the Guarantors or any officer
thereof contained in this Agreement or in any other Transaction Document, or in
any certificate, report, statement or other document referred to or provided
for in, or received by the Administrative Agent under or in connection with,
this Agreement or any other Transaction Document, or for the validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Transaction Document, or for any failure of the Borrower, the
Guarantors or any other party to any Transaction Document to perform its
obligations hereunder or thereunder. Except as otherwise expressly stated
herein, the Administrative Agent shall not be under any obligation to any
Lender to ascertain or to inquire as to the observance or performance of any of
the agreements contained in, or conditions of, this Agreement or any other
Transaction Document, or to inspect the properties, books or records of the
Borrower or the Guarantors.
11.04 Reliance by Administrative Agent.
(a) The Administrative Agent shall be entitled to rely, and shall be
fully protected in relying, upon any writing, resolution, notice, consent,
certificate, affidavit, letter, telegram, facsimile, telex or teletype
message, statement, order or other document or telephone conversation
believed by it in good faith to be genuine and correct and to have been
signed, sent or made by the proper Person or Persons, and upon advice and
statements of legal counsel, independent accountants and other experts
selected by the Administrative Agent. The Administrative Agent shall be
fully justified in failing or refusing to take any action under this
Agreement or any other Transaction Document unless it shall first receive
such advice or concurrence of the Required Lenders as it deems appropriate
and, if it so requests, it shall first be indemnified to its satisfaction by
the Lenders against any and all liability and expense which may be incurred
by it by reason of failing to take, taking or continuing to take any such
action. The Administrative Agent shall in all cases be fully protected in
acting, or in refraining from acting, under this Agreement or any other
Transaction Document in accordance with a request or consent of the Required
Lenders (or when expressly required hereby, all the Lenders) and such
request and any action taken or failure to act pursuant thereto shall be
binding upon all the Lenders.
(b) For purposes of determining compliance with the conditions
specified in Section 4.01, each Lender that has executed this Agreement
shall be deemed to have consented to, approved or accepted or to be
satisfied with, each document or other matter sent by the Administrative
Agent to such Lender for consent, approval, acceptance or satisfaction on or
before the Effective Date.
11.05 Notice of Default. The Administrative Agent shall not be deemed
to have knowledge or notice of the occurrence of any Default or Event of
Default (except with respect to defaults in the payment of principal, interest
and fees required to be paid to the Administrative Agent for the account of the
Lenders) unless the Administrative Agent shall have received written notice
from a Lender or the Borrower referring to this Agreement and describing such
Default or Event of Default and stating that such notice is a "Notice of
Default". The Administrative Agent shall promptly notify the Lenders of its
receipt of any such notice. The Administrative Agent shall take such action
with respect to such Default or Event of Default as may be requested by the
Required Lenders; provided, however, that unless and until the Administrative
Agent has received any such request, the Administrative Agent may (but shall
not be obligated to) take such action, or refrain from taking such action, with
respect to such Default or Event of Default as it shall deem advisable or in
the best interest of the Lenders.
11.06 Credit Decision. Each Lender expressly acknowledges that neither
the Administrative Agent nor any of its Affiliates, officers, directors,
employees, agents or attorneys-in-fact has made any representation or warranty
to it, and that no act by the Administrative Agent hereafter taken, including
any review of the affairs of the Borrower, the Guarantors, or any of their
Affiliates, shall be deemed to constitute any representation or warranty by the
Administrative Agent to any Lender. Each Lender acknowledges to the
Administrative Agent that it has, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, prospects, operations, property, financial and
other condition and creditworthiness of the Borrower, the Guarantors, and their
Affiliates and all applicable Lender regulatory laws relating to the
transactions contemplated hereby, and made its own decision to enter into this
Agreement. Each Lender also acknowledges that it will, independently and
without reliance upon the Administrative Agent or any other Lender, and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in taking or
not taking action under this Agreement and the other Transaction Documents, and
to make such investigations as it deems necessary to inform itself as to the
business, prospects, operations, property, financial and other condition and
creditworthiness of the Borrower or the Guarantors. Except for notices, reports
and other documents expressly herein required to be furnished to the Lenders by
the Administrative Agent, the Administrative Agent shall not have any duty or
responsibility to provide any Lender with any credit or other information
concerning the business, prospects, operations, property, financial and other
condition or creditworthiness of the Borrower or the Guarantors which may come
into the possession of the Administrative Agent or any of its Affiliates,
officers, directors, employees, agents or attorneys-in-fact.
11.07 Indemnification. Whether or not the transactions contemplated
hereby are consummated, the Lenders agree to indemnify upon demand the
Administrative Agent and its Affiliates, directors, officers, agents and
employees (to the extent not reimbursed by the Borrower and without limiting
the obligation of the Borrower to do so), ratably according to the respective
amounts of their Commitment Percentages in effect on the date the cause for
indemnification arose, from and against any and all claims, liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind whatsoever which may at any time
(including at any time following the payment of the Obligations or the
Termination Date) be imposed on, incurred by or asserted against the
Administrative Agent (or any of its Affiliates, directors, officers, agents and
employees) in any way relating to or arising out of this Agreement or any other
Transaction Document, or any documents contemplated by or referred to herein or
the transactions contemplated hereby or any action taken or omitted by the
Administrative Agent under or in connection with any of the foregoing;
provided, however, that no Lender shall be liable for the payment of any
portion of such claims, liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements to the extent it
results from the gross negligence or willful misconduct of the Administrative
Agent or its Affiliates, directors, officers, agents or employees. Without
limitation of the foregoing, each Lender shall reimburse the Administrative
Agent upon demand for its ratable share of any reasonable and documented costs
or out-of-pocket expenses (including legal fees) incurred by the Administrative
Agent in connection with the preparation, execution, modification, amendment or
enforcement (whether through negotiations, legal proceedings or otherwise) of,
or legal advice in respect of rights or responsibilities under, this Agreement,
any other Transaction Document, or any document contemplated by or referred to
herein, to the extent that the Administrative Agent is not reimbursed for such
expenses by or on behalf of the Borrower.
11.08 Administrative Agent in Individual Capacity. Barclays Bank PLC
may make loans to, issue letters of credit for the account of, accept deposits
from and generally engage in any kind of banking, trust, financial advisory,
underwriting or other business with the Borrower, the Guarantors or any of
their Affiliates as though Barclays Bank PLC were not the Administrative Agent
hereunder and without notice to or consent of the Lenders. The Lenders
acknowledge that, pursuant to such activities, Barclays Bank PLC or its
Affiliates may receive information regarding the Borrower, the Guarantors and
their Affiliates (including information that may be subject to confidentiality
obligations in favor of the Borrower or the Guarantors) and acknowledge that
the Administrative Agent shall be under no obligation to provide such
information to them. With respect to the Obligations, Barclays Bank PLC shall
have the same rights and powers under this Agreement as any other Lender and
may exercise the same as though it were not the Administrative Agent, and the
terms "Lender" and "Lenders" include Barclays Bank PLC in its individual
capacity.
11.09 Successor Administrative Agent. The Administrative Agent may,
and at the request of the Required Lenders shall, resign as Administrative
Agent upon 30 days' notice to the Lenders and the Borrower. If the
Administrative Agent resigns under this Agreement, the Required Lenders shall
appoint from among the Lenders a successor agent for the Lenders, which
appointment shall be subject to the approval of the Borrower, such approval not
to be unreasonably withheld (unless a Default or Event of Default shall have
occurred and be continuing, in which case such approval shall not be required).
If no successor agent is appointed prior to the effective date of the
resignation of the Administrative Agent, the Administrative Agent may appoint,
after consulting with the Lenders and the Borrower, a successor agent from
among the Lenders. Upon the acceptance of its appointment as successor agent
hereunder, such successor agent shall succeed to all the rights, powers and
duties of the retiring Administrative Agent and the term "Administrative Agent"
shall mean such successor agent effective upon its appointment, and the
retiring Administrative Agent's rights, powers and duties as Administrative
Agent shall be terminated, without any other or further act on the part of such
retiring Administrative Agent. After any retiring Administrative Agent's
resignation hereunder as Administrative Agent, the provisions of this ARTICLE
XI and Sections 13.04 and 13.05 shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Administrative Agent under this
Agreement. If no successor Administrative Agent has accepted the appointment as
Administrative Agent by the date which is 30 days following a retiring
Administrative Agent's notice of resignation, the retiring Administrative
Agent's resignation shall nevertheless thereupon become effective and either
the Borrower or the retiring Administrative Agent may, on behalf of the
Lenders, appoint a successor Administrative Agent, which shall be a commercial
bank organized or licensed under the laws of the United States or of any State
thereof and having a combined capital and surplus of at least U.S.$400,000,000.
ARTICLE XII
THE JOINT BOOKRUNNERS
---------------------
12.01 The Joint Bookrunners. The Borrower hereby confirms the
designation of Barclays Capital, the Investment Banking Division of Barclays
Bank PLC, and Citigroup Global Markets Inc., as arrangers and Joint Bookrunners
for this revolving credit facility. The Joint Bookrunners assume no
responsibility or obligation hereunder for servicing, enforcement or collection
of the Obligations, or any duties as agent for the Lenders. The title "Joint
Bookrunner" or "Book-runner" implies no fiduciary responsibility on the part of
the Joint Bookrunners to the Administrative Agent, or the Lenders and the use
of either such title does not impose on the Joint Bookrunners any duties or
obligations under this Agreement except as may be expressly set forth herein.
12.02 Liability of Joint Bookrunners. Neither the Joint Bookrunners
nor any of their respective officers, directors, employees, agents,
attorneys-in-fact or Affiliates shall be (a) liable for any action lawfully
taken or omitted to be taken by them or any such Person under or in connection
with this Agreement or any other Transaction Document (except for such Joint
Bookrunner's own gross negligence or willful misconduct), or (b) responsible in
any manner to any Lender for any recital, statement, representation or warranty
made by the Borrower or any officer thereof, contained in this Agreement or in
any other Transaction Document, or in any certificate, report, statement or
other document referred to or provided for in, or received by the Arrangers
under or in connection with, this Agreement or any other Transaction Document
or for the validity, effectiveness, genuineness, enforceability or sufficiency
of this Agreement or any other Transaction Document or for any failure of the
Borrower or any other party to any other Transaction Document to perform its
obligations hereunder or thereunder. Except as otherwise expressly stated
herein, the Joint Bookrunners shall not be under any obligation to any Lender
to ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement or any other
Transaction Document, or to inspect the properties, books or records of the
Borrower.
12.03 Joint Bookrunners in their respective Individual Capacities.
Each of Barclays Capital, the Investment Banking Division of Barclays Bank PLC
and its Affiliates, and Citigroup Global Markets Inc. and its Affiliates may
make loans to, accept deposits from and generally engage in any kind of
business with the Borrower or any of its Affiliates as though they were not the
Joint Bookrunners hereunder.
12.04 Credit Decision. Each Lender expressly acknowledges that neither
the Joint Bookrunners nor any of their respective Affiliates, officers,
directors, employees, agents or attorneys-in-fact have made any representation
or warranty to it, and that no act by the Joint Bookrunners hereafter taken,
including any review of the affairs of the Borrower or the Guarantors, shall be
deemed to constitute any representation or warranty by the Joint Bookrunners to
any Lender. Each Lender acknowledges to the Joint Bookrunners that it has,
independently and without reliance upon the Joint Bookrunners, and based on
such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, prospects, operations,
property, financial and other condition and creditworthiness of the Borrower or
the Guarantors and their Affiliates and made its own decision to enter into
this Agreement. Each Lender also acknowledges that it will, independently and
without reliance upon the Joint Bookrunners, 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 the other Transaction Documents, and to make such
investigations as it deems necessary to inform itself as to the business,
prospects, operations, property, financial and other condition and
creditworthiness of the Borrower or the Guarantors. The Joint Bookrunners shall
not have any duty or responsibility to provide any Lender with any information
concerning the business, prospects, operations, property, financial and other
condition or creditworthiness of the Borrower which may come into the
possession of the Joint Bookrunners or any of their respective officers,
directors, employees, agents, attorneys-in-fact or Affiliates.
ARTICLE XIII
MISCELLANEOUS
-------------
13.01 Notices.
(a) Except as otherwise expressly provided herein, all notices,
requests, demands or other communications to or upon any party hereunder
shall be in writing (including facsimile transmission) and shall be sent by
an overnight courier service, transmitted by facsimile or delivered by hand
to such party: (i) in the case of the Borrower, the Guarantors, the Joint
Bookrunners or the Administrative Agent, at its address or facsimile number
set forth on Schedule 1.01(c) or at such other address or facsimile number
as such party may designate by notice to the other parties hereto and (ii)
in the case of any Lender, at its address or facsimile number set forth in
Schedule 1.01(b) or at such other address or facsimile number as such Lender
may designate by notice to the Borrower, the Joint Bookrunners and the
Administrative Agent.
(b) Unless otherwise expressly provided for herein, each such notice,
request, demand or other communication shall be effective (i) if sent by
overnight courier service or delivered by hand, upon delivery, (ii) if given
by facsimile, when transmitted to the facsimile number specified pursuant to
paragraph (a) above and confirmation of receipt of a legible copy thereof is
received, or (iii) if given by any other means, when delivered at the
address specified pursuant to paragraph (a) above; provided, however, that
notices to the Administrative Agent under ARTICLE II, III, IV or XI shall
not be effective until received.
13.02 Amendments and Waivers. No amendment or waiver of any provision
of this Agreement, and no consent to any departure by the Borrower or any
Guarantor from the terms of this Agreement, shall in any event be effective
unless the same shall be in writing, consented to by the Borrower or the
applicable Guarantors, as the case may be, and acknowledged by the
Administrative Agent (which shall be a purely ministerial action), and signed
or consented to by the Required Lenders, and then such amendment, waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given; provided, however, that no amendment, waiver or
consent shall:
(a) (i) except as specifically provided herein, increase or decrease
the Commitment of any Lender;
(ii) extend the maturity of any of the Obligations, extend the
time of payment of interest thereon, or extend the Termination Date;
(iii) forgive any Obligation, reduce the principal amount of the
Obligations, reduce the rate of interest thereon, reduce the amount or
change the method of calculation of any Fee hereunder, or change the
provisions of Section 3.05(a);
in each case without the consent of the Borrower and each Lender directly
affected thereby;
(b) (i) amend, modify or waive any provision of this Section 13.02;
(ii) change the percentage specified in the definition of
Required Lenders or the number of Lenders which shall be required for
the Lenders or any of them to take any action under this Agreement; or
(iii) amend, modify or waive any provision of Section 4.01; or
(iv) amend, modify or waive any provision of Section 13.06;
in each case without the consent of the Borrower and all the Lenders;
(c) amend, modify or waive any provision of ARTICLE XI without the
written consent of the Administrative Agent; and
(d) amend, modify or waive any provision of ARTICLE XII without the
consent of the Joint Bookrunners.
13.03 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of the Administrative Agent or any Lender, any
right, remedy, power or privilege hereunder or under any other Transaction
Document shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder or thereunder
preclude any other or further exercise thereof or the exercise of any other
right, remedy, power or privilege. The rights and remedies herein provided are
cumulative and not exclusive of any rights or remedies provided by law.
13.04 Payment of Expenses, Etc. The Borrower agrees to pay on demand
(a) all reasonable and documented out-of-pocket costs and expenses
(including reasonable legal fees and disbursements of special Mexican and
New York counsel to the Administrative Agent), syndication (including
printing, distribution and bank meetings), travel, telephone and duplication
expenses and other reasonable and documented costs and out of- pocket
expenses in connection with the arrangement, documentation, negotiation and
closing of the Transactions Documents, subject to the maximum amount set
forth in a letter agreement between the Borrower and the Joint Bookrunners;
(b) all reasonable and documented out-of-pocket costs and expenses
incurred by the Administrative Agent in connection with any amendment to,
waiver of, or consent to any Transaction Document or the transactions
contemplated hereby, including the reasonable fees and reasonable and
documented out-of-pocket expenses of special Mexican and New York counsel to
the Administrative Agent; and
(c) all reasonable and documented, out-of-pocket costs and expenses
incurred by the Administrative Agent or any Lender in connection with the
enforcement of and/or preservation of any rights under this Agreement or any
other Transaction Document (whether through negotiations, legal proceedings
or otherwise), including the reasonable fees and reasonable and documented
out-of-pocket expenses of special Mexican and New York counsel to the
Administrative Agent and such Lender.
13.05 Indemnification. The Borrower agrees to indemnify and hold
harmless the Joint Bookrunners, the Administrative Agent and each Lender and
each of their Affiliates and their officers, directors, employees, agents and
advisors (each, an "Indemnified Party") from and against any and all claims,
damages, losses, liabilities and expenses (including reasonable fees and
expenses of counsel and the allocated cost of in-house counsel), but excluding
taxes that may be incurred by or asserted or awarded against any Indemnified
Party, in each case arising out of or in connection with or by reason of
(including in connection with any investigation, litigation or proceeding or
preparation of a defense in connection therewith) (a) the Transaction
Documents, any of the transactions contemplated herein or the actual or
proposed use of the proceeds of the Loans or (b) or any Environmental Action
relating in any way to the Borrower or any of its Subsidiaries, except to the
extent such claim, damage, loss, liability or expense is found in a final,
non-appealable judgment by a court of competent jurisdiction to have resulted
from such Indemnified Party's gross negligence or willful misconduct. In the
case of an investigation, litigation or other proceeding to which the indemnity
in this Section 13.05 applies, such indemnity shall be effective whether or not
such investigation, litigation or proceeding is brought by the Borrower, its
directors, shareholders or creditors or an Indemnified Party or any other
Person or any Indemnified Party is otherwise a party thereto and whether or not
the transactions contemplated hereby are consummated. The Borrower and each
Guarantor also agrees not to assert any claim against the Joint Bookrunners,
the Administrative Agent, any Lender, any of their Affiliates, or any of their
respective directors, officers, employees, attorneys and agents, on any theory
of liability, for special, indirect, consequential or punitive damages arising
out of or otherwise relating to the Transaction Documents, any of the
transactions contemplated herein or the actual or proposed use of the proceeds
of the Transaction Documents. Neither the Joint Bookrunner, the Administrative
Agent, nor any Lender shall be deemed to have any fiduciary relationship with
the Borrower or any Guarantor.
13.06 Successors and Assigns.
(a) The provisions of this Agreement shall be binding upon the
Borrower, the Guarantors, their successors and assigns and shall inure to
the benefit of the Joint Bookrunners, the Administrative Agent and the
Lenders and their respective successors and assigns, except that the
Borrower and the Guarantors may not assign or otherwise transfer any of
their rights or obligations under this Agreement without the prior written
consent of all Lenders except pursuant to the terms of this Agreement.
(b) Any Lender may at any time, and any Lender, if demanded by the
Borrower pursuant to Section 2.01(d) or Section 3.09 upon at least five
Business Days' notice to such Lender and the Administrative Agent, shall,
assign to one or more commercial banks either (i) registered as a Foreign
Financial Institution and a resident (or having its principal office as a
resident, if lending through a branch or agency) for tax purposes in a
jurisdiction that is a party to an income tax treaty to avoid double
taxation with Mexico on the date of such assignment, qualified to receive
the benefits of said treaty or (ii) organized and existing under the laws of
Mexico on the date of such assignment (each an "Assignee") all, or a
proportionate part of all, of its Commitment and its rights and obligations
under this Agreement and the Notes, and such Assignee shall assume such
rights and obligations, pursuant to an Assignment and Assumption Agreement
executed by such Assignee and such transferor Lender, with (and subject to)
the subscribed consent of the Borrower and the Administrative Agent (which
consents shall not be unreasonably withheld or delayed, and if a Default or
Event of Default has occurred and is continuing, the consent of the Borrower
shall not be required); provided, however, that if an Assignee is an
Affiliate of such transferor Lender, which Affiliate is registered as a
Foreign Financial Institution and meets the tax residence and qualification
requirements of clause (ii) above and, at the time of such assignment, the
additional amounts payable with respect to Taxes to such Assignee will not
exceed such amounts payable to the transferor Lender, no such consent shall
be required; and provided further that, in the case of an assignment of only
part of such rights and obligations, the Assignee shall acquire a Total
Exposure of not less than U.S.$3,000,000 and integral multiples of
U.S.$1,000,000 in excess thereof. Upon execution and delivery of an
Assignment and Assumption Agreement and payment by the Assignee to the
transferor Lender of an amount equal to the purchase price agreed between
such transferor Lender and such Assignee, such Assignee shall be a Lender
party to this Agreement and shall have all the rights and obligations of a
Lender with a Commitment as set forth in such instrument of assumption (in
addition to any Commitment previously held by it), and the transferor Lender
shall be released from its obligations hereunder to a corresponding extent
(except to the extent the same arose prior to the assignment), and no
further consent or action by any party shall be required. Upon the
consummation of any assignment pursuant to this paragraph (b), the
transferor Lender, the Administrative Agent and the Borrower shall make
appropriate arrangements so that a new Note is issued to the Assignee at the
expense of the Assignee. In connection with any such assignment (other than
a transfer by a Lender to one of its Affiliates), the transferor Lender (or
in the case of Section 3.10, the Borrower), without prejudice to any claims
the Borrower may have against any Defaulting Lender, shall pay to the
Administrative Agent an administrative fee for processing such assignment in
the amount of U.S.$3,500.
(c) Nothing herein shall prohibit any Lender from pledging or
assigning any Note to any Federal Reserve Bank of the United States in
accordance with applicable law and without compliance with the foregoing
provisions of this Section 13.06; provided, however, that such pledge or
assignment shall not release such Lender from its obligations hereunder.
(d) Any Lender may, without any consent of the Borrower, the
Administrative Agent or any other third party at any time grant to one or
more banks or other institutions (i) registered as a Foreign Financial
Institution and (ii) resident (or having its principal office as a resident,
if lending through a branch or agency) for tax purposes in a jurisdiction
that is a party to an income tax treaty to avoid double taxation with Mexico
on the date of such assignment and qualified to receive the benefits of said
treaty and having (at the time such Lender or financial institution becomes
a Participant) a withholding tax rate under such treaty applicable to
payments hereunder no higher than that applicable to payments to such Lender
(each a "Participant") participating interests in its Commitment or any or
all of its Loans. In the event of any such grant by a Lender of a
participating interest to a Participant, whether or not upon notice to the
Borrower and the Administrative Agent, such Lender shall remain responsible
for the performance of its obligations hereunder, and the Borrower and the
Administrative Agent shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement. Any agreement pursuant to which any Lender may grant such a
participating interest shall provide that such Lender shall retain the sole
right and responsibility to enforce the obligations of the Borrower
hereunder, including the right to approve any amendment, modification or
waiver of any provision of this Agreement; provided, however, that such
participation agreement may provide that such Lender will not agree to any
modification, amendment or waiver of this Agreement extending the maturity
of any Obligation in respect of which the participation was granted, or
reducing the rate or extending the time for payment of interest thereon or
reducing the principal thereof, or reducing the amount or basis of
calculation of any fees to accrue in respect of the participation, without
the consent of the Participant. The Borrower agrees that each Participant
shall, to the extent provided in its participation agreement, be entitled to
the benefits of Sections 3.04, 3.06 and 3.10 with respect to its
participating interest as if it were a Lender named herein; provided,
however, that the Borrower shall not be required to pay any greater amounts
pursuant to such Sections than it would have been required to pay but for
the sale to such Participant of such Participant's participation interest.
An assignment or other transfer which is not permitted by paragraph (b) or
(c) above shall be given effect for purposes of this Agreement only to the
extent of a participating interest granted in accordance with this paragraph
(d).
(e) Any Lender may, in connection with any assignment or participation
or proposed assignment or participation pursuant to this Section 13.06,
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 to
preserve the confidentiality of any Confidential Information relating to the
Borrower received by it from such Lender.
13.07 Right of Set-off. In addition to any rights and remedies of the
Lenders provided by law, each such Lender shall have the right, without prior
notice to the Borrower or the Guarantors, any such notice being expressly
waived by the Borrower and the Guarantors to the extent permitted by applicable
law, upon any amount becoming due and payable by the Borrower or the Guarantors
hereunder (whether at the stated maturity, by acceleration or otherwise) to
set-off and appropriate and apply against such amount any and all deposits
(general or special, time or demand, provisional or final), in any currency,
and any other credits, indebtedness or claims, in any currency, in each case
whether direct or indirect, absolute or contingent, matured or unmatured, at
any time held or owing by such Lender, or any branch or agency thereof to or
for the credit or the account of the Borrower or the Guarantors. Each Lender
agrees promptly to notify the Borrower, or such Guarantor, as the case may be,
and the Administrative Agent after any such set-off and application made by
such Lender, provided that the failure to give such notice shall not affect the
validity of such set-off and application.
13.08 Confidentiality. Neither the Administrative Agent nor any Lender
shall disclose any Confidential Information to any other Person without the
prior written consent of the Borrower, other than (a) to the Administrative
Agent's, or such Lender's Affiliates and their officers, directors, employees,
agents and advisors and, as contemplated by Section 13.06(e), to actual or
prospective Assignees and Participants, and then only on a confidential basis,
(b) as required by any law, rule or regulation (including as may be required in
connection with an audit by the Administrative Agent's, or such Lender's
independent auditors, and as may be required by any self-regulating
organizations) or as may be required by or necessary in connection with any
judicial process and (c) as requested by any state, federal or foreign
authority or examiner regulating banks or banking.
13.09 Use of English Language. All certificates, reports, notices and
other documents and communications given or delivered pursuant to this
Agreement shall be in the English language (other than the documents required
to be provided pursuant to Section 4.01(e)(iii), Section 7.01 and Section 7.02
which shall be in the English language or in the Spanish language accompanied
by an English translation or summary). Except in the case of the laws of, or
official communications of, Mexico, the English language version of any such
document shall control the meaning of the matters set forth therein.
13.10 GOVERNING LAW. THIS AGREEMENT AND THE OTHER TRANSACTION
DOCUMENTS SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE
STATE OF NEW YORK.
13.11 Submission to Jurisdiction
(a) Each of the parties hereto hereby irrevocably and unconditionally
submits to the non-exclusive jurisdiction of the United States District
Court for the Southern District of New York and of any New York State court
located in the Borough of Manhattan in New York City and any appellate court
thereof for purposes of any suit, legal action or proceeding arising out of
or relating to this Agreement, any other Transaction Document or the
transactions contemplated hereby, and each of the parties hereto hereby
irrevocably agrees that all claims in respect of such suit, action or
proceeding may be heard and determined in such federal or New York State
court and, with respect to the Borrower and the Guarantors, as well as in
the competent court of their own corporate domicile.
(b) Each of the parties hereto hereby irrevocably waives, to the
fullest extent it may effectively do so, any objection that it may now or
hereafter have to the laying of venue of any such suit, action or proceeding
in any such federal or New York State court and irrevocably waives, to the
fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of any such suit, action or proceeding.
(c) Each of the parties hereto irrevocably waives the right to object,
with respect to such claim, suit, action or proceeding brought in any such
court, that such court does not have jurisdiction over it.
(d) Each of the parties hereto agrees, to the fullest extent it may
effectively do so under applicable law, that a final judgment in any suit,
action or proceeding of the nature referred to in paragraph (a) above
brought in any such court shall be conclusive and binding upon such party
and may be enforced in other jurisdictions by suit on the judgment or in any
manner provided by law.
(e) EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL
RIGHT TO TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDING OR COUNTERCLAIM
ARISING OUT OF OR RELATING TO ANY OF THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT OR THE ACTIONS OF ANY ARRANGER, THE ADMINISTRATIVE AGENT OR ANY
LENDER IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT
THEREOF.
13.12 Appointment of Agent for Service of Process.
(a) The Borrower and each Guarantor hereby irrevocably appoints CT
Corporation System, with an office on the date hereof at 111 Eighth Avenue,
13th Floor, New York, New York 10011, as its agent (the "Process Agent") to
receive on behalf of itself and its property, service of copies of the
summons and complaint and any other process which may be served in any such
action or proceeding brought in any New York State or federal court sitting
in New York City. Such service may be made by delivering a copy of such
process to the Borrower or any Guarantor, as the case may be, in care of the
Process Agent at its address specified above, and the Borrower and each
Guarantor, as the case may be, hereby authorizes and directs the Process
Agent to accept such service on its behalf. The appointment of the Process
Agent shall be irrevocable until the appointment of a successor Process
Agent. The Borrower and each Guarantor, further agrees to promptly appoint a
successor Process Agent in New York City prior to the termination for any
reason of the appointment of the initial Process Agent.
(b) Nothing in Section 13.11 or in this Section 13.12 shall affect the
right of any party hereto to serve process in any manner permitted by law or
limit any right that any party hereto may have to enforce in any lawful
manner a judgment obtained in one jurisdiction in any other jurisdiction.
13.13 Waiver of Sovereign Immunity. To the extent that the Borrower or
a Guarantor has or hereafter may acquire any immunity from jurisdiction of any
court or from any legal process (whether through service or notice, attachment
prior to judgment, attachment in aid of execution, or otherwise) with respect
to itself or its property, the Borrower or the Guarantor, as the case may be,
hereby irrevocably waives such immunity in respect of its obligations hereunder
to the extent permitted by applicable law. Without limiting the generality of
the foregoing, the Borrower and each Guarantor agrees that the waivers set
forth in this Section 13.13 shall have force and effect to the fullest extent
permitted under the Foreign Sovereign Immunities Act of 1976 of the United
States and are intended to be irrevocable for purposes of such Act.
13.14 Judgment Currency.
(a) All payments made under this Agreement and the other Transaction
Documents shall be made in Dollars unless specified otherwise herein. If for
the purposes of obtaining judgment in any court it is necessary to convert a
sum due from the Borrower in one currency ("Currency X") into another
currency ("Currency Y"), the parties hereto agree to the fullest extent that
they may legally and effectively do so that the rate of exchange used shall
be that at which in accordance with normal banking procedures (based on
quotations from four major dealers in the relevant market) the
Administrative Agent or each Lender, as the case may be, could purchase
Currency X with Currency Y at or about 11:00 a.m. (New York City time) on
the Business Day preceding that on which final judgment is given.
(b) The Obligations in respect of any sum due to any Lender or the
Administrative Agent hereunder or under any other Transaction Document
shall, to the extent permitted by applicable law notwithstanding any
judgment expressed in a currency other than the applicable Currency X, be
discharged only to the extent that on the Business Day following receipt by
such Lender or the Administrative Agent of any sum adjudged to be so due in
Currency Y such Lender or the Administrative Agent may in accordance with
normal banking procedures purchase Currency X with Currency Y. If the amount
of Currency X so purchased is less than the sum originally due to such
Lender or the Administrative Agent, the Borrower and each of the Guarantors
agree, to the fullest extent it may legally do so, as a separate obligation
and notwithstanding any such judgment, to indemnify such Lender or the
Administrative Agent against such resulting loss.
13.15 Counterparts. This Agreement may be executed in any number of
counterparts and by the different parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement. Delivery of an
executed counterpart of a signature page to this Agreement by facsimile shall
be effective as delivery of a manually executed counterpart of this Agreement.
13.16 USA PATRIOT Act. The Lenders, to the extent that they are
subject to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)) (the "Act"), hereby notify the Borrower
that pursuant to the requirements of the Act, it is required to obtain, verify
and record information that identifies the Borrower, which information includes
the name and address of the Borrower and other information that will allow the
Lenders to identify the Borrower in accordance with the Act.
13.17 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof or affecting the validity or
enforceability of such provision in any other jurisdiction, and the remaining
portion of such provision and all other remaining provisions hereof will be
construed to render them enforceable to the fullest extent permitted by law.
13.18 Survival of Agreements and Representations.
(a) All representations and warranties made herein or in any other
Transaction Document shall survive the execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby.
(b) The covenants and agreements contained in Sections 3.04, 3.05,
3.06, 3.07, 3.08, 13.04, 13.05, 13.08, 13.09, 13.11, 13.12 and 13.14, and
the obligations of the Lenders under Section 11.07, shall survive the
termination of the Commitments and the payment of all Obligations and, in
the case of any Lender that may assign any interest in its Commitment or
obligations hereunder, with respect to matters occurring before such
assignment, shall survive the making of such assignment to the extent any
claim arising thereunder relates to any period prior to such assignment,
notwithstanding that such assigning Lender may cease to be a "Lender"
hereunder.
THIS PAGE IS A SIGNATURE PAGE TO THE CREDIT AGREEMENT, DATED AS OF MAY 31, 2005.
CEMEX, S.A. DE C.V.,
as Borrower
By /s/ Hector Vela
---------------------------------------------
Name: Hector Vela
Title: Attorney-in-fact
THIS PAGE IS A SIGNATURE PAGE TO THE CREDIT AGREEMENT, DATED AS OF MAY 31,
2005.
CEMEX MEXICO, S.A. DE C.V.,
as Guarantor
By /s/ Hector Vela
---------------------------------------------
Name: Hector Vela
Title: Attorney-in-fact
THIS PAGE IS A SIGNATURE PAGE TO THE CREDIT AGREEMENT, DATED AS OF MAY 31,
2005.
EMPRESAS TOLTECA DE MEXICO, S.A. DE C.V.,
as Guarantor
By /s/ Hector Vela
---------------------------------------------
Name: Hector Vela
Title: Attorney-in-fact
THIS PAGE IS A SIGNATURE PAGE TO THE CREDIT AGREEMENT, DATED AS OF MAY 31,
2005.
BARCLAYS CAPITAL, THE INVESTMENT BANKING DIVISION OF
BARCLAYS BANK PLC,
as Joint Lead Arranger and Joint Bookrunner
By /s/ Vidal H. Ramirez
---------------------------------------------
Name: Vidal H. Ramirez
Title: Director
THIS PAGE IS A SIGNATURE PAGE TO THE CREDIT AGREEMENT, DATED AS OF MAY 31,
2005.
CITIGROUP GLOBAL MARKETS INC., as Documentation
Agent, Joint Lead Arranger and Joint Bookrunner
By /s/ Carlos A. Corona
---------------------------------------------
Name: Carlos A. Corona
Title: Director
THIS PAGE IS A SIGNATURE PAGE TO THE CREDIT AGREEMENT, DATED AS OF MAY 31,
2005.
CITIBANK, N.A. NASSAU, BAHAMAS BRANCH
as a Lender
By /s/ Leslie Munroe
---------------------------------------------
Name: Leslie Munroe
Title: Attorney-in-fact
THIS PAGE IS A SIGNATURE PAGE TO THE CREDIT AGREEMENT, DATED AS OF MAY 31,
2005.
BARCLAYS BANK PLC, NEW YORK BRANCH,
as Administrative Agent and Lender
By /s/ Vidal H. Ramirez
---------------------------------------------
Name: Vidal H. Ramirez
Title: Director
THIS PAGE IS A SIGNATURE PAGE TO THE CREDIT AGREEMENT, DATED AS OF MAY 31,
2005.
BANCO SANTANDER CENTRAL HISPANO, S.A., NEW YORK
BRANCH,
as a Lender
By /s/ Ruben Perez-Romo
---------------------------------------------
Name: Ruben Perez-Romo
Title: Vice President
Global Corporate Banking
By /s/ Dom J. Rodriguez
---------------------------------------------
Name: Dom J. Rodriguez
Title: Vice President - Relationship
Manager
Global Corporate Banking
THIS PAGE IS A SIGNATURE PAGE TO THE CREDIT AGREEMENT, DATED AS OF MAY 31,
2005.
THE BANK OF NOVA SCOTIA
as a Lender
By /s/ Tim Lorimer
---------------------------------------------
Name: Tim Lorimer
Title: Vice President, International
Corporate and Commercial Banking
THIS PAGE IS A SIGNATURE PAGE TO THE CREDIT AGREEMENT, DATED AS OF MAY 31,
2005.
BANCO BILBAO VIZCAYA ARGENTARIA, S.A. - NEW YORK
BRANCH
as a Lender
By /s/ Jay Levit
---------------------------------------------
Name: Jay Levit
Title: Vice President
By /s/ John Martini
---------------------------------------------
Name: John Martini
Title: Vice President
THIS PAGE IS A SIGNATURE PAGE TO THE CREDIT AGREEMENT, DATED AS OF MAY 31,
2005.
BNP PARIBAS PANAMA BRANCH,
as a Lender
By /s/ Raul Ardito-Barletta
---------------------------------------------
Name: Raul Ardito-Barletta
Title: Executive Vice President
BNP PARIBAS PANAMA BRANCH,
as a Lender
By /s/ Nair Gonzalez
---------------------------------------------
Name: Nair Gonzalez
Title: Senior Vice President
THIS PAGE IS A SIGNATURE PAGE TO THE CREDIT AGREEMENT, DATED AS OF MAY 31,
2005.
CALYON NEW YORK BRANCH,
as a lender
By /s/ Pierre Debray
---------------------------------------------
Name: Pierre Debray
Title: Managing Director
By /s/ David Rigaud
---------------------------------------------
Name: David Rigaud
Title: Director
THIS PAGE IS A SIGNATURE PAGE TO THE CREDIT AGREEMENT, DATED AS OF MAY 31,
2005.
ING BANK N.V., acting through its Curacao branch,
as a lender
By /s/ Zulia, A.C.
---------------------------------------------
Name: Zulia, A.C.
Title: Senior Management Transaction
Processing
By /s/ Felipa-Ventura, A.A.
---------------------------------------------
Name: Felipa-Ventura, A.A.
Title: Manager Credit Administration
THIS PAGE IS A SIGNATURE PAGE TO THE CREDIT AGREEMENT, DATED AS OF MAY 31,
2005.
WACHOVIA BANK, NATIONAL ASSOCIATION
as a lender
By /s/ Kathleen H. Reedy
---------------------------------------------
Name: Kathleen H. Reedy
Title: Managing Director
THIS PAGE IS A SIGNATURE PAGE TO THE CREDIT AGREEMENT, DATED AS OF MAY 31,
2005.
FORTIS BANK S.A./N.V., Connecticut Branch
as a lender
By /s/ Douglas Riahi
---------------------------------------------
Name: Douglas Riahi
Title: Managing Director
By /s/ Steven Silverstein
---------------------------------------------
Name: Steven Silverstein
Title: Vice President
THIS PAGE IS A SIGNATURE PAGE TO THE CREDIT AGREEMENT, DATED AS OF MAY 31,
2005.
HSBC BANK PLC SURCUSAL EN ESPANA,
as a lender
By /s/ Illegible
---------------------------------------------
Name: Illegible
Title: Illegible
THIS PAGE IS A SIGNATURE PAGE TO THE CREDIT AGREEMENT, DATED AS OF MAY 31,
2005.
THE ROYAL BANK OF SCOTLAND PLC,
as a lender
By /s/ Inaki Basterreche
---------------------------------------------
Name: Inaki Basterreche
Title: Senior Director
By /s/ Antonio Casteleiro
---------------------------------------------
Name: Antonio Casteleiro
Title: Director
THIS PAGE IS A SIGNATURE PAGE TO THE CREDIT AGREEMENT, DATED AS OF MAY 31,
2005.
SOCIETE GENERALE,
as a lender
By /s/ Alejandro Garcia
---------------------------------------------
Name: Alejandro Garcia
Title: Vice President
THIS PAGE IS A SIGNATURE PAGE TO THE CREDIT AGREEMENT, DATED AS OF MAY 31,
2005.
BANK OF AMERICA, N.A.,
as a lender
By /s/ Mauricio Rebolledo
---------------------------------------------
Name: Mauricio Rebolledo
Title: Managing Director
THIS PAGE IS A SIGNATURE PAGE TO THE CREDIT AGREEMENT, DATED AS OF MAY 31,
2005.
The BANK OF TOKYO-MITSUBISHI, LTD.,
as a lender
By /s/ Pamela D. Price
---------------------------------------------
Name: Pamela D. Price
Title: Vice President & Manager
THIS PAGE IS A SIGNATURE PAGE TO THE CREDIT AGREEMENT, DATED AS OF MAY 31,
2005.
JPMORGAN CHASE BANK, N.A.
as a lender
By /s/ Linda M. Meyer
---------------------------------------------
Name: Linda M. Meyer
Title: Vice President
THIS PAGE IS A SIGNATURE PAGE TO THE CREDIT AGREEMENT, DATED AS OF MAY 31,
2005.
SANPAOLO IMI S.P.A.
as a lender
By /s/ Joshua Koenig
---------------------------------------------
Name: Joshua Koenig
Title: Vice President
By /s/ Renato Carducci
---------------------------------------------
Name: Renato Carducci
Title: General Manager
THIS PAGE IS A SIGNATURE PAGE TO THE CREDIT AGREEMENT, DATED AS OF MAY 31,
2005.
BANCA MONTE DEI PASCHI DI SIENA S.P.A.
as a lender
By /s/ Romeo C. Cella
---------------------------------------------
Name: Romeo C. Cella
Title: Senior Vice President & General
Manager
By /s/ Brian R. Landy
---------------------------------------------
Name: Brian R. Landy
Title: Vice President
THIS PAGE IS A SIGNATURE PAGE TO THE CREDIT AGREEMENT, DATED AS OF MAY 31,
2005.
CAJA MADRID MIAMI AGENCY,
as a lender
By /s/ Javier Guzman
---------------------------------------------
Name: Javier Guzman
Title: Deputy General Manager
By /s/ Gema Gamez
---------------------------------------------
Name: Gema Gamez
Title: Head of Capital Markets
THIS PAGE IS A SIGNATURE PAGE TO THE CREDIT AGREEMENT, DATED AS OF MAY 31,
2005.
COMERICA BANK,
as a lender
By /s/ Juan Carlos Sanchez
---------------------------------------------
Name: Juan Carlos Sanchez
Title: Vice President
THIS PAGE IS A SIGNATURE PAGE TO THE CREDIT AGREEMENT, DATED AS OF MAY 31,
2005.
KBC BANK N.V. NEW YORK BRANCH,
as a lender
By /s/ Stefano Snozzi
---------------------------------------------
Name: Stefano Snozzi
Title: First Vice President
By /s/ Robert Snauffer
---------------------------------------------
Name: Robert Snauffer
Title: First Vice President
THIS PAGE IS A SIGNATURE PAGE TO THE CREDIT AGREEMENT, DATED AS OF MAY 31,
2005.
MORGAN STANLEY BANK
as a lender
By /s/ Daniel Twenge
---------------------------------------------
Name: Daniel Twenge
Title: Vice President
THIS PAGE IS A SIGNATURE PAGE TO THE CREDIT AGREEMENT, DATED AS OF MAY 31,
2005.
BAYERISCHE LANDESBANK
as a lender
By /s/ Illegible
---------------------------------------------
Name: Illegible
Title: Illegible
By /s/ Donna M. Quilty
---------------------------------------------
Name: Donna M. Quilty
Title: Vice President
EXHIBIT G
TO CREDIT AGREEMENT
Mandatory Cost Formula
1. The Mandatory Cost is an addition to the interest rate to compensate
Lenders for the cost of compliance with (a) the requirements of the Bank of
England and/or the Financial Services Authority (or, in either case, any other
authority which replaces all or any of its functions) or (b) the requirements of
the European Central Bank.
2. For the purposes of this Exhibit G:
"Additional Cost Rate" has the meaning provided in paragraph 3 below;
"Eligible Liabilities" has the meaning provided from time to time under
or pursuant to the Bank of England Act 1998 or (as may be appropriate) by the
Bank of England;
"Fees Rules" means the rules on periodic fees contained in the FSA
Supervision Manual or such other law or regulation as may be in force from time
to time in respect of the payment of fees for the acceptance of deposits;
"Fee Tariffs" means the fee tariffs specified in the Fees Rules under
the activity group A.1 Deposit acceptors (ignoring any minimum fee or zero rated
fee required pursuant to the Fees Rules but taking into account any applicable
discount rate);
"Special Deposits" has the meaning given to it from time to time under
or pursuant to the Bank of England Act 1998 or (as may be appropriate) by the
Bank of England; and
"Tariff Base" has the meaning given to it in, and will be calculated in
accordance with, the Fees Rules.
3. On the first day of each Interest Period (or as soon as possible
thereafter) the Administrative Agent shall calculate, as a percentage rate, a
rate (the "Additional Cost Rate") for each Lender, in accordance with the
paragraphs set out below. The Mandatory Cost will be calculated by the
Administrative Agent as a weighted average of the Lenders' Additional Cost Rates
(weighted in proportion to the percentage participation of each Lender in the
relevant Loan) and will be expressed as a percentage rate per annum.
4. The Additional Cost Rate for any Lender lending from a Lending
Office in a Participating Member State will be the percentage notified by that
Lender to the Administrative Agent. This percentage will be certified by that
Lender in its notice to the Administrative Agent to be its reasonable
determination of the cost (expressed as a percentage of that Lender's
participation in all Loans made from that Lending Office) of complying with the
minimum reserve requirements of the European Central Bank in respect of loans
made from that Lending Office.
5. The Additional Cost Rate for any Lender lending from a Lending
Office in the United Kingdom will be calculated by the Administrative Agent as
follows:
in relation to a Loan denominated in Sterling:
AB+C(B-D)+E x 0.01
------------------ percent per annum
100 - (A+C)
in relation to a Loan in any currency other than Sterling:
E x 0.01
----------- percent per annum
300
Where:
A is the percentage of Eligible Liabilities (assuming these to
be in excess of any stated minimum) which that Lender is from
time to time required to maintain as an interest free cash
ratio deposit with the Bank of England to comply with cash
ratio requirements.
B is the percentage rate of interest (excluding the Applicable
Margin and the Mandatory Cost and, if the Loan is an Unpaid
Sum, the additional rate of interest specified in paragraph
(a) of Section 2.10 (Default Interest)) payable for the
relevant Interest Period on the Loan.
C is the percentage (if any) of Eligible Liabilities which that
Lender is required from time to time to maintain as interest
bearing Special Deposits with the Bank of England.
D is the percentage rate per annum payable by the Bank of
England to the Administrative Agent on interest bearing
Special Deposits.
E is designed to compensate Lenders for amounts payable under
the Fees Rules and is calculated by the Administrative Agent
as being the average of the most recent rates of charge
supplied by the Reference Banks to the Administrative Agent
pursuant to paragraph 7 below and expressed in pounds per
(pound)1,000,000.
6. In application of the above formula, A, B, C and D will be included in the
formula as percentages (i.e. 5 per cent. will be included in the formula as 5
and not as 0.05). A negative result obtained by subtracting D from B shall be
taken as zero. The resulting figures shall be rounded to four decimal places.
7. If requested by the Administrative Agent, each Reference Bank shall, as
soon as practicable after publication by the Financial Services Authority,
supply to the Administrative Agent, the rate of charge payable by that
Reference Bank to the Financial Services Authority pursuant to the Fees Rules
in respect of the relevant financial year of the Financial Services Authority
(calculated for this purpose by that Reference Bank as being the average of the
Fee Tariffs applicable to that Reference Bank for that financial year) and
expressed in pounds per Sterling 1,000,000 of the Tariff Base of that Reference
Bank.
8. Each Lender shall supply any information required by the Administrative
Agent for the purpose of calculating its Additional Cost Rate. In particular,
but without limitation, each Lender shall supply the following information on
or prior to the date on which it becomes a Lender:
the jurisdiction of its Lending Office; and
any other information that the Administrative Agent may reasonably require for
such purpose.
Each Lender shall promptly notify the Administrative Agent of any
change to the information provided by it pursuant to this paragraph.
9. The percentages of each Lender for the purpose of A and C above and the
rates of charge of each Reference Bank for the purpose of E above shall be
determined by the Administrative Agent based upon the information supplied to
it pursuant to paragraphs 7 and 8 above and on the assumption that, unless a
Lender notifies the Administrative Agent to the contrary, each Lender's
obligations in relation to cash ratio deposits and Special Deposits are the
same as those of a typical Lender from its jurisdiction of incorporation with a
Lending Office in the same jurisdiction as its Lending Office.
10. The Administrative Agent shall have no liability to any person if such
determination results in an Additional Cost Rate which over or under
compensates any Lender and shall be entitled to assume that the information
provided by any Lender or Reference Bank pursuant to paragraphs 3, 7 and 8
above is true and correct in all respects.
11. The Administrative Agent shall distribute the additional amounts received
as a result of the Mandatory Cost to the Lenders on the basis of the Additional
Cost Rate for each Lender based on the information provided by each Lender and
each Reference Bank pursuant to paragraphs 3, 7 and 8 above.
12. Any determination by the Administrative Agent pursuant to this Exhibit G
in relation to a formula, the Mandatory Cost, an Additional Cost Rate or any
amount payable to a Lender shall, in the absence of manifest error, be
conclusive and binding on all Parties.
13. The Administrative Agent may from time to time, after consultation with
the Borrower and the Lenders, determine and notify to all parties to the
Agreement any amendments which are required to be made to this Exhibit G in
order to comply with any change in law, regulation or any requirements from
time to time imposed by the Bank of England, the Financial Services Authority
or the European Central Bank (or, in any case, any other authority which
replaces all or any of its functions) and any such determination shall, in the
absence of manifest error, be conclusive and binding on all parties to the
Agreement.