EXHIBIT 4.7
EXECUTION COPY
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VITRO PLAN, S.A. DE C.V.,
VVP HOLDINGS CORP.
and
VVP SYNDICATION, INC.,
as Borrowers
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$144,244,230.63
LOAN AGREEMENT
Dated as of February 26, 2003
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CERTAIN LENDERS
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
and
COMERICA BANK,
as Joint Lead Arrangers
CITIBANK, N.A.,
as Administrative Agent
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Collateral Agent
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TABLE OF CONTENTS
This Table of Contents is not part of the Agreement to which it
is attached but is inserted for convenience of reference only.
Page
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SECTION 1. DEFINITIONS......................................................2
1.01 CERTAIN DEFINED TERMS.........................................2
1.02 ACCOUNTING TERMS AND DETERMINATIONS..........................17
SECTION 2. COMMITMENTS, ETC................................................17
2.01 LOANS........................................................17
2.02 BORROWING....................................................18
2.03 FEES.........................................................18
2.04 SEVERAL OBLIGATIONS; CERTAIN REMEDIES INDEPENDENT............18
2.05 NOTES........................................................19
SECTION 3. PAYMENTS OF PRINCIPAL AND INTEREST..............................19
3.01 REPAYMENT OF LOANS...........................................19
3.02 INTEREST.....................................................20
3.03 OPTIONAL PREPAYMENTS.........................................20
3.04 MANDATORY PREPAYMENTS........................................21
SECTION 4. PAYMENTS, ETC...................................................21
4.01 PAYMENTS.....................................................21
4.03 COMPUTATIONS.................................................22
4.04 CERTAIN NOTICES..............................................22
4.05 NON-RECEIPT OF FUNDS BY THE ADMINISTRATIVE AGENT.............22
4.06 SHARING OF PAYMENTS..........................................22
4.07 JOINT AND SEVERAL OBLIGATIONS................................23
SECTION 5. YIELD PROTECTION, ETC...........................................23
5.01 ADDITIONAL COSTS.............................................23
5.02 SUBSTITUTE BASIS.............................................25
5.03 ILLEGALITY...................................................26
5.04 COMPENSATION.................................................26
5.05 TAXES........................................................27
SECTION 6. CONDITIONS PRECEDENT............................................29
6.01 CONDITIONS TO EFFECTIVENESS..................................30
(i)
6.02 ADDITIONAL CONDITIONS TO BORROWING...........................32
SECTION 7. GUARANTEE.......................................................33
7.01 THE GUARANTEE................................................33
7.02 ACKNOWLEDGMENTS, WAIVERS AND CONSENTS........................33
7.03 REINSTATEMENT................................................37
7.04 SUBROGATION..................................................37
7.05 REMEDIES.....................................................37
7.06 PAYMENTS.....................................................37
7.07 RIGHTS OF CONTRIBUTION.......................................38
7.08 GENERAL LIMITATION ON GUARANTEE OBLIGATIONS..................38
7.09 LIMITATION ON GUARANTEE OBLIGATIONS OF SWISS GUARANTORS......38
7.10 COLOMBIAN GUARANTOR..........................................39
SECTION 8. REPRESENTATIONS AND WARRANTIES..................................39
8.01 POWER AND AUTHORITY..........................................39
8.02 DUE AUTHORIZATION, ETC.......................................39
8.03 GOVERNMENTAL AND OTHER APPROVALS.............................39
8.04 LEGAL EFFECT.................................................40
8.05 FINANCIAL STATEMENTS.........................................40
8.06 RANKING......................................................40
8.07 NO ACTIONS OR PROCEEDINGS....................................40
8.08 COMMERCIAL ACTIVITY; ABSENCE OF IMMUNITY.....................40
8.09 TAXES........................................................41
8.10 LEGAL FORM...................................................41
8.11 FULL DISCLOSURE..............................................41
8.12 LIENS........................................................41
8.13 SOLVENCY.....................................................42
8.14 RESTRICTIONS ON UPSTREAMING..................................42
8.15 NOT AN INVESTMENT COMPANY....................................42
8.16 MATERIAL AGREEMENTS..........................................42
8.17 PROPERTIES...................................................42
SECTION 9. COVENANTS OF THE BORROWERS......................................42
9.01 CORPORATE EXISTENCE, ETC.....................................42
9.02 COMPLIANCE WITH LAW..........................................43
9.03 GOVERNMENTAL AUTHORIZATIONS..................................43
9.04 FINANCIAL STATEMENTS, ETC....................................43
9.05 RANKING......................................................44
9.06 TRANSACTIONS WITH AFFILIATES.................................44
9.07 LINE OF BUSINESS.............................................45
9.08 MERGER, ETC..................................................45
9.09 UPSTREAMING..................................................45
(ii)
9.10 HEDGE AGREEMENTS.............................................45
9.11 NEGATIVE PLEDGE..............................................45
9.12 FISCAL YEAR..................................................46
9.13 ASSET SALES; INVESTMENTS IN NON-GUARANTEEING SUBSIDIARIES....46
9.14 USE OF PROCEEDS..............................................47
9.15 COMMUNICATIONS AGREEMENT.....................................47
9.16 DIVIDEND PAYMENTS............................................47
9.17 FINANCIAL STATEMENTS OF U.S. GUARANTORS......................47
SECTION 10. FINANCIAL COVENANTS OF VITRO PLAN; SPECIAL COVENANTS OF
VVP SYNDICATION................................................47
10.01 COVENANTS OF VITRO PLAN.....................................47
10.02 COVENANTS OF VVP SYNDICATION................................48
SECTION 11. EVENTS OF DEFAULT..............................................49
SECTION 12. THE CASH RESERVE ACCOUNT.......................................51
12.01 THE CASH RESERVE ACCOUNT....................................51
12.02 PERMITTED INVESTMENTS.......................................53
12.03 CERTAIN PROVISIONS RELATING TO AGENTS.......................54
12.04 INTERCREDITOR AGREEMENT.....................................54
12.05 EVENTS OF DEFAULT, ETC......................................54
12.06 DEFICIENCY..................................................55
12.07 REMOVALS, ETC...............................................55
12.08 ATTORNEY-IN-FACT............................................55
12.09 TERMINATION.................................................55
12.10 NO WAIVER...................................................55
SECTION 13. THE AGENTS.....................................................56
13.01 APPOINTMENT, POWERS AND IMMUNITIES..........................56
13.02 RELIANCE BY AGENTS..........................................57
13.03 DEFAULTS....................................................57
13.04 RIGHTS AS A LENDER..........................................57
13.05 INDEMNIFICATION.............................................58
13.06 NON-RELIANCE ON AGENTS AND OTHER LENDERS....................58
13.07 FAILURE TO ACT..............................................59
13.08 RESIGNATION OR REMOVAL OF AGENTS............................59
SECTION 14. MISCELLANEOUS..................................................60
14.01 WAIVER......................................................60
14.02 NOTICES.....................................................60
14.03 EXPENSES, ETC...............................................60
(iii)
14.04 AMENDMENTS, ETC.............................................61
14.05 SUCCESSORS AND ASSIGNS......................................62
14.06 ASSIGNMENTS AND PARTICIPATIONS..............................62
14.07 SURVIVAL....................................................64
14.08 CAPTIONS....................................................64
14.09 COUNTERPARTS................................................64
14.10 GOVERNING LAW...............................................65
14.11 JURISDICTION, SERVICE OF PROCESS AND VENUE..................65
14.12 WAIVER OF JURY TRIAL........................................66
14.13 WAIVER OF IMMUNITY..........................................66
14.14 JUDGMENT CURRENCY...........................................66
14.15 USE OF ENGLISH LANGUAGE.....................................66
14.16 ENTIRE AGREEMENT............................................67
14.17 SEVERABILITY................................................67
14.18 RIGHT OF SET-OFF............................................67
14.19 CONFIDENTIALITY.............................................67
14.20 NO FIDUCIARY RELATIONSHIP...................................68
(iv)
LOAN AGREEMENT dated as of February 26, 2003, among:
(1) VITRO PLAN, S.A. DE C.V. ("Vitro Plan"), a Mexican corporation
(sociedad anonima de capital variable);
(2) VVP HOLDINGS CORP. ("VVP Holdings"), a corporation organized
under the law of the State of Delaware;
(3) VVP SYNDICATION, INC. ("VVP Syndication"), a corporation
organized under the law of the State of Delaware and, together with Vitro Plan
and VVP Holdings, the "Borrowers");
(4) AUTOCRISTALES DE ORIENTE, S.A. DE C.V., a Mexican corporation
(sociedad anonima de capital variable), VVP AUTO GLASS, INC., a Delaware
corporation, VITROCAR, S.A. DE C.V., a Mexican corporation (sociedad anonima
de capital variable), ▇▇▇▇▇▇▇▇▇ CENTROAMERICANOS, S.A., a Guatemalan
corporation (sociedad anonima), ▇▇▇▇▇▇▇▇▇ INASTILLABLES DE MEXICO, S.A. DE
C.V., a Mexican corporation (sociedad anonima de capital variable),
DISTRIBUIDOR VIDRIERO LAN, S.A. DE C.V., a Mexican corporation (sociedad
anonima de capital variable), DISTRIBUIDORA NACIONAL ▇▇ ▇▇▇▇▇▇, ▇.▇. DE C.V.,
a Mexican corporation (sociedad anonima de capital variable), DISTRIBUIDORA ▇▇
▇▇▇▇▇▇ Y CRISTAL, S.A. DE C.V., a Mexican corporation, (sociedad anonima de
capital variable), DISTRIBUIDORA ▇▇ ▇▇▇▇▇▇ DE MEXICO, S.A. DE C.V., a Mexican
corporation (sociedad anonima de capital variable), TECNOLOGIA VITRO ▇▇▇▇▇▇ Y
CRISTAL LTD. ("Tecnologia Vitro"), a Swiss Corporation (limited liability
company), ▇▇▇▇▇▇ PLANO, S.A. DE C.V., a Mexican corporation (sociedad anonima
de capital variable), ▇▇▇▇▇▇ PLANO DE MEXICO, S.A. DE C.V., a Mexican
corporation (sociedad anonima de capital variable), VIDRIOS TEMPLADOS
COLOMBIANOS, S.A. ("Vidrios Templados"), a Colombian corporation, VITRO
AUTOMOTRIZ, S.A. DE C.V., a Mexican corporation (sociedad anonima de capital
variable), VITRO FLOTADO CUBIERTAS, S.A. DE C.V., a Mexican corporation
(sociedad anonima de capital variable), VITRO ▇▇▇▇▇▇ Y ▇▇▇▇▇▇▇, S.A. DE C.V.,
a Mexican corporation (sociedad anonima de capital variable), VITRO AMERICA,
INC. ("Vitro America"), a Delaware corporation, SUPER SKY INTERNATIONAL, INC.
("Super Sky International"), a Wisconsin corporation, SUPER SKY PRODUCTS, INC.
("Super Sky Products"), a Wisconsin corporation, SUPER SKY CONSTRUCTORS, INC.
("Super Sky Constructors"), a Delaware corporation, IP VITRO ▇▇▇▇▇▇ Y CRISTAL
LTD. ("IP Vitro"), a Swiss corporation, and each Subsidiary of Vitro Plan that
becomes a "Guarantor" after the date hereof pursuant to Section 10.01(d)
hereof (the "Guarantors");
(5) each of the entities that is a signatory hereto under the
caption "LENDERS" on the signature pages hereto and each entity that becomes a
"Lender" after the date hereof pursuant to Section 14.06(b) hereof
(individually, a "Lender" and, collectively, the "Lenders");
(6) CITIBANK, N.A., as administrative agent for the Lenders (in such
capacity, together with its successors in such capacity, the "Administrative
Agent"); and
(7) WACHOVIA BANK, NATIONAL ASSOCIATION, as collateral agent for the
Lenders (in such capacity, together with its successors in such capacity, the
"Collateral Agent").
2
W I T N E S S E T H :
The Borrowers have requested that the Lenders make term loans to
them in an aggregate principal amount up to but not exceeding $144,244,230.63,
and the Lenders are prepared to make such loans upon and subject to the terms
and conditions hereof. Accordingly, the parties hereto agree as follows:
SECTION 1. DEFINITIONS.
1.01 Certain Defined Terms. As used herein, the following terms
shall have the following meanings (and all terms defined in this Section 1.01
or in other provisions of this Agreement in the singular shall have the same
meanings when used in the plural and vice versa):
"Account Control Agreement" shall mean an Account Control Agreement
in substantially the form of Exhibit C hereto among VVP Syndication, the
Collateral Agent and the Intermediary, as from time to time amended.
"Administrative Agent" shall have the meaning set forth in the
introduction hereto.
"Administrative Agent's Account" shall mean the account of the
Administrative Agent maintained by the Administrative Agent at Citibank, N.A.
at ▇ ▇▇▇▇'▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ABA #▇▇▇▇▇▇▇▇▇,
Account No. ▇▇▇▇▇▇▇▇, Account name: Medium Term Finance, Reference: Vitro
Plan, Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, or such other account of the
Administrative Agent as may be designated by the Administrative Agent to the
Borrowers in writing.
"Affiliate" shall mean, as to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under common control
with such Person or is a director or officer of such Person. For purposes of
this definition, the term "control" (including the terms "controlling",
"controlled by" and "under common control with") of a Person shall mean the
possession, direct or indirect, of the power to vote 10% or more of the Voting
Shares of such Person or to direct or cause the direction of the management
and policies of such Person, whether through the ownership of such Voting
Shares, by contract or otherwise.
"Agents" shall mean, collectively, the Administrative Agent and the
Collateral Agent.
"Applicable Lending Office" shall mean, for each Lender, the
"Lending Office" of such Lender (or of an affiliate of such Lender) specified
opposite its name on Annex 1 hereto or such other office of such Lender (or of
an affiliate of such Lender) as such Lender may from time to time specify in
writing to the Administrative Agent and the Borrowers as the office by which
its Loans are to be made and maintained.
3
"Asset Sale" by any Person shall mean any sale, lease, or other
transfer of Property, not including Dividend Payments, the making of payments
in respect of Indebtedness of such Person or the placing of funds in deposit
accounts or the investment of funds pursuant to cash management transactions
in the ordinary course of business or the granting of Liens permitted
hereunder.
"Base Rate" shall mean a fluctuating interest rate per annum in
effect from time to time, which rate per annum shall at all times be equal to
the higher of:
(a) the rate of interest announced publicly by Citibank in New York,
New York, from time to time, as Citibank's "base rate"; and
(b) 1/2 of 1% per annum above the Federal Funds Effective Rate.
Each change in any interest rate provided for herein based upon the Base Rate
resulting from a change in the Base Rate shall take effect at the time of such
change in the Base Rate.
"Borrowers" shall have the meaning set forth in the introduction
hereto.
"Borrowing" shall mean the borrowing by the Borrowers under this
Agreement, consisting of the simultaneous making of Loans by the Lenders.
"Borrowing Date" shall mean the date of the Borrowing.
"Business Day" shall mean any day on which commercial banks are not
authorized or required to close in New York City, London and Mexico City and
that is also a day on which dealings in Dollar deposits are carried out in the
London interbank market.
"Capital Lease Obligations" shall mean, as to any Person, the
obligations of such Person to pay rent or other amounts under a lease of (or
other agreement conveying the right to use) real and/or personal Property,
which obligations are required to be classified and accounted for as a capital
lease on a balance sheet of such Person under GAAP and, for purposes of this
Agreement, the amount of such obligations shall be the capitalized amount
thereof, determined in accordance with GAAP.
"Cash Reserve Account" shall mean account no. ▇▇▇▇▇▇▇▇ established
and maintained at the principal office in New York City of the Intermediary
for the account of VVP Syndication, under the sole dominion and control of the
Collateral Agent and entitled "VVP Syndication Cash Reserve Account", for
which the Collateral Agent is the "entitlement holder" within the meaning of
Section 8-102(a)(7) of the UCC.
"Change of Control Notice" shall have the meaning set forth in
Section 3.04 hereof.
"Change of Control" shall mean that either (i) Vitro shall cease to
own, beneficially and of record, directly or through one or more wholly-owned
Subsidiaries, at least
4
51% of the outstanding Voting Shares of Vitro Plan or (ii) ▇▇▇▇▇▇▇▇▇▇ shall
cease to own, beneficially and of record, directly or through one or more
wholly-owned Subsidiaries, at least 35% of the outstanding Voting Shares of
Vitro Plan.
"Citibank" means Citibank, N.A., a national banking association.
"Closing Date" shall mean the date on which the Administrative Agent
notifies the Borrowers that the conditions precedent set forth in Section 6.01
hereof have been satisfied.
"Collateral Agent" shall have the meaning set forth in the
introduction hereto.
"Colombian Guarantor" shall mean Vidrios Templados.
"Commitments" shall mean, collectively, the Tranche A Commitments
and the Tranche B Commitments.
"Commitment Termination Date" shall mean the date ten Business Days
after the date hereof.
"Communications Agreement" shall mean an agreement among the
Borrowers and the Administrative Agent in substantially the form of Exhibit M
hereto, as from time to time amended.
"Confidential Information" means information that any Obligor
furnishes to any Loan Party, but does not include any such information that is
or becomes generally available to the public or that is or becomes available
to any Loan Party from a source other than a Loan Party or an Obligor, unless,
to the actual knowledge of the recipient of such information, such source
breached an obligation of confidentiality in providing such information to
such recipient.
"Consolidated EBITDA" shall mean, for any Person and for any period,
with respect to such Person and its consolidated Subsidiaries on a
consolidated basis, the sum (without duplication) of (i) Consolidated
Operating Income, (ii) depreciation and amortization and (iii) other non-cash
charges to the extent deducted in arriving at Consolidated Operating Income;
provided, that Vitro AFG shall be excluded from any determination of
Consolidated EBITDA so long as, pursuant to clause (ii) of the proviso to the
definition of Indebtedness, the consolidated Indebtedness of the Obligors is
reduced by $30,000,000 of consolidated Indebtedness of Vitro AFG.
"Consolidated Interest Expense" shall mean, with respect to any
Person for any period, the aggregate gross amount of interest accruing during
such period on Indebtedness of such Person and its consolidated Subsidiaries
on a consolidated basis, determined in accordance with GAAP, including,
without duplication, the interest portion of payments under Capital Lease
Obligations and any capitalized interest and amortization of debt discount and
expense.
5
"Consolidated Net Worth" shall mean, for any Person at any time, for
such Person and its consolidated Subsidiaries, total shareholders' equity,
determined on a consolidated basis in accordance with GAAP.
"Consolidated Operating Income" shall mean, for any Person and for
any period, operating income of such Person and its consolidated Subsidiaries,
determined on a consolidated basis in accordance with GAAP.
"Consolidated Total Debt" shall mean, for any Person at any time,
the sum, with respect to such Person and its consolidated Subsidiaries on a
consolidated basis in accordance with GAAP, of all Indebtedness of such Person
and its Subsidiaries.
"Covered Taxes" shall mean all present and future taxes, duties,
levies, imposts, deductions, charges or withholdings whatsoever imposed with
respect to any amount payable on or in respect of this Agreement, any of the
other Loan Documents or the Loans, now or thereafter imposed, assessed, levied
or collected by Mexico or the United States of America or any other
jurisdiction from which any amount payable hereunder is made, or any political
subdivision or taxing authority thereof or therein, excluding, however, (i)
income, real property or franchise taxes imposed on a Loan Party by a
jurisdiction (including Mexico) as a result of such Loan Party being organized
under the laws of such jurisdiction or being a resident of such jurisdiction
for tax purposes, or by virtue of its having a permanent establishment or
fixed base in such jurisdiction to which income under this Agreement is
attributable or its Applicable Lending Office being located in such
jurisdiction, (ii) any United States withholding tax with respect to any
amounts payable on or in respect of this Agreement, any of the Loan Documents
or the Loans that is imposed on a Loan Party as of the time such Loan Party
becomes a party to this Agreement (or designates a new lending office) or is
attributable to such Loan Party's failure to comply with Section 5.05(h),
except to the extent such Loan Party (or its assignor, if any) was entitled at
the time of its designation of a new lending office (or assignment) to receive
additional amounts with respect to such United States withholding tax pursuant
to Section 5.05 and (iii) in the case of an assignment or designation of a new
lending office, any Mexican withholding tax with respect to any amounts
payable on or in respect of this Agreement, any of the Loan Documents or the
Loans that is imposed on the applicable assignee or designee as of the time of
such assignment or designation, except to the extent the applicable assignor
or designor was entitled at such time to receive additional amounts with
respect to such Mexican withholding tax pursuant to Section 5.05.
"Creditors" shall mean, collectively, the Tranche A Lenders, the
Tranche B Lenders and the Tranche C Lenders.
"Debt to EBITDA Ratio" shall mean, as of the last day of any fiscal
quarter of Vitro Plan, the ratio of (i) Consolidated Total Debt of Vitro Plan
at such time to (ii) Consolidated EBITDA of Vitro Plan for the period of four
consecutive fiscal quarters of Vitro Plan ending on such date).
"Default" shall mean an Event of Default or an event that with the
giving of notice or lapse of time or both would become an Event of Default.
6
"Deposit Collateral" shall have the meaning set forth in Section
12.01(b) hereof.
"Derivatives Liabilities" shall mean, with respect to any Person,
all obligations of such Person in respect of any Hedge Agreement. For purposes
hereof, the "credit exposure" at any time of any Person in respect of any
Derivatives Liabilities shall be the total amount of net termination or
liquidation payments due and payable from such Person at such time (excluding
penalties and extraordinary amounts).
"Dividend Payment" by any Person shall mean the payment of any
dividend (in cash or in kind) on, or other payment or distribution on account
of, or the setting apart of money for a sinking or other analogous fund for,
or the purchase, redemption, retirement or other acquisition of, any shares of
any class of stock of such Person or of any options, warrants or other rights
to acquire the same (or to make any payments to any Person, such as "phantom
stock" payments, where the amount thereof is calculated with reference to the
fair market or equity value of such Person), but excluding dividends payable
solely in shares of common stock of such Person.
"Dollars" and "$" shall mean lawful money for the time being of the
United States of America.
"Eligible Assignee" shall mean any of the following:
(a) a commercial bank organized under the laws of the United States
of America, or any State thereof, and having total assets in excess of
$500,000,000;
(b) a savings and loan association or savings bank organized under
the laws of the United States of America, or any State thereof, and
having total assets in excess of $500,000,000;
(c) a commercial bank organized under the laws of any other country
which is a member of the OECD or has concluded special lending
arrangements with the International Monetary Fund associated with its
General Arrangements to Borrow, or a political subdivision of any such
country, and having total assets in excess of $1,000,000,000, provided,
that such bank is acting through a branch or agency located in the United
States of America;
(d) the central bank of any country which is a member of the OECD;
(e) a finance company, insurance company or other financial
institution or fund (whether a corporation, partnership or other entity)
which is engaged in making, purchasing or otherwise investing in
commercial loans in the ordinary course of its business, and having total
assets in excess of $150,000,000;
(f) a Lender; and
7
(g) an Affiliate of a Lender which is a financial institution;
provided, that neither an Obligor nor any Affiliate thereof shall qualify as
an Eligible Assignee; and provided further, that no entity specified in
clauses (a) through (c) or (e) through (g) above shall qualify as an Eligible
Assignee unless such entity (i) is registered with the Ministry of Finance for
purposes of Article 195, Section I, of the Mexican Income Tax Law (Ley del
Impuesto Sobre la Renta) (or any successor provision) and (ii) is a resident
for tax purposes of a country with which Mexico has entered into a treaty for
the avoidance of double taxation which is in effect.
"Environmental Law" shall mean any applicable federal, state or
local governmental law, rule, regulation, order or decree relating to
pollution or protection of the environment or the treatment, storage,
disposal, release, threatened release or handling of hazardous materials,
including, without limitation, the Mexican General Law of Ecological Balance
and Environmental Protection (Ley General del Equilibrio Ecologico y la
Proteccion al Ambiente), technical rules (normas tecnicas) and regulations
thereunder, and all applicable local laws and regulations related to
environmental matters and any specific agreements entered into with any
competent authorities which include commitments related to environmental
matters.
"Event of Default" shall have the meaning set forth in Section 11
hereof.
"Existing Restrictions" shall mean the restrictions described in
Schedule 1 hereto.
"Federal Funds Effective Rate" shall mean, for any day, the weighted
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates
on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers, as published on the next succeeding
Business Day by the Federal Reserve Bank of New York, or, if such rate is not
so published for any day that is a Business Day, the average (rounded upwards,
if necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"GAAP" shall mean (i) as to each Mexican Obligor and as to the
consolidated financial statements of Vitro Plan, generally accepted accounting
principles in Mexico in effect from time to time, (ii) as to each U.S.
Obligor, generally accepted accounting principles in the United States of
America in effect from time to time and (iii) as to any other Obligor,
generally accepted accounting principles in the jurisdiction of organization
of such Obligor in effect from time to time.
"Governmental Authority" shall mean any nation, government, state or
municipality or other political subdivision thereof and any entity exercising
executive, legislative, judicial, monetary, regulatory or administrative
functions of or pertaining to government.
"Guaranteed Obligations" shall have the meaning set forth in Section
7.01 hereof.
8
"Guarantee" by any Person shall mean any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Indebtedness
of any other Person including, without limitation, an aval and any obligation,
direct or indirect, contingent or otherwise, of such Person (i) to purchase or
pay (or advance or supply funds for the purchase or payment of) such
Indebtedness (whether arising by virtue of partnership arrangements, or by
agreement to purchase assets, goods, securities or services, or to
take-or-pay, other than agreements to purchase goods from suppliers on an
arm's length basis in the ordinary course of business) or (ii) entered into
for the purpose of assuring in any other manner the holder of such
Indebtedness of the payment thereof or to protect such holder against loss in
respect thereof (in whole or in part), provided, that the term Guarantee shall
not include endorsements for collection or deposit in the ordinary course of
business. The term "Guarantee" used as a verb has a corresponding meaning.
"Guarantors" shall have the meaning set forth in the introduction
hereto.
"Hedge Agreement" shall mean any interest rate exchange agreement,
foreign currency exchange agreement, commodity price protection agreement or
other interest or currency exchange rate or commodity price hedging
arrangement.
"IMSS" shall mean Instituto Mexicano del Seguro Social.
"Indebtedness" shall mean, with respect to any Person at any date,
without duplication, (i) all obligations of such Person for borrowed money;
(ii) all obligations of such Person evidenced by bonds, debentures, notes
(including, for the avoidance of doubt, any note payable to an Affiliate of
any Borrower which Affiliate is not a Subsidiary of Vitro Plan) or other
similar instruments; (iii) all obligations of such Person to pay the deferred
purchase price of Property or services (other than trade accounts payable
arising in the ordinary course of business not overdue for more than 60 days);
(iv) all Capital Lease Obligations of such Person and (without duplication)
obligations under Sale-Leaseback Transactions; (v) all obligations, contingent
or otherwise, of such Person to reimburse any Person in respect of amounts
paid under a letter of credit or similar instrument (other than contingent
obligations in respect of documentary letters of credit to support trade
transactions of such Person in the ordinary course of business and with
maturities of 270 days or less); (vi) all Indebtedness of other Persons
secured by a Lien on any Property of such Person, whether or not such
Indebtedness is assumed by such Person; (vii) all Indebtedness of other
Persons Guaranteed by such Person; and (viii) the credit exposure of such
Person in respect of Derivatives Liabilities; provided, that for purposes
solely of computing the outstanding principal amount of Indebtedness of the
Obligors or any of them in connection with Sections 10.01(a), 10.01(b) and
10.01(c) hereof, (i) the aggregate outstanding principal amount of
Indebtedness hereunder shall be deemed reduced by the amount then credited to
the Cash Reserve Account and (ii) the outstanding principal amount of
consolidated Indebtedness of the Obligors shall be reduced by $30,000,000 of
consolidated Indebtedness of Vitro AFG, provided, that there shall be no
recourse of any kind to Vitro Plan or to any of its Subsidiaries in respect of
such Indebtedness.
"INFONAVIT" shall mean Instituto del Fondo Nacional de la Vivienda
para los Trabajadores.
9
"Information Memorandum" shall mean the Information Memorandum dated
December 12, 2002, relating to the Borrowers.
"Intercreditor Agreement" shall mean an Intercreditor Agreement
substantially in the form of Exhibit B hereto among the Borrowers, the
Administrative Agent, the Collateral Agent, the Creditors and the Tranche C
Agent, as amended from time to time.
"Interest Coverage Ratio" shall mean, at any time, the ratio of (i)
Consolidated EBITDA of Vitro Plan for the then most recently concluded period
of four consecutive fiscal quarters of Vitro Plan to (ii) Consolidated
Interest Expense of Vitro Plan for such period.
"Interest Period" shall mean the period commencing on the Borrowing
Date and ending on the first Principal Payment Date thereafter, and thereafter
each period commencing on the last day of the preceding Interest Period and
ending on the next Principal Payment Date, provided, that the term "Interest
Period" shall include any period selected by the Administrative Agent from
time to time in accordance with the definition of "Post-Default Rate".
"Intermediary" shall mean Wachovia Securities, Inc.
"Investment" in any Person shall mean: (i) the acquisition (whether
for cash, Property, services or securities or otherwise) of capital stock,
bonds, notes, debentures, partnership or other ownership interests or other
securities of, or the making of a capital contribution to, such Person, (ii)
the making of any advance, loan or other extension of credit to, such Person
(including the purchase of Property from such Person subject to an
understanding or agreement, contingent or otherwise, to resell such Property
to such Person), but excluding any such advance, loan or extension of credit
having a term not exceeding 90 days arising in connection with the sale of
inventory or supplies to such Person in the ordinary course of business, and
(iii) the entering into of any Guarantee of Indebtedness or other liability of
such Person.
"Joint Lead Arrangers" shall mean ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. and
Comerica Bank as Joint Lead Arrangers.
"Joint Venture Subsidiary" shall mean any Subsidiary of Vitro Plan
of which one or more Persons, in the aggregate, that are not Affiliates of any
Obligor owns, directly or indirectly, beneficially or of record, 35% or more
of the Voting Stock.
"Lenders" shall have the meaning set forth in the introduction
hereto.
"LIBO Rate" shall mean, for any Interest Period, the offered rate
for deposits in Dollars for a period equal to such Interest Period which
appears on Telerate Page 3750, as of approximately 11:00 a.m. London time, on
the date two Business Days prior to the first day of such Interest Period,
provided, that (i) if such rate does not appear on such Telerate Page 3750,
the "LIBO Rate" shall mean, for any Interest Period, the offered rate for
deposits in Dollars for a period equal to or nearest the number of days in
such Interest Period which appears on the
10
Reuters Screen LIBO Page, and (ii) if such rate or rates do not appear on
either Telerate Page 3750 or the Reuters Screen LIBO Page, the "LIBO Rate"
shall mean, with respect to each day during such Interest Period, the rate per
annum equal to the average (rounded upwards, if necessary, to the nearest 1/16
of 1%) of the respective rates notified to the Administrative Agent by each
Reference Bank as the rate at which Dollar deposits are offered to such
Reference Bank by prime banks at or about 11:00 a.m., London time, two
Business Days prior to the beginning of such Interest Period in the London
interbank market for delivery on the first day of such Interest Period for a
period approximately equal to the number of days in such Interest Period and
in an amount comparable to the principal amount of the Loans.
"Lien" shall mean any mortgage, lien, pledge, charge or other
security interest or any preferential arrangement that has the practical
effect of creating a security interest.
"Loan Documents" shall mean, collectively, this Agreement, the
Notes, the Account Control Agreement, the Intercreditor Agreement and the
Communications Agreement.
"Loan Parties" shall mean, collectively, the Lenders and the Agents.
"Loans" shall mean, collectively, the Tranche A Loans and the
Tranche B Loans.
"Majority Lenders" shall mean, at any time, Lenders holding more
than 50% of the aggregate outstanding principal amount of the Loans or, if the
Loans are not outstanding, Lenders having more than 50% of the aggregate
amount of the Commitments.
"Majority Tranche A Lenders" shall mean, at any time, Tranche A
Lenders holding more than 50% of the aggregate outstanding principal amount of
the Tranche A Loans or, if the Tranche A Loans are not outstanding, Lenders
having more than 50% of the Tranche A Commitments.
"Majority Tranche B Lenders" shall mean, at any time, Tranche B
Lenders holding more than 50% of the aggregate outstanding principal amount of
the Tranche B Loans or, if the Tranche B Loans are not outstanding, Lenders
having more than 50% of the Tranche B Commitments.
"Material Adverse Effect" shall mean a material adverse effect on
(i) the business, condition (financial or otherwise), operations, Properties
or prospects of any Borrower (other than VVP Syndication) and its Subsidiaries
taken as a whole, (ii) the ability of the Obligors to perform their
obligations under any of the Loan Documents or (iii) the rights and remedies
of the Loan Parties under any of the Loan Documents.
"Material Debt" shall have the meaning specified in Section 11(c)
hereof.
"Material Subsidiary" shall mean, at any time, any Subsidiary of a
Borrower (i) accounting, during the then most recently completed fiscal
quarter of such Borrower, for more than 5% of the total sales or more than 5%
of the Consolidated EBITDA of Vitro Plan and its consolidated Subsidiaries on
a consolidated basis, or (ii) having, as at the last day of such fiscal
11
quarter, more than 5% of the total assets of Vitro Plan and its consolidated
Subsidiaries on a consolidated basis, all determined in accordance with GAAP.
"Mexican Bank" shall mean a bank chartered under the laws of Mexico
and authorized to carry out the business of banking in Mexico under the Law of
Credit Institutions (Ley de Instituciones de Credito) by the Ministry of
Finance.
"Mexican Obligor" shall mean each Obligor that is organized under
the laws of Mexico.
"Mexico" shall mean the United Mexican States.
"Ministry of Finance" shall mean the Secretaria de Hacienda y
Credito Publico of Mexico.
"Non-Guaranteeing Subsidiary" shall mean (i) any Joint Venture
Subsidiary and (ii) any Subsidiary acquired by an Obligor after the date of
this Agreement that is contractually prohibited (pursuant to a contract not
entered into in anticipation of such acquisition) from guaranteeing the
obligations of the Borrowers under this Agreement.
"Notes" shall mean, collectively, the Tranche A Notes and the
Tranche B Notes.
"Notice of Assignment" shall have the meaning set forth in Section
14.06(b) hereof.
"Notice of Borrowing" shall have the meaning set forth in Section
2.02 hereof.
"Obligors" shall mean, collectively, the Borrowers and the
Guarantors.
"OECD" shall mean the Organization for Economic Cooperation and
Development.
"Operating Lease Obligation" shall mean, with respect to any Person,
the obligation of such Person under any lease (including, without limitation,
a lease that may be terminated by the lessee at any time) relating to any
Property (whether real, personal or mixed) that does not give rise to Capital
Lease Obligations, not including any such lease under which that Person is the
lessor.
"Other Applicable Taxes" shall have the meaning set forth in Section
5.05(e) hereof.
"Permitted Investments" shall mean (a) direct obligations of the
United States of America, or of any agency thereof, or obligations guaranteed
as to principal and interest by the United States of America, or by any agency
thereof, in either case maturing not more than 90 days from the date of
acquisition thereof; (b) certificates of deposit issued by any bank or trust
company organized under the laws of the United States of America or any state
thereof and
12
having capital, surplus and undivided profits of at least $500,000,000 and a
rating with respect to its public, short-term, unsecured, unsubordinated debt
securities of "A-1" or better by Standard & Poor's, or "P-1" or better by
Moody's, or "D-1" or better by Fitch, IBCA, Duff & ▇▇▇▇▇▇, maturing not more
than 90 days from the date of acquisition thereof; (c) commercial paper rated
"A-1" or better by Standard & Poor's, or "P-1" or better by Moody's, or "D-1"
or better by Fitch, IBCA, Duff & ▇▇▇▇▇▇, respectively, maturing not more than
90 days from the date of acquisition thereof; (d) repurchase agreements with
respect to securities described in clause (a) above entered into with an
office of a bank or trust company meeting the criteria described in clause (b)
above; and (e) any fund at least 95% of the assets of which are invested in
investments of the type referred to in clauses (a) through (c).
"Permitted Liens" shall mean:
(i) Liens imposed by law arising in the ordinary course of business,
including (but not limited to) carriers', warehousemen's and mechanics'
liens and other similar liens arising in the ordinary course of business
and which (x) do not in the aggregate materially detract from the value
of the Property subject thereto or materially impair the use thereof in
the operations of the business of any of the Obligors or (y) are being
contested in good faith by appropriate proceedings, which proceedings
have the effect of preventing the forfeiture or sale of the Property
subject to such Liens and for which adequate reserves have been made if
required in accordance with GAAP;
(ii) pledges or deposits made in the ordinary course of business in
connection with workers' compensation, unemployment insurance or other
similar social security legislation or in connection with bids relating
to the obtaining of a contract for the manufacture and/or sale of
products;
(iii) Liens securing taxes, assessments and other governmental
charges, the payment of which is not yet due or is being contested in
good faith by appropriate proceedings reasonably promptly initiated and
diligently conducted and for which such reserve or other appropriate
provisions, if any, as required by GAAP, shall have been made;
(iv) any Lien which arises pursuant to a final judgment to the
extent it does not constitute or give rise to an Event of Default;
(v) any Lien existing on any Property prior to the acquisition
thereof by an Obligor or a Subsidiary and not created in contemplation of
such acquisition (and not extending to any other Property); and
(vi) any right of setoff arising by operation of law.
"Person" shall mean any individual, corporation, company, voluntary
association, partnership, limited liability company, joint venture, trust,
unincorporated organization or Governmental Authority or other entity of
whatever nature.
13
"Pesos" shall mean the lawful currency of Mexico.
"▇▇▇▇▇▇▇▇▇▇" shall mean ▇▇▇▇▇▇▇▇▇▇ PLC, an English company.
"Post-Default Rate" shall mean, in the case of any overdue principal
of any Loan, until the end of the then current Interest Period, a rate per
annum which is equal to the sum of 2% per annum plus the Tranche A Applicable
Margin or the Tranche B Applicable Margin, as applicable plus the LIBO Rate
for such Interest Period, and thereafter a rate per annum which is equal to
the sum of 2% per annum plus the Tranche A Applicable Margin or the Tranche B
Applicable Margin, as applicable plus the LIBO Rate applicable to such
Interest Period or Interest Periods as shall be selected by the Administrative
Agent for funding of such overdue amounts (which Interest Periods shall not be
of durations exceeding one month), and in the case of any other overdue
amount, a rate per annum equal to the sum of 2% per annum plus the Tranche A
Applicable Margin or the Tranche B Applicable Margin, as applicable plus the
rate reasonably determined by the Administrative Agent and certified to the
Borrowers, to be the cost of funding such overdue amount on an overnight basis
in the London interbank market from the date of such non-payment until such
amount is paid in full (after as well as before judgment).
"Principal Payment Date" shall mean any Tranche A Principal Payment
Date and any Tranche B Principal Payment Date.
"Process Agent" shall have the meaning set forth in Section 14.11(b)
hereof.
"Process Agent Acceptance" shall mean a letter from the Process
Agent to the Administrative Agent, in substantially the form of Exhibit J
hereto.
"Property" or "Properties" of any Person shall mean any property or
assets of such Person.
"Reference Banks" shall mean the principal London office of
Citibank, N.A. and the Grand Cayman office of Comerica Bank.
"Register" shall have the meaning set forth in Section 14.06(c)
hereof.
"Regulation U" shall mean Regulation U of the Board of Governors of
the Federal Reserve System, as amended.
"Required Cash Reserve Balance" shall mean the fixed amount
calculated as of the Closing Date such that (i) the total Consolidated EBITDA
of the Guarantors on a combined basis for the then most recently completed
period of four consecutive fiscal quarters plus the collected credit balance
of the Cash Reserve Account (including all Permitted Investments therein)
divided by (ii) Consolidated EBITDA of Vitro Plan for such period, expressed
as a percentage, is not less than 75%, plus, unless and until released
pursuant to Section 12.01(c) hereof, an additional amount equal to $2,500,000
(said additional amount being referred to, for purposes of Section 12.01(c)
hereof, as the "Interim Supplement").
14
"Requirement of Law" shall mean, as to any Person, any statute, law,
treaty, rule or regulation or determination, order, injunction or judgment of
an arbitrator or a court or other Governmental Authority, in each case
applicable to or binding upon such Person or any of its Properties or
revenues.
"Responsible Officer" shall mean the chief financial officer, chief
accounting officer or such other senior executive officer having primary
responsibility for the matter at hand.
"Reuters Screen" shall mean the relevant display page as determined
by the Administrative Agent of the Reuter Monitor Money Rates Service (or any
successor or substitute page) for the purpose of displaying London interbank
offered rates for Dollar deposits.
"Sale-Leaseback Transaction" shall mean, with respect to any Person,
any transaction in which such Person, directly or indirectly, becomes liable
as lessee or as a guarantor or other surety with respect to any lease, whether
a Capital Lease Obligation or an Operating Lease Obligation, of any Property,
whether then owned or thereafter acquired, (i) which such Person has sold or
otherwise transferred or is to sell or transfer to any other Person or (ii)
which such Person intends to use for substantially the same purposes as any
other Property which has been or is sold or transferred by such Person to any
other Person in connection with such lease.
"SAR" shall mean Sistema de Ahorro para el Retiro or mandatory
retirement system of Mexico.
"Secured Obligations" shall have the meaning specified in Section
12.01(b) hereof.
"Solvent" shall mean, with respect to any Person at any time, that
(a) the fair value of the Property of such Person is greater than the total
amount of liabilities (including without limitation contingent liabilities) of
such Person, (b) the present fair saleable value of the Property of such
Person is not less than the amount that will be required to pay the probable
liability of such Person on its debts as they become absolute and matured, (c)
such Person does not intend to, and does not believe that it will, incur debts
or liabilities beyond such Person's ability to pay as such debts and
liabilities mature, (d) such Person is not engaged in a business and is not
about to engage in a business for which such Person's property would
constitute an unreasonably small capital and (e) such Person is not, or is not
deemed to be, generally in default with respect to its payment obligations
pursuant to the Mexican Ley de Concursos Mercantiles.
"Subsidiary" of any Person shall mean any corporation or other
entity more than 50% of the Voting Shares of which are owned or controlled,
directly or indirectly, by such Person and/or any Subsidiary of such Person.
"Substitute Basis" shall have the meaning set forth in Section 5.02
hereof.
"Swiss Guarantor" shall mean each of Tecnologia Vitro and IP Vitro.
15
"Tranche A Applicable Margin" shall mean (i) during the period from
and including the Closing Date to but not including the date one year after
the Closing Date, 1.875% per annum; (ii) during the period from and including
the date one year after the Closing Date to but not including the date two
years after the Closing Date, 2.000% per annum; and (iii) thereafter, 2.125%
per annum.
"Tranche A Commitment" shall mean, as to each Tranche A Lender, the
obligation of such Lender, on and subject to the terms and conditions of this
Agreement, to make a Tranche A Loan in a principal amount up to but not
exceeding the amount set opposite the name of such Tranche A Lender on Annex I
hereto under the caption "Tranche A Commitment" or, in the case of a Person
that becomes a Tranche A Lender pursuant to an assignment permitted under
Section 14.06(b), as specified in the respective instrument of assignment
pursuant to which such assignment is effected. The original aggregate
principal amount of the Tranche A Commitments is $80,000,000; provided that
the aggregate principal amount of Tranche A Loans that may be disbursed for
the account of VVP Holdings shall not exceed $15,000,000.
"Tranche A Final Maturity Date" shall mean the date three years
after the Closing Date, provided that if such date is not a Business Day, the
Tranche A Final Maturity Date shall be the immediately preceding Business Day.
"Tranche A Lenders" means (a) on the date hereof, the Lenders having
Tranche A Commitments specified on Annex I hereto and (b) thereafter, the
Lenders from time to time holding Tranche A Loans and Tranche A Commitments
after giving effect to any assignments thereof permitted by Section 14.06(b).
"Tranche A Loan" shall have the meaning set forth in Section 2.01(a)
hereof.
"Tranche A Note" shall have the meaning set forth in Section 2.05
hereof.
"Tranche A Principal Payment Date" shall mean the date falling six
months after the Closing Date and each date falling six months after the
previous Tranche A Principal Payment Date, to and including the Tranche A
Final Maturity Date; provided that any Tranche A Principal Payment Date that
would otherwise fall on a day that is not a Business Day shall fall on the
immediately preceding Business Day.
"Tranche B Applicable Margin" shall mean (i) during the period from
and including the Closing Date to but not including the date one year after
the Closing Date, 2.250% per annum; (ii) during the period from and including
the date one year after the Closing Date to but not including the date two
years after the Closing Date, 2.375% per annum; (iii) during the period from
and including the date two years after the Closing Date to but not including
the date three years after the Closing Date, 2.500% per annum; (iv) during the
period from and including the date three years after the Closing Date to but
not including the date four years after the Closing Date, 2.625% per annum;
and (iii) thereafter, 2.750% per annum
16
"Tranche B Commitment" shall mean, as to each Tranche B Lender, the
obligation of such Tranche B Lender, on and subject to the terms and
conditions of this Agreement, to make a Tranche B Loan in a principal amount
up to but not exceeding the amount set opposite the name of such Tranche B
Lender on Annex I hereto under the caption "Tranche B Commitment" or, in the
case of a Person that becomes a Tranche B Lender pursuant to an assignment
permitted under Section 14.06(b), as specified in the respective instrument of
assignment pursuant to which such assignment is effected. The original
aggregate principal amount of the Tranche B Commitments is $64,244,230.63;
provided that the aggregate principal amount of Tranche B Loans that may be
disbursed for the account of VVP Holdings shall not exceed $15,000,000.
"Tranche B Final Maturity Date" shall mean the date five years after
the Closing Date, provided that if such date is not a Business Day, the
Tranche B Final Maturity Date shall be the immediately preceding Business Day.
"Tranche B Lenders" shall mean (a) on the date hereof, the Lenders
having Tranche B Commitments specified on Annex I hereto and (b) thereafter,
the Lenders from time to time holding Tranche B Loans and Tranche B
Commitments after giving effect to any assignments thereof permitted by
Section 14.06(b).
"Tranche B Loan" shall have the meaning set forth in Section 2.01(b)
hereof.
"Tranche B Note" shall have the meaning set forth in Section 2.05
hereof.
"Tranche B Principal Payment Date" shall mean the date falling 18
months after the Closing Date and each date falling six months after the
previous Tranche B Principal Payment Date, to and including the Tranche B
Final Maturity Date; provided that any Tranche B Principal Payment Date that
would otherwise fall on a day that is not a Business Day shall fall on the
immediately preceding Business Day.
"Tranche C Agent" shall mean the Administrative Agent as defined in
the Tranche C Loan Agreement.
"Tranche C Lenders" shall mean the Lenders as defined in the Tranche
C Loan Agreement.
"Tranche C Loan Agreement" shall mean the loan agreement dated the
date hereof among Vitro Plan, the Tranche C Agent and the lenders signatory
thereto providing for a credit facility denominated in Pesos.
"UCC" shall mean the Uniform Commercial Code as in effect in the
State of New York.
"U.S. Guarantor" shall mean each of Vitro America, Super Sky
International, Super Sky Products and Super Sky Constructors.
17
"U.S. Obligor" shall mean VVP Holdings, VVP Syndication and each
U.S. Guarantor.
"Vitro" shall mean Vitro, S.A. de C.V., a Mexican corporation
(sociedad anonima de capital variable).
"Vitro AFG" shall mean Vitro AFG, S.A. de C.V., a Mexican
corporation (sociedad anonima de capital variable).
"Voting Shares" shall mean, with respect to any Person, any class or
classes of capital stock or other ownership interests pursuant to which the
holders thereof have the general voting power under ordinary circumstances to
elect directors, managers or trustees of such Person (irrespective of whether
or not, at the time, stock of any other class or classes has, or might have,
voting power by reason of the happening of any contingency).
1.02 Accounting Terms and Determinations. Unless otherwise specified
herein, all accounting terms used herein shall be interpreted, all accounting
determinations hereunder shall be made, and all financial statements required
to be delivered hereunder shall be prepared, in accordance with GAAP as in
effect from time to time, applied on a basis consistent with the most recent
audited financial statements of the Obligors delivered to the Lenders
hereunder.
SECTION 2. COMMITMENTS, ETC.
2.01 Loans.
(a) Each Tranche A Lender severally agrees, on and subject to the
terms and conditions of this Agreement, to make one term loan to the
Borrowers (each a "Tranche A Loan" and, collectively, the "Tranche A
Loans") in Dollars on a single Business Day on or before the Commitment
Termination Date, in a principal amount up to but not exceeding such
Tranche A Lender's Tranche A Commitment and, as to all Tranche A Lenders,
in an aggregate principal amount up to but not exceeding $80,000,000.
(b) Each Tranche B Lender severally agrees, on and subject to the
terms and conditions of this Agreement, to make one term loan to the
Borrowers (each a "Tranche B Loan" and, collectively, the "Tranche B
Loans") in Dollars on a single Business Day on or before the Commitment
Termination Date, in a principal amount up to but not exceeding such
Tranche B Lender's Tranche B Commitment and, as to all Tranche B Lenders,
in an aggregate principal amount up to but not exceeding $64,244,230.63.
(c) The proceeds of the Loans shall be used by the Borrowers solely
(i) to refinance Indebtedness of any Obligor (and to that end the
proceeds of the Loans may, to the extent required, be remitted (through a
loan transaction) or dividended by a Borrower to such Obligor), (ii) to
fund the Cash Reserve Account in accordance with Section 12.01(a) hereof
and (iii) to pay fees and expenses relating to the transactions
18
contemplated hereby. No Loan Party shall have any responsibility as to
the use of any of the proceeds of any Loan.
2.02 Borrowing. The Borrowers shall give the Administrative Agent
written notice of the Borrowing in substantially the form of Exhibit D hereto
(a "Notice of Borrowing") as provided in Section 4.04 hereof. Not later than
11:00 a.m. New York time on the date specified for the Borrowing, each Lender
shall make available the amount of the Loan or Loans to be made by it on such
date to the Administrative Agent, at the Administrative Agent's Account, in
immediately available funds, for account of the Borrowers. The amount so
received by the Administrative Agent shall, subject to the terms and
conditions of this Agreement, be applied to the payment of the fees and
expenses referred to in Section 6.01(j) hereof and otherwise remitted by the
Administrative Agent as agreed among the Borrowers and the Administrative
Agent in accordance with the terms of this Agreement, provided that, the
Administrative Agent shall make a portion of the Loans available to VVP
Syndication by remitting such amounts directly into the Cash Reserve Account
as provided in Section 12 hereof.
2.03 Fees. The Borrowers agree to pay to the Administrative Agent
for the account of the Agents and the Joint Lead Arrangers fees in such
amounts, on such terms and at such times as previously agreed upon among the
Borrowers and the Administrative Agent and the Joint Lead Arrangers.
2.04 Several Obligations; Certain Remedies Independent. The failure
of any Lender to make the Loan or Loans to be made by it on the occasion of
the Borrowing shall not relieve any other Lender of its obligation to make its
Loan or Loans on such date, but neither any Lender nor any Agent shall be
responsible for the failure of any other Lender to make the Loan or Loans to
be made by such other Lender on such date, and no Lender shall have any
obligation to either Agent or any other Lender for the failure by such Lender
to make any Loan or Loans required to be made by such Lender. The amounts
payable by the Borrowers at any time hereunder and under the Notes to each
Lender shall be a separate and independent debt, and each Lender shall,
subject to the terms of the Intercreditor Agreement, be entitled to protect
and enforce its individual rights arising out of this Agreement and the Notes
independently of any other Lender, except to the extent this Agreement
provides that the exercise of any right shall require the consent of the
Majority Lenders or of all of the Lenders, and, except as so required, it
shall not be necessary for any other Lender or either Agent to consent to, or
be joined as an additional party in, any proceedings to recover the payment of
any overdue amounts.
19
2.05 Notes. The Tranche A Loan by each Tranche A Lender shall be
evidenced by a promissory note (▇▇▇▇▇▇) signed by the Borrowers and the
Guarantors substantially in the form of Exhibit A-1 hereto (each, a "Tranche A
Note"), dated the date of such Tranche A Loan, payable to such Tranche A
Lender in an amount equal to the principal amount of such Tranche A Loan. The
Tranche B Loan by each Tranche B Lender shall be evidenced by a promissory
note (▇▇▇▇▇▇) signed by the Borrowers and the Guarantors substantially in the
form of Exhibit A-2 hereto (each, a "Tranche B Note" and, together with the
Tranche A Notes, the "Notes"), dated the date of such Tranche B Loan, payable
to such Tranche B Lender in an amount equal to the principal amount of such
Tranche B Loan. In the case of any conflict between the provisions of this
Agreement and the terms of any Note, the provisions of this Agreement shall
prevail.
SECTION 3. PAYMENTS OF PRINCIPAL AND INTEREST.
3.01 Repayment of Loans. (a) The Borrowers agree to repay
the full principal amount of the Tranche A Loans in six consecutive
semi-annual installments, one such installment to be payable on each
Tranche A Principal Payment Date, the amount of each such installment
to be equal to the percentage of the original aggregate amount of the
Tranche A Loans set forth below opposite the reference to the
relevant Tranche A Principal Payment Date:
Tranche A Principal Percentage
Payment Date
1 5%
2 10%
3 15%
4 20%
5 25%
6 25%
(b) The Borrowers agree to repay the full principal amount
of the Tranche B Loans in eight consecutive semi-annual installments,
one such installment to be payable on each Tranche B Principal
Payment Date, the amount of each such installment to be equal to the
percentage of the original aggregate amount of the Tranche B Loans
set forth below opposite the reference to the relevant Tranche B
Principal Payment Date:
Tranche B Principal Percentage
Payment Date
1 5%
2 5%
3 10%
4 10%
5 15%
6 15%
7 20%
8 20%
20
3.02 Interest.
(a) The Borrowers agree to pay interest on the unpaid principal
amount of the Tranche A Loan made by each Tranche A Lender for the
period from and including the date of such Tranche A Loan to but
excluding the date such Tranche A Loan shall be paid in full, at a
rate per annum equal to the LIBO Rate for each Interest Period plus
the Tranche A Applicable Margin.
(b) The Borrowers agree to pay interest on the unpaid principal
amount of the Tranche B Loan made by each Tranche B Lender for the
period from and including the date of such Tranche B Loan to but
excluding the date such Tranche B Loan shall be paid in full, at a
rate per annum equal to the LIBO Rate for each Interest Period plus
the Tranche B Applicable Margin.
(c) Notwithstanding the foregoing, the Borrowers agree to pay
interest at the applicable Post-Default Rate on any principal of the
Tranche A Loan or Tranche B Loan, respectively, of any Tranche A
Lender or Tranche B Lender, and on any other amount whatsoever
payable by the Borrowers to such Lender or either Agent hereunder,
that is not paid in full when due (whether at stated maturity, by
acceleration, or otherwise), for the period from and including the
due date thereof to but excluding the date the same is paid in full.
(d) Accrued interest on each Loan shall be payable on the last
day of each Interest Period and upon each payment or prepayment
thereof (on the principal amount so paid or prepaid), provided, that
interest payable at the Post-Default Rate shall be payable from time
to time on demand.
(e) Promptly after the determination of any interest rate
provided for herein or any change therein pursuant to this
Agreement, the Administrative Agent shall (without limiting the
requirements of Section 14.02 that all notices be in writing) give
written notice thereof to the Lenders and to the Borrowers. Each
determination by the Administrative Agent of an interest rate
hereunder shall be conclusive and binding for all purposes, absent
manifest error.
3.03 Optional Prepayments. The Borrowers shall have the right to
prepay the Tranche A Loans and the Tranche B Loans in whole or in part at any
time or from time to time, which prepayment shall in each case be made
together with accrued and unpaid interest thereon and all other amounts
payable under this Agreement (including without limitation Section 5.04
hereof) without premium or penalty (subject to Section 5.04 hereof), provided,
that (i) the Borrowers shall give the Administrative Agent notice of each
prepayment under this Section 3.03 as provided in Section 4.04 hereof (and,
upon the date specified in any such notice, the amount to be prepaid shall
become due and payable hereunder), (ii) each partial prepayment hereunder
shall be in the aggregate amount of not less than $5,000,000 or an integral
multiple of $1,000,000 in excess thereof, (iii) each prepayment hereunder
shall be applied to the installments of principal thereof in inverse order of
maturity, and (iv) all prepayments under this Section 3.03
21
shall be applied on a pro rata basis among the Tranche A Loans, the Tranche B
Loans and loans under the Tranche C Loan Agreement on the basis of the
respective aggregate outstanding principal amounts thereof, in accordance with
the Intercreditor Agreement. Amounts prepaid hereunder may not be reborrowed.
3.04 Mandatory Prepayments. The Borrowers shall provide the Lenders
with written notice (a "Change of Control Notice") within five Business Days
of the occurrence of any Change of Control and the Borrowers shall, within
thirty Business Days after delivery of such Change of Control Notice, prepay
the outstanding principal amount of all Loans and all accrued and unpaid
interest thereon, together with all other amounts payable by the Borrowers
under this Agreement. Amounts prepaid hereunder may not be reborrowed.
SECTION 4. PAYMENTS, ETC.
4.01 Payments
(a) The Borrowers shall make each payment of principal of, and
interest on, the Loans and of all fees and other amounts payable
hereunder not later than 12:00 noon (New York time) on the date when
due, in Dollars and immediately available funds, without deduction,
set-off or counterclaim, to the Administrative Agent's Account for
the account of the relevant Loan Parties.
(b) Each Borrower shall, at the time of making each payment
under this Agreement and the Notes for account of any Lender,
specify to the Administrative Agent the amounts payable by such
Borrower hereunder to which such payment is to be applied (and in
the event that such Borrower fails to so specify, or if an Event of
Default has occurred and is continuing, the Administrative Agent may
distribute such payment to the Lenders for application in such
manner as it or the Majority Lenders, subject to Section 4.02
hereof, may determine to be appropriate).
(c) Each payment received by the Administrative Agent under
this Agreement for account of any Lender shall be paid by the
Administrative Agent promptly to such Lender, in immediately
available funds, for account of such Lender's Applicable Lending
Office.
(d) If the due date of any payment under this Agreement would
otherwise fall on a day that is not a Business Day, such date shall
be the immediately preceding Business Day.
4.02. Pro Rata Payments. Except to the extent otherwise expressly
provided herein, (a) the Loans of a particular Tranche shall be made by the
relevant Lenders pro rata according to the amounts of their respective
Commitments of such Tranche; (b) each payment or prepayment of principal of
the Tranche A Loans and Tranche B Loans shall be made for account of the
Lenders pro rata in accordance with the respective unpaid principal amounts of
the Loans of such Tranche held by them; and (c) each payment of interest on
the Tranche A Loans and
22
Tranche B Loans shall be made for account of the
Lenders pro rata in accordance with the respective amounts of interest on the
Loans of such Tranche then due and payable to them.
4.03 Computations. Interest on the Loans shall be computed on the
basis of a year of 360 days and the actual number of days elapsed occurring in
the period for which interest shall be payable, except that interest
determined pursuant to Section 5.02 hereof on the basis of the Base Rate shall
be determined on the basis of a year of 365 or 366 days and the actual number
of days elapsed (including in each case the first day but excluding the last
day).
4.04 Certain Notices. The Notice of Borrowing and each notice of
optional prepayment shall be effective only if received by the Administrative
Agent not later than 11:00 a.m. New York time on the date three Business Days
prior to the date of the Borrowing or optional prepayment. The Notice of
Borrowing shall specify the amount to be borrowed and the date of the
Borrowing (which shall be a Business Day). Each notice of optional prepayment
shall specify (subject to Section 3.03 hereof) the amount to be prepaid and
the date of prepayment (which shall be a Business Day). The Administrative
Agent shall promptly notify the Lenders of the contents of each such notice.
4.05 Non-Receipt of Funds by the Administrative Agent. Unless the
Administrative Agent shall have been notified in writing by any Lender or the
Borrowers (each, a "Payor") prior to the date on which the Payor is to make
payment to the Administrative Agent (in the case of a Lender) of the proceeds
of a Loan to be made by such Lender hereunder or (in the case of the
Borrowers) of a payment to the Administrative Agent for account of the Lenders
hereunder (any such payment being herein called the "Required Payment") that
such Payor will not make the Required Payment, the Administrative Agent may
(but shall not be obligated to) assume that the Payor is making the Required
Payment available to the Administrative Agent and, in reliance upon such
assumption, make available to the relevant Lenders or the Borrowers, as the
case may be, a corresponding amount. If such amount is not made available to
the Administrative Agent by the required time on such date, the Payor shall
pay to the Administrative Agent, on demand, such amount with interest thereon
at (in the case of a Lender) the Federal Funds Effective Rate and (in the case
of the Borrowers) equal to the rate specified in Section 3.02(c) hereof, in
each case until such amount is made available to the Administrative Agent. A
certificate of the Administrative Agent submitted to any Payor with respect to
any amounts owing under this Section shall be conclusive in the absence of
manifest error.
4.06 Sharing of Payments.
(a) If any Lender shall obtain payment of any principal of or
interest on any Loan of any Tranche or payment of any other amount under
this Agreement through the exercise of any right of set-off, banker's
lien or counterclaim or similar right or otherwise (other than from the
Administrative Agent as provided herein), and, as a result of such
payment, such Lender shall have received a percentage of the principal of
or interest on such Loan or such other amounts then due hereunder by any
Borrower to such Lender in excess of its pro rata share thereof, it shall
promptly purchase from such other Lenders participations in (or, if and
to the extent specified by such Lender, direct interests in) the Loans of
such Tranche or such other amounts, respectively, owing to such other
Lenders
23
(or in interest due thereon, as the case may be) in such amounts, and
make such other adjustments from time to time, as shall be equitable, to
the end that all the Lenders shall share the benefit of such excess
payment (net of any expenses that may be incurred by such Lender in
obtaining or preserving such excess payment) pro rata in accordance with
the unpaid principal of and/or interest on the Loans of such Tranche or
such other amounts, respectively, owing to each of the Lenders. To such
end all the Lenders shall make appropriate adjustments among themselves
(by the resale of participations sold or otherwise) if such payment is
rescinded or must otherwise be restored; provided, that if any Lender
shall commence an action or proceeding in any court to collect the
principal of or interest on a Loan held by, or any other amount owed to,
such Lender, and as a result thereof shall receive a disproportionate
payment (other than any such payment received by such Lender as a result
of attachment of, or set-off, exercise of banker's lien or any other
proceedings against, deposits or other property held by such Lender),
such Lender shall not be required to share any portion of such
disproportionate payment with any other Lender which, having received
notice from such first-mentioned Lender (through the Administrative
Agent) of such action or proceeding, had the legal right to, but did not,
join such action or proceeding or commence and diligently prosecute a
separate action or proceeding in any appropriate court to collect (as
applicable) the principal of or interest on the Loans held by, or other
such amount owed to, such other Lender.
(b) Nothing contained herein shall require any Lender to exercise
any such right or shall affect the right of any Lender to exercise, and
retain the benefits of exercising, any such right with respect to any
other indebtedness or obligation of any Obligor.
4.07 Joint and Several Obligations. All of the obligations of the
Borrowers under this Agreement and under the other Loan Documents are joint
and several. Without limitation and for the avoidance of doubt, each of the
waivers described in Section 7.02 and the limitation set forth in Section 7.08
hereof shall be deemed to apply to the obligations of each Borrower hereunder
as if such Borrower were a Guarantor.
SECTION 5. YIELD PROTECTION, ETC.
5.01 Additional Costs.
(a) If, on or after the date hereof, the adoption of any Requirement
of Law, or any change in any Requirement of Law, or any change in the
interpretation or administration thereof by any court or other
Governmental Authority charged with the interpretation or administration
thereof, or compliance by any Lender (or its Applicable Lending Office)
with any request or directive (whether or not having the force of law) of
any such Governmental Authority, shall impose, modify or deem applicable
any reserve (including, without limitation, any such requirement imposed
by the Board of Governors of the Federal Reserve System), special
deposit, contribution, insurance assessment or similar requirement
against assets of, deposits with or for the account of, or credit
24
extended by, any Lender (or its Applicable Lending Office) or shall
impose on any Lender (or its Applicable Lending Office) or the London
interbank market any other condition affecting any Loan, Note or
Commitment of such Lender, and the result of any of the foregoing is to
increase the cost to such Lender (or its Applicable Lending Office) of
making or maintaining any Loan, or to reduce the amount of any sum
received or receivable by such Lender (or its Applicable Lending Office)
under this Agreement or under any Note, by an amount reasonably deemed by
such Lender to be material (other than Taxes, which shall be treated in
accordance with Section 5.05 hereof), then the Borrowers shall pay to
such Lender on the date five (5) business days after demand, such
additional amount or amounts as will compensate such Lender for such
increased cost or reduction; provided, that this clause (a) shall not be
deemed to apply to any increase in cost to, or reduction in an amount
received or receivable by, such Lender described above in this clause (a)
to the extent attributable to regulatory action taken by reason of the
occurrence of a material adverse change in the financial condition or
capitalization of such Lender.
(b) If any Lender shall have determined that, after the date hereof,
the adoption of any Requirement of Law regarding capital adequacy, or any
change therein, or any change in the interpretation or administration
thereof by any Governmental Authority charged with the interpretation or
administration thereof, or any request or directive regarding capital
adequacy (whether or not having the force of law) of any such
Governmental Authority, has or would have the effect of reducing the rate
of return on capital of such Lender (or its parent) as a consequence of
such Lender's obligations hereunder or its Loan or Loans to a level below
that which such Lender (or its parent) could have achieved but for such
adoption, change, request or directive by an amount reasonably deemed by
it to be material, then from time to time, within 15 days after demand
(which refers to the relevant Requirement of Law in reasonable detail) by
such Lender, the Borrowers shall pay to such Lender such additional
amount or amounts as will compensate such Lender (or its parent) for such
reduction; provided, that this clause (b) shall not be deemed to apply to
any such reduction incurred by a Lender to the extent attributable to
regulatory action taken by reason of the occurrence of a material adverse
change in the financial condition or capitalization of such Lender.
(c) Each Lender will promptly notify the Borrowers of any event of
which it has knowledge, occurring after the date hereof, which will
entitle such Lender to compensation pursuant to this Section, such notice
to provide reasonable detail of such event. Before giving any such notice
pursuant to this subsection (c) such Lender shall designate a different
Applicable Lending Office if such designation (i) will, in the reasonable
judgment of such Lender, avoid the need for, or reduce the amount of,
such compensation and (ii) will not, in the reasonable judgment of such
Lender, be materially disadvantageous to such Lender. A certificate of
any Lender claiming compensation under this Section 5.01, setting forth
the additional amount or amounts to be paid to it hereunder and providing
reasonable detail as aforesaid, shall be conclusive and binding on the
Borrowers in the absence of manifest error. In determining such amount,
such Lender may use any reasonable averaging and attribution methods as
long as such methods are consistent with such Lender's treatment of
customers similar to the
25
Borrowers having generally similar provisions in their agreements with
such Lender. Notwithstanding anything to the contrary in clauses (a) and
(b) above, no Lender shall be entitled to make a claim for compensation
with respect to any event occurring more than 180 days prior to the date
on which such Lender notifies the Borrowers of its claim for
compensation.
(d) If any Lender requests compensation under this Section 5.01, the
Borrowers may, at their sole expense and effort, upon notice to such
Lender and the Administrative Agent, require such Lender to assign and
delegate, without recourse (subject to the restrictions contained in
Section 14.06), all of its interests, rights and obligations under this
Agreement to an assignee that shall assume such obligations (which
assignee may be another Lender, if a Lender accepts such assignment);
provided, that (i) such assignee shall be subject to the prior approval
of the Administrative Agent, (ii) such Lender shall have received payment
in full of the outstanding principal of its Loans, accrued interest
thereon, accrued fees and all other amounts payable to it hereunder, and
(iii) such assignment is reasonably expected to result in a reduction in
such compensation or payments. A Lender shall not be required to make any
such assignment and delegation if, prior thereto, as a result of a waiver
by such Lender or otherwise, the circumstances entitling the Borrowers to
require such assignment and delegation cease to apply.
5.02 Substitute Basis. If, on or prior to the first day of any
Interest Period (an "Affected Interest Period"):
(a) the Administrative Agent determines that, by reason of
circumstances affecting the London interbank eurodollar market, the "LIBO
Rate" cannot be determined pursuant to the definition thereof, or
(b) the Majority Lenders determine and notify the Administrative
Agent that the relevant rates of interest referred to in the definition
of "LIBO Rate" in Section 1.01 hereof upon the basis of which the rate of
interest for Loans for such Affected Interest Period is to be determined
will not be adequate to cover the cost to such Lenders of making or
maintaining their Loans for such Affected Interest Period,
then the Administrative Agent shall give notice thereof (a "Rate Determination
Notice") to the Borrowers and the Lenders as soon as practicable thereafter.
If such notice is given, during the ninety-day period following such Rate
Determination Notice (the "Negotiation Period") the Administrative Agent and
the Borrowers shall negotiate in good faith with a view to agreeing upon a
substitute interest rate basis (having the written approval of the Majority
Lenders) for the Loans which shall reflect the cost to the Lenders of funding
their Loans from alternative sources (a "Substitute Basis"), and if such
Substitute Basis is so agreed upon during the Negotiation Period, such
Substitute Basis shall apply in lieu of the LIBO Rate to all Interest Periods
commencing on or after the first day of the Affected Interest Period, until
the circumstances giving rise to such notice have ceased to apply. If a
Substitute Basis is not agreed upon during the Negotiation Period, the Base
Rate as in effect from time to time shall apply in lieu of the LIBO Rate for
the relevant Interest Periods.
26
5.03 Illegality. Notwithstanding any other provision of this
Agreement, in the event that on or after the date hereof the adoption of or
any change in any Requirement of Law or in the interpretation or application
thereof by any Governmental Authority shall make it unlawful for any Lender or
its Applicable Lending Office to make or maintain Loans hereunder (and, in the
opinion of such Lender, the designation of a different Applicable Lending
Office would either not avoid such unlawfulness or would be disadvantageous to
such Lender), then such Lender shall promptly notify the Borrowers thereof
(with a copy to the Administrative Agent) following which (a) such Lender's
Commitment shall be suspended until such time as such Lender may again make
and maintain Loans hereunder and (b) if such Requirement of Law shall so
mandate, such Lender's Loans shall be prepaid by the Borrowers, together with
accrued and unpaid interest thereon and all other amounts payable by the
Borrowers under this Agreement, on or before such date as shall be mandated by
such Requirement of Law; provided, however, that if it is lawful for such
Lender to maintain its Loans through the last day of the current Interest
Period, such payment shall be made on such date; provided further, however,
that the relevant Lender shall use its reasonable efforts to avoid or minimize
the effect of such Requirement of Law, including by transferring the affected
Loan or Loans to a different lending office, if it can do so without material
cost, expense or legal detriment to it, in its sole and absolute judgment. In
the event that the effects of the Requirement of Law cannot be avoided or
minimized by such Lender as provided in this Section 5.03, the Borrowers may,
if no Default has occurred and is continuing, at their sole expense and
effort, upon notice to such Lender and the Administrative Agent, require such
Lender to assign and delegate, without recourse (subject to the restrictions
contained in Section 14.06), all of its interest, rights and obligations under
this Agreement to an assignee that shall assume such obligations (which
assignee may be another Lender, if such other Lender accepts such assignment);
provided, that (i) such assignee shall be subject to the prior approval of the
Administrative Agent, (ii) such Lender shall have received payment in full of
the outstanding principal of its Loans, accrued interest thereon, accrued fees
and all other amounts payable to it hereunder, and (iii) such assignment is
reasonably expected to result in a reduction in such compensation or payments.
A Lender shall not be required to make any such assignment and delegation if,
prior thereto, as a result of a waiver by such Lender or otherwise, the
circumstances entitling the Borrowers to require such assignment and
delegation cease to apply.
5.04 Compensation. The Borrowers shall pay to the Administrative
Agent for account of each Lender, upon the request of such Lender through the
Administrative Agent, such amount or amounts (if any) as shall be sufficient
to compensate it for any loss, cost or expense that such Lender determines is
attributable to:
(a) any optional or mandatory prepayment of any Loan made by
such Lender for any reason on a date other than the last day of an
Interest Period; and
(b) any failure by the Borrowers for any reason (including,
without limitation, the failure of any of the conditions precedent
specified in Section 6 hereof to be satisfied) to make a Borrowing on
the date for such Borrowing specified in the Notice of Borrowing
given pursuant to Section 2.02 hereof, or to prepay such Loan in
accordance with a notice of prepayment under Section 3.03 hereof or a
Change of Control Notice under
27
Section 3.04 hereof or any assignment by such Lender pursuant to
Section 5.01(d) or Section 5.03 hereof on a date other than the last
day of an Interest Period.
Each Lender will furnish to the Borrowers a certificate setting forth the
basis and amount of each request by such Lender for compensation under this
Section 5.04, which certificate shall be conclusive and binding on the
Borrowers in the absence of manifest error.
5.05 Taxes.
(a) All payments on account of the principal of and interest on the
Loans and the Notes, fees and all other amounts payable hereunder by the
Borrowers to or for the account of each Agent or any Lender, including,
without limitation, amounts payable under paragraph (b) of this Section
5.05, shall be made free and clear of and without reduction or liability
for Covered Taxes, unless otherwise required by applicable law, decree or
regulation.
(b) The Borrowers shall indemnify each Agent and each Lender
against, and reimburse them upon demand for, any Covered Taxes paid at
any time by such Agent or such Lender (as the case may be) and any loss,
liability, claim or expense, including interest, penalties, surcharges
and legal fees, that such Agent or such Lender may incur at any time
arising out of or in connection with any failure of the Borrowers to make
any payment of Covered Taxes when due. Each Agent and Lender agrees
promptly to notify the Borrowers of any event known to it that would give
rise to a payment under this Section 5.05(b) by the Borrowers.
(c) Subject to compliance by the Agent and the relevant Lender with
its obligations specified in this Section 5.05, in the event that any
Borrower, any Person making a payment hereunder on behalf of such
Borrower or any Agent shall be required by applicable law, decree or
regulation to deduct or withhold Covered Taxes from any amounts payable
on, under or in respect of this Agreement, any other Loan Document or the
Loans, the sum payable shall be increased as necessary so that after
making all required deductions and withholdings the recipient of such
payment receives an amount equal to the sum it would have received had no
such deduction or withholding been made.
(d) Each Borrower shall furnish to the Administrative Agent copies,
certified by the Responsible Officer of such Borrower, of the tax forms,
duly completed and evidencing each payment of Covered Taxes required
under this Section 5.05, as soon as practicable (and in any event no
later than 45 days) after the date such payment is made, and such
Borrower shall promptly furnish to the Administrative Agent at its
request or at the request of any Lender (through the Administrative
Agent) or the other Agent any other information, documents and receipts
that the Administrative Agent or such other Agent or such Lender may
reasonably require to establish that full and timely payment has been
made of all Covered Taxes required to be paid under this Section 5.05.
28
(e) Each Borrower agrees to pay all present and future
stamp, court or documentary taxes and any other excise taxes, charges
or similar levies and any related interest or penalties incidental
thereto imposed by Mexico, or any jurisdiction from which any amount
payable hereunder is made, or any municipality or other political
subdivision or taxing authority thereof or therein which arises from
any payment made by such Borrower hereunder or from the execution,
delivery, enforcement or registration (if mandatory under Mexican
law) of any of the Loan Documents (hereinafter referred to as "Other
Applicable Taxes").
(f) Each Lender (other than a Mexican Bank) party to this
Agreement on the date hereof (A) represents and warrants to the
Borrowers that, as of the date hereof, (i) such Lender is registered
with the Ministry of Finance as a foreign financial institution in
the registry referred to in Article 197 (or any successor provision)
of the Mexican Income Tax Law (Ley del Impuesto sobre la Renta), and
intends to be the effective beneficiary of the interest payable under
this Agreement and the other Loan Documents, (ii) such Lender is a
resident of a country (or the main office of which, if lending
through a branch or agency, is resident of a country) with which
Mexico has entered into a treaty for the avoidance of double taxation
which is in effect, and complies with the requirements provided in
such treaty to apply a reduced withholding tax rate on interest and
(iii) such treaty provides that the rate of withholding tax on
interest payments received by a foreign financial institution on a
loan is 4.9% or less, and (B) agrees that it will use best efforts to
(x) continue to comply with the requirements of such treaty for so
long as it provides a reduced withholding tax rate under the Mexican
Income Tax Law or such double taxation treaty, (y) file all
documentation necessary to maintain its registration with the
Ministry of Finance in the registry referred to in Article 197 (or
any successor provision) of the Mexican Income Tax Law, so long as
such requirement remains applicable, and (z) maintain its status
(directly or through its main office, if lending through a branch or
agency) as a resident for tax purposes of the country of which it is
currently a resident and be the effective beneficiary of any interest
paid.
(g) Each Lender (other than a Mexican Bank) and the
Administrative Agent will use all reasonable commercial efforts to
provide to the Borrowers (or as appropriate, complete and file with
the appropriate governmental authority), within 60 days of a written
request made by the Borrowers, such duly completed form,
certification or similar documentation, if any, as is then required
under applicable law, regulation or published administrative rule or
double taxation treaty to which Mexico is a party, which is in
effect, in order to obtain an exemption from, or reduced rate of,
deduction, payment or withholding in respect of Covered Taxes to
which such Lender or the Administrative Agent would be entitled on
interest payments made to such Lender or the Administrative Agent
pursuant to a tax treaty that is in effect or the law or regulations
of the relevant jurisdiction; provided, that neither any Lender nor
the Administrative Agent shall have any obligation to provide such
form, certification or similar document (unless required under
applicable law) if, in the sole and absolute judgment of such Lender
or the Administrative Agent, as the case may be, it would be required
to disclose confidential information and such disclosure would be
materially disadvantageous to such Lender or the Administrative
Agent.
29
(h) Any Lender that is entitled to an exemption from or
reduction of United States withholding tax with respect to payments
under this Agreement shall deliver to the applicable Borrower (with
a copy to the Administrative Agent), at the time or times prescribed
by applicable law, such properly completed and executed
documentation prescribed by applicable law or reasonably requested
by such Borrower as will permit such payments to be made without
withholding or at a reduced rate.
(i) Any Lender (other than a Mexican Bank) claiming any
additional amounts payable pursuant to this Section 5.05, which are
in excess of the tax imposed at the lowest rate of withholding that
would be otherwise applicable to such Lender and which exceed
additional amounts payable on the date hereof (provided, that such
Lender is in compliance with the requirements set forth in Section
5.05(f), (g) and (i)), agrees to use reasonable efforts (consistent
with its internal policy and legal and regulatory restrictions) to
change the jurisdiction of its Applicable Lending Office if, in the
sole and absolute judgment of such Lender, such change (i) would
eliminate or reduce any such excess additional amounts and (ii)
would not otherwise be materially disadvantageous to such Lender.
(j) No Borrower shall be required to indemnify any Lender under
clauses (a), (b) or (c) of this Section 5.05 for any additional
amounts in respect of Covered Taxes to the extent that such Covered
Taxes or portion thereof would not have been withheld but for the
fact that the representation and warranty in clause (f)(A) above is
incorrect with respect to such Lender or the failure of such Lender
to comply with the provisions of clauses (f)(B), (g) (unless such
Lender is a Mexican Bank) and (h) of this Section 5.05.
(k) If a Loan Party determines, in its sole discretion, that it
has received a refund of any Covered Taxes as to which it has been
indemnified by one of the Borrowers or with respect to which one of
the Borrowers has paid additional amounts pursuant to this Section
5.05, it may, in its sole discretion, pay over such refund to the
Borrower (but only to the extent of indemnity payments made, or
additional amounts paid, by the applicable Borrower under this
Section 5.05 with respect to the Covered Taxes giving rise to such
refund), net of all out-of-pocket expenses of the Loan Party and
without interest (other than any interest paid by the relevant
Governmental Authority with respect to such refund); provided, that
the applicable Borrower, upon request of the Loan Party, agrees to
repay the amount paid over to such Borrower (plus any penalties,
interest or other charges imposed by the relevant Governmental
Authority) to the Loan Party in the event the Loan Party is required
to repay such refund to such Governmental Authority. This Section
5.05 (k) shall not be construed to require the Loan Party to make
available its tax returns (or any other information which it deems
confidential) to the Borrowers or any other Person.
SECTION 6. CONDITIONS PRECEDENT.
30
6.01 Conditions to Effectiveness. The effectiveness of Sections
2.01(a) and 2.01(b) hereof shall be subject to the conditions precedent that
(i) the Majority Lenders shall not have determined, and notified the
Administrative Agent, that an event or circumstance has occurred since
December 31, 2001, that has had a Material Adverse Effect, (ii) the Majority
Lenders shall not have determined, and notified the Administrative Agent, that
a material adverse change has occurred since December 31, 2001, in the
political, economic or financial condition of Mexico or the United States or
in the market for loan or debt securities of Mexican borrowers, and (iii) the
Administrative Agent shall have received the following documents (with
certified English translations of documents not in English, except for the
estatutos sociales, powers of attorney and the corporate authorizations), each
of which shall be in form and substance satisfactory to the Administrative
Agent (provided, that such conditions shall be satisfied not later than March
5, 2003):
(a) Executed Agreement. This Agreement, duly executed and
delivered by the Obligors and each of the other parties hereto.
(b) Cash Reserve Account and Account Control Agreement. The
Account Control Agreement, duly executed and delivered by VVP
Syndication, the Collateral Agent and the Intermediary, together
with (i) a certification by the Borrowers as of the Closing Date as
to the Consolidated EBITDA of the Guarantors on a combined basis for
the then most recently completed period of four consecutive fiscal
quarters of the Guarantors and the Consolidated EBITDA of Vitro Plan
for such period, and (ii) irrevocable written instructions signed by
Vitro Plan and addressed to the Administrative Agent, in form and
substance satisfactory to the Administrative Agent, directing that a
portion of the proceeds of the Loans equal to the Required Cash
Reserve Balance shall be remitted directly to the Cash Reserve
Account.
(c) Intercreditor Agreement. The Intercreditor Agreement, duly
executed and delivered by the Borrowers, the Creditors, the
Administrative Agent, the Collateral Agent and the Tranche C Agent.
(d) Communications Agreement. The Communications Agreement,
duly executed and delivered by the Borrowers and the Administrative
Agent.
(e) Approvals. Certified copies of all licenses, consents,
authorizations and approvals of, and notices to and filings and
registrations with, any Governmental Authority (including, without
limitation, all foreign exchange approvals), and of all third-party
consents and approvals, if any, necessary in connection with the
making and performance by each Obligor of the Loan Documents to
which it is a party and the transactions contemplated hereby and
thereby.
(f) Corporate Documents. (i) The estatutos sociales,
certificate of incorporation or other constitutive documents of each
Obligor, certified by a Mexican notary public in the case of each
Mexican Obligor and certified by an appropriate officer of such
Obligor as true and correct and in full force and effect;
31
(ii) in the case of each Mexican Obligor, the powers of
attorney, certified by a Mexican notary public, authorizing the
relevant officers of each Obligor to execute and deliver the
Loan Documents to which such Obligor is a party (including
authority to execute titulos de credito and for actos de
dominio); and
(iii) corporate resolutions, in form and substance
reasonably satisfactory to the Administrative Agent,
authorizing the making and performance by each Obligor of the
Loan Documents to which such Obligor is a party if required by
such Obligor's corporate documents.
(g) Incumbency Certificate. A certificate of each Obligor in
substantially the form of Exhibit E hereto as to the authority,
incumbency and specimen signatures of the persons who have executed
the Loan Documents and any other documents in connection herewith on
behalf of such Obligor.
(h) Opinions of Counsel.
(i) An opinion, dated the Closing Date, of ▇▇▇▇▇ y ▇▇▇▇▇▇▇
Abogados, S.C., special Mexican counsel to the Mexican
Obligors, in substantially the form of Exhibit F hereto.
(ii) An opinion, dated the Closing Date, of Cravath,
Swaine & ▇▇▇▇▇, special New York counsel to the Obligors, in
substantially the form of Exhibit G hereto.
(iii) An opinion, dated the Closing Date, of ▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇, S.C., special Mexican counsel to the Agents,
in substantially the form of Exhibit H hereto.
(iv) An opinion, dated the Closing Date, of special
Colombian counsel to the Colombian Guarantor, as to such
matters relating to its obligations hereunder as the
Administrative Agent may reasonably require.
(v) An opinion, dated the Closing Date, of special
Guatemalan counsel to each Obligor that is organized under the
laws of Guatemala, as to such matters relating to its
obligations hereunder as the Administrative Agent may
reasonably require.
(vi) An opinion, dated the Closing Date, of special Swiss
counsel to each Swiss Guarantor, as to such matters relating to
its obligations hereunder as the Administrative Agent may
reasonably require.
(vii) An opinion, dated the Closing Date, of special
Wisconsin counsel to each Guarantor organized under the law of
the State of Wisconsin, as to such matters relating to its
obligations hereunder as the Administrative Agent may
reasonably require.
32
(viii) An opinion, dated the Closing Date, of
Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, special New York
counsel to the Administrative Agent, in substantially the
form of Exhibit I hereto.
(i) Process Agent Acceptance. (i) A Process Agent
Acceptance, duly executed and delivered by the Process Agent,
and (ii) a Mexican law notarized power of attorney of each
Mexican Obligor appointing such Process Agent.
(j) Fees. Irrevocable authorization by the Borrowers to
deduct all fees referred to in Section 2.03 hereof and all
reasonable and documented accrued fees and expenses of each
Agent and of the expenses then due and payable under Section
14.03 hereof, including, without limitation, the reasonable and
documented fees and expenses of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇
LLP, special New York counsel to the Administrative Agent,
counsel to the Collateral Agent, ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇,
S.C., special Mexican counsel to the Agents, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇ LLP, special counsel to Comerica Bank, in connection
with the negotiation, preparation, execution and delivery of
the Loan Documents and the making of the Loans hereunder, and
also including all stamp taxes or similar taxes in connection
with the Loan Documents, from the proceeds of the Loans;
provided, that a statement of such fees and expenses shall have
been submitted at least two Business Days prior to the
Borrowing Date.
(k) Licensing Agreement. Certified copies of (i) the
Licensing Agreement ("Contrato de Licencia de Tecnologia y
Asistencia Tecnica") dated as of December 19, 2001 among IP
Vitro, Vitrocar, S.A. de C.V., as Licensor and Distribuidora
Nacional ▇▇ ▇▇▇▇▇▇, ▇.▇. de C.V., Vitro ▇▇▇▇▇▇ y Cristal, S.A.
de C.V. and Vitro Automotriz, S.A. de C.V., as Licensees and
(ii) an Amendment to such Licensing Agreement in form and
substance satisfactory to the Administrative Agent, providing
for the subordination of the rights of IP Vitro to receive
royalty payments under such Licensing Agreement.
(l) Pro Forma Certificate. A certificate of Vitro Plan
setting forth in reasonable detail the calculations required to
establish whether Vitro Plan would have been in compliance with
the requirements of Sections 10.01(a), (b) and (c) hereof on
and as of December 31, 2002 if the Loans under this Agreement
were reflected on a pro forma basis in the financial statements
of Vitro Plan for the fiscal year ending on such date.
(m) Other Documents. Such other documents relating hereto
as either Agent or any Lender shall reasonably request.
6.02 Additional Conditions to Borrowing. The obligation of each
Lender to make its Loan or Loans hereunder on the Borrowing Date is also
subject to further conditions precedent that both immediately prior to the
making of such Loan or Loans and also after giving effect thereto and to the
intended use thereof:
(A) no Default shall have occurred and be continuing;
33
(B) the representations and warranties made by the Obligors
in this Agreement shall be true on and as of the Borrowing Date and
immediately after giving effect to the application of the proceeds of
the Loans with the same force and effect as if made on and as of such
date (or, in the case of any representation and warranty that
expressly relates to a specific date, as of such specific date);
(C) the Administrative Agent shall have received the Notes
evidencing the Loans in accordance with Section 2.05 hereof;
(D) the Administrative Agent shall have received the Notice
of Borrowing in accordance with Section 2.02 hereof; and
(E) the Administrative Agent shall have received irrevocable
instructions signed by the Borrowers, in form and substance
satisfactory to the Administrative Agent, as to the remittance by the
Administrative Agent of the proceeds of the Loans (such instructions
to be consistent with the provisions of Sections 2.01(c) and 6.01(j)
hereof).
The Notice of Borrowing shall constitute a certification by the Borrowers that
the conditions set forth in clauses (A) and (B) of this Section 6.02 have been
fulfilled (both as of the date of such notice and, unless the Borrowers
otherwise notify the Administrative Agent prior to the Borrowing Date, as of
the Borrowing Date).
SECTION 7. GUARANTEE.
7.01 The Guarantee. The Guarantors hereby jointly and severally
guarantee to the Loan Parties the prompt payment in full when due (whether at
stated maturity, by acceleration or otherwise) of the principal of and
interest on the Loans and the Notes and all fees, indemnities and other
amounts whatsoever now or hereafter payable or becoming payable by the
Borrowers hereunder and under the other Loan Documents, in each case strictly
in accordance with the terms thereof (the obligations of the Borrowers to pay
such amounts being herein collectively called the "Guaranteed Obligations").
The Guarantors hereby further jointly and severally agree that if the
Borrowers shall fail to pay in full when due (whether at stated maturity, by
acceleration or otherwise) any of the Guaranteed Obligations, the Guarantors
will promptly pay the same upon receipt from the Administrative Agent of
written demand for payment thereof, without any other demand or notice
whatsoever, and that in the case of any extension of time of payment or
renewal of any of the Guaranteed Obligations, the same will be promptly paid
in full when due (whether at extended maturity, by acceleration or otherwise)
in accordance with the terms of such extension or renewal. This Agreement is a
continuing guaranty and is a guaranty of payment and is not merely a guaranty
of collection.
7.02 Acknowledgments, Waivers and Consents. Each Guarantor agrees
that the obligations of such Guarantor under Section 7.01 hereof shall, to the
fullest extent permitted by applicable law, be absolute, irrevocable and
unconditional under any and all circumstances. Without limiting the foregoing,
each Guarantor agrees that:
34
(a) The occurrence of any one or more of the following shall,
to the fullest extent permitted by applicable law, not affect the
enforceability or effectiveness of this Section 7 in accordance with
its terms or affect, limit, reduce, discharge or terminate the
liability of such Guarantor, or the rights, remedies, powers and
privileges of the Administrative Agent, the Collateral Agent or any
Lender under this Section 7:
(i) any modification or amendment (including without
limitation by way of amendment, extension, renewal or waiver),
or any acceleration or other change in the time for payment or
performance of the terms of all or any part of the Guaranteed
Obligations or any Loan Document, or any other agreement or
instrument whatsoever relating thereto, or any modification of
the Commitments;
(ii) any release, termination, waiver, abandonment, lapse
or expiration, subordination or enforcement of the liability of
any other Guarantor under this Agreement or of any other
guarantee of all or any part of the Guaranteed Obligations;
(iii) any application of the proceeds of any other
guarantee (including without limitation any letter of credit or
the obligations of any other guarantor of all or any part of
the Guaranteed Obligations) to all or any part of the
Guaranteed Obligations;
(iv) any release of any other Person (including without
limitation any other guarantor with respect to all or any part
of the Guaranteed Obligations) from any personal liability with
respect to all or any part of the Guaranteed Obligations;
(v) any settlement, compromise, release, liquidation or
enforcement, upon such terms and in such manner as the
Administrative Agent may determine or as applicable law may
dictate, of all or any part of the Guaranteed Obligations or
any other guarantee of (including without limitation any letter
of credit issued with respect to) all or any part of the
Guaranteed Obligations;
(vi) the giving of any consent to the merger or
consolidation of, the sale of a substantial portion of the
assets by, or other restructuring or termination of the
corporate existence of any Borrower or any other Person or any
disposition of any shares of any Guarantor;
(vii) any proceeding against any Obligor with respect to
all or any part of the Guaranteed Obligations or any collateral
provided by any other Person or the exercise of any rights,
remedies, powers and privileges of the Loan Parties under the
Loan Documents or otherwise in such order and such manner as
the Agents may determine, regardless of whether the Loan
Parties shall have proceeded against or exhausted any
collateral, right, remedy, power or privilege before proceeding
to call upon or otherwise enforce this Agreement;
35
(viii) the entering into such other transactions or
business dealings with any Obligor or any Subsidiary or
Affiliate of any Obligor as any Loan Party may determine; or
(ix) all or any combination of any of the actions set
forth in this Section 7.02(a).
(b) The enforceability and effectiveness of this Agreement and
the liability of the Guarantors, and the rights, remedies, powers
and privileges of the Loan Parties, under this Agreement shall not
be affected, limited, reduced, discharged or terminated, and each
Guarantor hereby expressly waives, to the fullest extent permitted
by applicable law, any defense now or in the future arising, by
reason of:
(i) any illegality, invalidity or unenforceability of all
or any part of the Guaranteed Obligations, any Loan Document or
any other agreement or instrument whatsoever relating to all or
any part of the Guaranteed Obligations;
(ii) any disability or other defense with respect to all
or any part of the Guaranteed Obligations, including the effect
of any statute of limitations that may bar the enforcement of
all or any part of the Guaranteed Obligations or the
obligations of any such other guarantor;
(iii) the illegality, invalidity or unenforceability of
any security for or other guarantee (including without
limitation any letter of credit) of all or any part of the
Guaranteed Obligations or the lack of perfection or continuing
perfection or failure of the priority of any Lien on any
collateral for all or any part of the Guaranteed Obligations;
(iv) the cessation, for any cause whatsoever, of the
liability of any Obligor with respect to all or any part of the
Guaranteed Obligations (other than, subject to Section 7.03
hereof, by reason of the full payment of all Guaranteed
Obligations);
(v) any failure of any Loan Party to marshal assets in
favor of the Borrowers or any other Person (including any other
guarantor of all or any part of the Guaranteed Obligations), to
exhaust any collateral for all or any part of the Guaranteed
Obligations, to pursue or exhaust any right, remedy, power or
privilege it may have against the Borrowers or any other
guarantor of all or any part of the Guaranteed Obligations
(including any issuer of any letter of credit) or any other
Person or to take any action whatsoever to mitigate or reduce
such or any other Person's liability under this Agreement, the
Loan Parties being under no obligation to take any such action
notwithstanding the fact that all or any part of the Guaranteed
Obligations may be due and payable and that the Borrowers may
be in default of its obligations under any Loan Document;
36
(vi) any counterclaim, set-off or other claim which any
Obligor of all or any part of the Guaranteed Obligations has or
claims with respect to all or any part of the Guaranteed
Obligations;
(vii) any failure of any Loan Party or any other Person to
file or enforce a claim in any bankruptcy or other proceeding
with respect to any Person;
(viii) any bankruptcy, insolvency, reorganization,
concurso mercantil, winding-up or adjustment of debts, or
appointment of a custodian, interventor, conciliador, sindico,
liquidator or the like of it, or similar proceedings commenced
by or against any Obligor, including any discharge of, or bar
or stay against collecting, all or any part of the Guaranteed
Obligations (or any interest on all or any part of the
Guaranteed Obligations) in or as a result of any such
proceeding;
(ix) any action taken by any Loan Party that is authorized
by this Section 7.02 or otherwise in this Agreement or by any
other provision of any Loan Document or any omission to take
any such action; or
(x) to the fullest extent permitted by applicable law, any
other circumstance whatsoever that might otherwise constitute a
legal or equitable discharge or defense of a surety or
guarantor.
(c) To the fullest extent permitted by law, each Guarantor
expressly waives, for the benefit of the Loan Parties, all set-offs
and counterclaims and all diligence, presentment, demand for payment
or performance, notices of nonpayment or nonperformance, protest,
notices of protest, notices of dishonor and all other notices or
demands of any kind or nature whatsoever (other than the written
demand for payment pursuant to Section 7.01 hereof), and any
requirement that any Loan Party exhaust any right, power or remedy
or proceed against the Borrowers under this Agreement, any Note or
any other Loan Document or other agreement or instrument referred to
herein or therein, or against any other Person under any other
guarantee of, or security for, any of the Guaranteed Obligations,
and all notices of acceptance of this Agreement or of the existence,
creation, incurring or assumption of new or additional Guaranteed
Obligations. Each Guarantor further expressly waives the benefit of
any and all statutes of limitation, to the fullest extent permitted
by applicable law.
(d) Each Guarantor further waives, to the fullest extent
permitted by applicable law, any right to which it may be entitled,
including, without limitation:
(i) that the assets of the Borrowers first be used,
depleted and/or applied in satisfaction of the Borrowers'
obligations under this Agreement prior to any amounts being
claimed from or paid by any Guarantor;
37
(ii) to require that the Borrowers be sued and all claims
against the Borrowers be completed prior to an action or
proceeding being initiated against such Guarantor;
(iii) to have its obligations hereunder be divided among
the Guarantors, such that each Guarantor's obligation would be
less than the full amount claimed; and
(iv) to the extent applicable, under Articles 2814, 2815,
2816, 2817, 2818, 2819, 2820, 2821, 2822, 2823, 2842, 2845 and
2846 of the Mexican Federal Civil Code and the correlative
rights of the Civil Codes of the Federal District and the
States of Mexico.
7.03 Reinstatement. The obligations of each Guarantor under this
Section 7 shall be automatically reinstated if and to the extent that for any
reason any payment by or on behalf of the Borrowers in respect of the
Guaranteed Obligations is rescinded or must otherwise be restored by any
holder of any of the Guaranteed Obligations, whether as a result of any
proceedings in bankruptcy or reorganization or otherwise, and the Guarantors
jointly and severally agree that they will indemnify the Loan Parties on
demand for all reasonable costs and expenses (including, without limitation,
reasonable fees of counsel, but without duplication of the obligations of the
Borrowers under this Agreement) incurred by them in connection with such
rescission or restoration, including any such costs and expenses incurred in
defending against any claim alleging that such payment constituted a
preference, fraudulent transfer or the like under any bankruptcy, insolvency
or similar law.
7.04 Subrogation. The Guarantors hereby jointly and severally agree
that, until the final payment in full of the Guaranteed Obligations and the
expiration or termination of the Commitments under this Agreement, they shall
not exercise any right or remedy arising by reason of any performance by any
of them of their guarantee in Section 7.01 hereof, whether by subrogation,
reimbursement, contribution or otherwise, against the Borrowers or any other
guarantor of any of the Guaranteed Obligations or any security for any of the
Guaranteed Obligations.
7.05 Remedies. Each Guarantor agrees that, as between such Guarantor
and the Loan Parties, the obligations of the Borrowers under this Agreement,
the Notes or any other Loan Documents may be declared to be forthwith due and
payable as provided in Section 11 hereof (and shall be deemed to have become
automatically due and payable in the circumstances provided in said Section
11) for purposes of Section 7.01 hereof, notwithstanding any stay, injunction
or other prohibition preventing such declaration (or such obligations from
becoming automatically due and payable) as against the Borrowers and that, in
the event of such declaration (or such obligations being deemed to have become
automatically due and payable), such obligations (whether or not due and
payable by the Borrowers) shall forthwith become due and payable by such
Guarantor for purposes of said Section 7.01.
7.06 Payments. Except to the extent otherwise expressly provided in
Section 7.10 hereof, all payments by the Guarantors under this Agreement shall
be made in Dollars,
38
without deduction, set-off or counterclaim at the place specified in Section 4
hereof and free and clear of any and all present and future Covered Taxes,
without prejudice to the provisions of Section 5.05 hereof.
7.07 Rights of Contribution. The Guarantors hereby agree, as among
themselves, that if any Guarantor shall become an Excess Funding Guarantor (as
defined below) by reason of the payment by such Guarantor of any of the
Guaranteed Obligations, each other Guarantor shall, on written demand of such
Excess Funding Guarantor (but subject to the next sentence), pay to such
Excess Funding Guarantor an amount equal to such Guarantor's Pro Rata Share
(as defined below and determined, for this purpose, without reference to the
Properties, debts and liabilities of such Excess Funding Guarantor) of said
payment of the Guaranteed Obligations.
For purposes of this Section 7.07, (i) "Excess Funding Guarantor"
shall mean, in respect of any Guaranteed Obligations, a Guarantor that has
paid an amount in excess of its Pro Rata Share of such Guaranteed Obligations,
(ii) "Excess Payment" shall mean, in respect of any Guaranteed Obligations,
the amount paid by an Excess Funding Guarantor in excess of its Pro Rata Share
of such Guaranteed Obligations and (iii) "Pro Rata Share" shall mean, for any
Guarantor, the ratio (expressed as a percentage) of (x) the amount by which
the aggregate fair saleable value of all Properties of such Guarantor
(excluding any shares of stock of any other Guarantor) exceeds the amount of
all the debts and liabilities of such Guarantor (including contingent,
subordinated, unmatured and unliquidated liabilities, but excluding the
obligations of such Guarantor hereunder and any obligations of any other
Guarantor that have been Guaranteed by such Guarantor) to (y) the amount by
which the aggregate fair saleable value of all Properties of the Guarantors
exceeds the amount of all debts and liabilities (including contingent,
subordinated, unmatured and unliquidated liabilities, but excluding the
obligations of the Borrowers and the Guarantors hereunder) of all of the
Guarantors, determined as of the date hereof.
7.08 General Limitation on Guarantee Obligations. To the extent that
the obligations of any Guarantor hereunder would, by reason of any applicable
domestic or foreign law, rule or regulation (including any domestic or foreign
corporate law, or any domestic or foreign bankruptcy, insolvency,
reorganization or other law affecting the rights of creditors generally) 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
hereunder, then, notwithstanding any other provision hereof to the contrary,
the amount of such liability shall, without any further action by such
Guarantor, any Lender, either 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.
7.09 Limitation on Guarantee Obligations of Swiss Guarantors.
Anything herein to the contrary notwithstanding, the aggregate amount payable
by each Swiss Guarantor hereunder at any time (including, but not limited to,
payments pursuant to Section 7.01 and Section 7.07 hereof) shall be limited
for each such Swiss Guarantor to an amount equal to the maximum amount of the
freely distributable retained earnings of such Swiss Guarantor under the law
of Switzerland as of such time.
39
7.10 Colombian Guarantor. Anything herein to the contrary
notwithstanding, the Colombian Guarantor may make payment of any amount
demanded from it hereunder in the lawful currency of the Republic of Colombia;
provided, that the Colombian Guarantor shall use its best efforts to obtain
any and all such licenses, consents and approvals of any Colombian
Governmental Authority as may be required to enable it to make payment of all
such amounts in Dollars, and, if successful in such efforts, will promptly
furnish evidence thereof to the Administrative Agent, in form and substance
satisfactory to the Administrative Agent, and thereafter shall make all such
payments in Dollars in accordance with Section 7.06 hereof.
SECTION 8. REPRESENTATIONS AND WARRANTIES. Except as otherwise
specified herein, each Obligor represents and warrants to the Loan Parties
with respect to itself (except as otherwise provided herein) that, as of the
date hereof and as of the date of the Borrowing (unless otherwise specified):
8.01 Power and Authority. It (a) is a corporation, a sociedad
anonima de capital variable or a sociedad anonima, as applicable, duly
organized and validly existing under the laws of its jurisdiction of
incorporation, (b) has all requisite corporate power, and has all material
governmental licenses, authorizations, consents and approvals necessary to own
its assets and carry on its business as now being conducted, (c) is qualified
to do business and is in good standing in all jurisdictions in which the
nature of the business conducted by it makes such qualification necessary and
where failure so to qualify could (either individually or in the aggregate)
reasonably be expected to have a Material Adverse Effect, (d) has the power
and authority to make and perform each of the Loan Documents to which it is a
party and to borrow the Loans hereunder and (e) is in compliance with all
applicable laws and regulations except where failure to be in compliance could
not reasonably be expected to have a Material Adverse Effect.
8.02 Due Authorization, Etc. The making and performance by such
Obligor of the Loan Documents to which it is a party and of all other
documents and instruments to be executed and delivered by it hereunder have
been duly authorized by all necessary corporate action, and do not contravene
(a) its estatutos sociales or, if applicable, other constitutive documents,
(b) any Requirement of Law, or (c) any agreement or instrument or material
contractual restriction binding on or affecting it or any of its Property, and
do not and will not result in the imposition of any Lien on any of its
Property, except Liens created or arising under the Loan Documents. No part of
the proceeds of the Loans will be used for the purpose, whether immediate,
incidental or ultimate, of buying or carrying any "margin stock" within the
meaning of Regulation U of the Board of Governors of the Federal Reserve
System (and no Indebtedness refinanced with the proceeds of the Loans will
have been used for such purpose).
8.03 Governmental and Other Approvals. Subject to Section 7.10
hereof, no license, consent, authorization or approval or other action by, or
notice to or filing or registration with, any Governmental Authority
(including without limitation any foreign exchange approval), and no other
third-party consent or approval, is necessary for the due execution, delivery
and performance by such Obligor of the Loan Documents or for the legality,
validity, binding effect or enforceability thereof against it. In the case of
VVP Syndication, no filing, registration or
40
other action is required to be accomplished in Mexico, under the laws of
Mexico, in order to cause the security interest created under Section 12
hereof in the Deposit Collateral to be a valid first and prior perfected
security interest therein.
8.04 Legal Effect. Each of this Agreement and each other Loan
Document to which it is a party has been duly executed and delivered by such
Obligor, this Agreement and each other Loan Document (other than the Notes)
constitutes and each Note when duly executed and delivered by such Obligor for
value received, and, in the case of a Guarantor, endorsed "por aval" by such
Guarantor, will constitute the legal, valid and binding obligation of such
Obligor, enforceable against it in accordance with its terms.
8.05 Financial Statements. The audited (or, in the case of each U.S.
Guarantor, unaudited) consolidated balance sheet of such Obligor and its
consolidated Subsidiaries as of December 31, 2001 (or, in the case of each
Swiss Guarantor, December 31, 2002) and the related audited (or, in the case
of each U.S. Guarantor, unaudited) consolidated statements of income and cash
flows for the fiscal year ending on that date, with the opinion thereon (i) in
the case of the Mexican Obligors, the Mexican office of Deloitte & Touche or
other independent public accountants of recognized international standing and
(ii) in the case of each other Obligor (other than the U.S. Guarantors),
independent public accountants of recognized international standing, and the
unaudited consolidated balance sheet of such Obligor and its consolidated
Subsidiaries as of September 30, 2002 and the related unaudited consolidated
statements of income and cash flows for the nine-month period then ended,
certified by the chief financial officer of Vitro Plan, each of which has
heretofore been furnished to the Lenders, are complete and correct and fairly
present the consolidated financial condition of such Obligor and its
consolidated Subsidiaries as at said respective dates and the consolidated
results of their respective operations for the fiscal year and nine-month
period ending on said dates, all in accordance with GAAP, and such Obligor and
its Subsidiaries do not have material contingent liabilities or unusual
forward or long-term commitments not disclosed therein. Since December 31,
2001, no event or circumstance has occurred that has had a Material Adverse
Effect.
8.06 Ranking. The payment obligations of such Obligor hereunder are
and will at all times be unconditional and unsubordinated general obligations
of such Obligor and rank and will at all times rank at least pari passu with
all other present and future unsecured Indebtedness of each Borrower and each
Guarantor.
8.07 No Actions or Proceedings. There is no litigation,
investigation or proceeding pending or, to the best of its knowledge,
threatened against such Obligor or any of its Subsidiaries by or before any
Governmental Authority that (either individually or in the aggregate) could
reasonably be expected to have a Material Adverse Effect. The operations of
such Obligor and those of its Subsidiaries comply with all applicable laws,
rules, regulations and orders (including without limitation all Environmental
Laws) of Governmental Authorities, except to the extent the failure to so
comply (either individually or in the aggregate) could not reasonably be
expected to have a Material Adverse Effect.
8.08 Commercial Activity; Absence of Immunity. It is subject to
civil and commercial law with respect to its obligations under the Loan
Documents, and the making and
41
performance by it of the Loan Documents constitute private and commercial acts
rather than public or governmental acts. It is not entitled to any immunity on
the ground of sovereignty or the like from the jurisdiction of any court or
from any action, suit, set-off or proceeding, or the service of process in
connection therewith, arising under the Loan Documents.
8.09 Taxes. There is no income, stamp or other similar tax, levy,
assessment, impost, deduction, charge or withholding imposed by Mexico (or any
municipality or other political subdivision or taxing authority thereof or
therein that exercises power to impose such tax, levy, assessment, impost,
deduction, charge or withholding) either (a) on or by virtue of the execution
or delivery by any Mexican Obligor of the Loan Documents or (b) on any payment
to be made by any Mexican Obligor pursuant to the Loan Documents, other than
any such tax, levy, assessment, impost, deduction, charge or withholding
imposed on any Person as a result of such Person being organized under the
laws of Mexico or by virtue of its having a permanent establishment in Mexico
to which income under the Loan Documents is attributable or its Applicable
Lending Office being located in Mexico, except for withholding tax on payments
of interest and fees deemed to be interest to Lenders that are not Mexican
Banks. It has filed all material tax returns required to be filed and paid all
taxes shown to be due thereon except such as are being contested in good faith
by appropriate proceedings and for which adequate reserves have been made if
required in accordance with GAAP.
8.10 Legal Form. This Agreement and the other Loan Documents to
which it is a party are in proper legal form under the laws of its
jurisdiction of incorporation for the enforcement thereof against it under
such law. All formalities required in its jurisdiction of incorporation for
the validity and enforceability of each of the Loan Documents have been
satisfied, and no Covered Taxes are required to be paid and no notarization is
required, for the validity and enforceability thereof; provided, that in the
event any legal proceedings are brought in the courts of Mexico, a Spanish
translation of the documents required in such proceedings needs to be prepared
by a court-approved translator and would have to be approved by such court
after the defendant had been given an opportunity to be heard with respect to
the accuracy of the translation, and proceedings would thereafter be based
upon the translated documents.
8.11 Full Disclosure. The information, reports, financial
statements, exhibits and schedules contained in the Information Memorandum,
taken as a whole, do not contain any untrue statement of material fact,
provided, that no such representation and warranty is made as to any
projections or forward-looking information contained therein except that such
projections or forward-looking information have been prepared in good faith on
assumptions believed to be reasonable at the time of preparation thereof. All
other written information furnished after the date hereof by such Obligor to
the Administrative Agent and the Lenders in connection with this Agreement and
the transactions contemplated hereby will be true, complete and accurate in
every material respect, or (in the case of projections, if applicable) based
on reasonable estimates, on the date as of which such information is stated or
certified.
8.12 Liens. Schedule 4 hereto is a complete and correct list of each
Lien granted by it in connection with any Indebtedness as of the date hereof.
42
8.13 Solvency. It is, and after giving effect to the making of the
Loans and the use of proceeds thereof (including without limitation the
incurrence of the Guaranteed Obligations) will be, Solvent.
8.14 Restrictions on Upstreaming. Other than the Existing
Restrictions, none of its Subsidiaries is subject on the date hereof to any
contractual restriction on its ability to make any Dividend Payment.
8.15 Not an Investment Company. It is not required to register as an
"investment company" under the Investment Company Act of 1940, as amended.
8.16 Material Agreements. Schedule 5 hereto is a complete and
correct list of (a) each credit agreement, loan agreement or indenture and (b)
each purchase agreement, guarantee, letter of credit or other arrangement
providing for or otherwise relating to any Indebtedness or any extension of
credit to, or Guarantee by, such Obligor outstanding on the date hereof (and,
in the case of sub-section (b), with an outstanding amount in excess of
$10,000,000), the aggregate principal or face amount outstanding or that may
become outstanding under each such arrangement is correctly described in said
Schedule 5.
8.17 Properties. (a) It has good title to, or valid leasehold
interests in, all its real and personal property material to its business,
except for (i) easements, zoning restrictions, rights-of-way and similar
encumbrances imposed by law or arising in the ordinary course of business that
do not secure any monetary obligations and do not materially detract from the
value of the affected property or interfere with the ordinary conduct of its
business and (ii) minor defects in title that do not interfere with its
ability to conduct its business as currently conducted or to utilize such
properties for their intended purposes.
(b) It owns, or is licensed to use, all trademarks, trade names,
copyrights, patents and other intellectual property material to its business,
and its use thereof does not infringe upon the rights of any other Person,
except for any such infringements that, individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect.
SECTION 9. COVENANTS OF THE BORROWERS. Except as otherwise specified
herein, each Borrower covenants and agrees with the Loan Parties that, so long
as any Commitment or Loan is outstanding and until payment in full of all
amounts payable by such Borrower hereunder and under the other Loan Documents:
9.01 Corporate Existence, Etc. It will, and will cause each of its
Subsidiaries to, (a) preserve and maintain its corporate existence and all of
its material rights and licenses, (b) maintain in all material respects
appropriate accounting and corporate books and records, and (c) permit
representatives of any Loan Party, during normal business hours, at its own
cost and expense (provided, that if an Event of Default has occurred and is
continuing such Borrower shall indemnify each Loan Party for such reasonable
and documented costs and expenses), and following reasonable prior notice, to
examine, copy and make extracts from its corporate books and records, to
inspect any of its Property, and to discuss its business and affairs with its
43
officers, to the extent reasonably requested by any Loan Party subject to any
legally binding confidentiality requirements applicable to it; provided, that
nothing in this Section 9.01 shall prohibit any merger, consolidation,
liquidation, winding up or dissolution permitted under Section 9.08 or any
Asset Sale permitted under Section 9.13.
9.02 Compliance with Law. It will, and will cause each of its
Subsidiaries to, (a) comply with the requirements of all applicable laws,
rules, regulations and orders (including without limitation all Environmental
Laws) of Governmental Authorities (including without limitation IMSS,
INFONAVIT and SAR) except to the extent non-compliance would not result in a
Material Adverse Effect, (b) timely file all required material tax returns and
pay and discharge at or before maturity all of its material obligations
(including without limitation tax liabilities, except where the same are
contested in good faith and by appropriate proceedings and against which
adequate reserves are being maintained if and to the extent required by GAAP
and where the failure to pay or discharge such obligations or liabilities
would not result in a Material Adverse Effect), (c) maintain all of its
material Property used or useful in its business in good working order and
condition, ordinary wear and tear excepted, and (d) maintain insurance in
respect of the Property and businesses of such Borrower and its Subsidiaries
against loss and damage of the kinds and in the amounts customary in the
industry in which such Borrower or such Subsidiary operates.
9.03 Governmental Authorizations. It will, and will cause each of
its Subsidiaries, as applicable, to promptly from time to time obtain and
maintain in full force and effect all licenses, consents, authorizations and
approvals of, and make all filings and registrations with, any Governmental
Authority necessary under the laws of Mexico (or, if not Mexico, its
jurisdiction of incorporation) for the making and performance by it of the
Loan Documents.
9.04 Financial Statements, Etc. It will provide or cause to be
provided to the Administrative Agent for distribution to the Lenders:
(a) as soon as available and in any event within 120 days after the
end of each fiscal year, enough copies for each Lender of the audited
consolidated balance sheet of Obligor and its consolidated Subsidiaries
as at the end of such fiscal year and the related audited consolidated
statements of income and cash flows of such Obligor and its consolidated
Subsidiaries for such fiscal year, setting forth in each case in
comparative form the figures for the previous fiscal year, all reported
on in conformity with GAAP, with the unqualified opinion thereon of (i)
in the case of the Mexican Obligors, the Mexican office of Deloitte &
Touche or other independent public accountants of recognized
international standing and (ii) in the case of each other Obligor,
independent public accountants of recognized international standing;
(b) as soon as available and in any event within 60 days after the
end of each quarter of each fiscal year, enough copies for each Lender of
the unaudited consolidated balance sheet of each Obligor and its
consolidated Subsidiaries as at the end of each such fiscal quarter and
the related unaudited consolidated statements of income and cash flow of
such Obligor and its consolidated Subsidiaries for such quarter and for
the period from
44
the beginning of the then current fiscal year to the end of such quarter,
setting forth in each case in comparative form the figures for the
corresponding quarter in the previous fiscal year, all certified as to
fairness of presentation and conformity with GAAP by the Responsible
Officer of such Borrower;
(c) simultaneously with the delivery of each set of financial
statements referred to in clause (b) above, and at any other time
reasonably requested by the Administrative Agent, a certificate of a
Responsible Officer, in the form of Exhibit L, (i) stating whether any
Default exists on the date of such certificate and, if a Default then
exists, setting forth the details thereof and the action which such
Borrower is taking or proposes to take with respect thereto and (ii) in
the case of Vitro Plan, setting forth in reasonable detail the
calculations required to establish whether Vitro Plan was in compliance
with the requirements of Sections 10.01(a), (b) and (c) hereof on and as
of the date of such financial statements;
(d) promptly upon an officer of such Borrower obtaining knowledge of
the occurrence of any Default, a certificate of the Responsible Officer
of such Borrower setting forth the details thereof and the action which
such Borrower is taking or proposes to take with respect thereto;
(e) promptly upon the commencement of, or any material adverse
development in, any litigation or proceeding against such Borrower or any
of its Subsidiaries that could reasonably be expected to have a Material
Adverse Effect, notice thereof with a description thereof in reasonable
detail; and
(f) from time to time such additional information regarding the
financial position or business of such Borrower and its Subsidiaries as
the Administrative Agent, at the request of any Lender, may reasonably
request or as has been provided to the Tranche C Agent.
9.05 Ranking. It will, and will cause each of its Subsidiaries that
is an Obligor, to, promptly take all such actions as may be necessary to
ensure that its payment obligations under this Agreement and the Notes will at
all times constitute unconditional and unsubordinated general obligations of
it ranking at least pari passu with all other present and future unsecured and
unsubordinated Indebtedness of it.
9.06 Transactions With Affiliates. Without prejudice to anything
expressly permitted under this Agreement, it will not, nor will it permit any
of its Subsidiaries to, directly or indirectly enter into any transaction with
an Affiliate thereof, except (a) in the ordinary course of and pursuant to the
reasonable requirements of its business and upon commercially reasonable terms
that are no less favorable to it than those which would be obtainable in a
comparable arm's-length transaction at the time from a Person which is not
such an Affiliate, (b) transactions between or among the Obligors and (c)
Dividend Payments permitted by Section 9.16 hereof.
45
9.07 Line of Business. It will not make any material change in the
line of business of such Borrower and its Subsidiaries as conducted on the
date hereof, and it will not change the legal nature of its organization.
9.08 Merger, Etc It will not, nor will it permit any of its
Subsidiaries to, enter into any transaction of merger or consolidation, or
liquidate, wind up or dissolve itself (or suffer any liquidation or
dissolution), or sell, transfer or otherwise dispose of (in one transaction or
in a series of transactions) all or substantially all of its Property (except
for sales of inventory in the ordinary course of business for fair market
value), provided, that (a) any Borrower may merge or consolidate with or into
any other Person if, immediately after giving effect thereto, (i) it is the
surviving Person and (ii) no Default has occurred and is continuing, (b) any
Guarantor may merge or consolidate with or into any other Guarantor, (c) any
Subsidiary of a Borrower that is not an Obligor may merge or consolidate with
or into any other Person if, immediately after giving effect thereto, no
Default has occurred and is continuing, (d) any Subsidiary that is not an
Obligor may liquidate or dissolve if the Borrowers determine in good faith
that such liquidation or dissolution is in the best interest of the Borrowers
and is not materially disadvantageous to the Lenders and (e) any Guarantor or
Subsidiary may be spun off to any Obligor.
9.09 Upstreaming. It will not permit any of its Subsidiaries to
enter into, create or assume any contractual restriction on the ability of
such Subsidiary to make any Dividend Payment, provided, that this Section 9.09
shall not be deemed to prohibit (a) customary restrictions contained in the
joint venture agreements with respect to any Joint Venture Subsidiary or (b)
the extension, continuation or replacement on substantially similar terms of
any such contractual restrictions existing on the date hereof.
9.10 Hedge Agreements. It will not, nor will it permit any of its
Subsidiaries to, enter into any Hedge Agreement, other than Hedge Agreements
entered into (i) in the ordinary course of business to hedge or mitigate risks
to which it or any of its Subsidiaries is exposed in the conduct of its
business or the management of its liabilities and (ii) not for speculative
purposes.
9.11 Negative Pledge. It will not, nor will it permit any of its
Subsidiaries to, create, assume or suffer to exist any Lien on its Property,
whether now owned or hereafter acquired by it, except (in the case of VVP
Syndication) the Lien created under Section 12 hereof and:
(a) Permitted Liens;
(b) Liens (not covering any of the Deposit Collateral) existing on
the date hereof and described in Schedule 4 hereto;
(c) Liens on any Property of such Borrower or any of its
Subsidiaries securing Indebtedness of such Borrower or any of its
Subsidiaries incurred or assumed for the purpose of financing (i) all or
any part of the acquisition of raw materials, utilities and other
Property (including working capital loans ("creditos de habilitacion" or
"avio")) or (ii) all or part of the acquisition, construction or
improvement of fixed assets and other
46
Property (including capital expenditure loans ("creditos
refaccionarios")), provided, that such Lien attaches to such Property
concurrently with or within 90 days after the acquisition, construction
or improvement thereof;
(d) Any Lien on any Property existing at the time of acquisition
thereof and which is not created as a result of or in connection with or
in anticipation of such acquisition;
(e) Any Lien existing on any Property of a corporation which is
merged with or into an Obligor which is not created as a result of or in
connection with or in anticipation of such merger;
(f) Any Lien on a cash reserve account (however denominated)
securing Indebtedness for borrowed money otherwise permitted hereby,
provided, that the funds in such account are derived solely from the
proceeds of such borrowing;
(g) Liens on accounts receivable arising from factoring arrangements
with respect to such accounts receivable as permitted by Section 9.13
hereof; and
(h) Liens (not covering any shares of capital stock of such Person)
not otherwise permitted by the foregoing clauses, securing Indebtedness
outstanding at any time in an aggregate principal amount not exceeding
$35,000,000.
9.12 Fiscal Year. It will not, nor will it permit any of its
Subsidiaries to, change its fiscal year from a calendar year ending December
31.
9.13 Asset Sales; Investments in Non-Guaranteeing Subsidiaries. (a)
Without prejudice to the limitation in clause (b) below, it will not, and will
not permit any of its Subsidiaries to, directly or indirectly, make Asset
Sales after the date hereof of Property having an aggregate fair market value
in excess of $150,000,000 (as to all Borrowers and their Subsidiaries),
provided, that the net cash proceeds of Asset Sales permitted under this
clause shall be applied to reduce Indebtedness of the Obligors; and provided
further, that this clause shall not apply to:
(i) Asset Sales of inventory for fair value in the ordinary
course of business;
(ii) any Asset Sale by an Obligor to another Obligor;
(iii) the factoring of accounts receivable pursuant to existing
or future programs limited in aggregate principal amount at any time
to not more than $75,000,000 or the equivalent in other currencies;
(iv) dispositions of Property no longer used or, in its
reasonable opinion, useful in the business of such Borrower or its
Subsidiaries, provided that the net proceeds of any such disposition
shall be reinvested in the business of such
47
Borrower or the relevant Subsidiary or used to repay Indebtedness
thereof within 30 days of said disposition; or
(v) any Sale-Leaseback Transactions to the extent that a Lien
securing the amount of the obligations under such Sale-Leaseback
Transactions could be incurred under Section 9.11(h).
(b) It will not, and will not permit its Subsidiaries to, make
Investments after the date hereof in Non-Guaranteeing Subsidiaries in an
aggregate amount exceeding $50,000,000 (as to all Borrowers and their
Subsidiaries).
9.14 Use of Proceeds. It will use the proceeds of the Loans solely
(i) to refinance Indebtedness of the Obligors (for such purpose, Vitro Plan
will lend a portion of the proceeds to several of the Obligors), (ii) in the
case of VVP Syndication, to fund the Cash Reserve Account in accordance with
Section 12.01(a) hereof and (iii) to pay fees and expenses relating to the
transactions contemplated hereby, provided that no Loan Party shall be
responsible as to the use of any of such proceeds.
9.15 Communications Agreement. It will comply and cause the
Guarantors to comply with the terms of the Communications Agreement.
9.16 Dividend Payments. It will not declare or make any Dividend
Payment if, at the time thereof and after giving effect thereto, a Default has
occurred and is continuing.
9.17 Financial Statements of U.S. Guarantors. VVP Holdings will
provide to the Administrative Agent within (i) 60 days after the Closing Date
in the case of Vitro America and (ii) within 90 days after the Closing Date in
the case of each other U.S. Guarantor, enough copies of the audited balance
sheets of Vitro America or such other U.S. Guarantor as at December 31, 2002
and December 31, 2001 and the related audited statements of income and cash
flows of Vitro America or such other U.S. Guarantor for each of the fiscal
years ending on such dates, all reported in conformity with GAAP, with the
unqualified opinion thereon of independent accountants of recognized
international standing.
SECTION 10. FINANCIAL COVENANTS OF VITRO PLAN; SPECIAL COVENANTS OF
VVP SYNDICATION.
10.01 Covenants of Vitro Plan. Vitro Plan covenants and agrees with
the Loan Parties that, so long as any Commitment or Loan is outstanding and
until payment in full of all amounts payable by any Borrower hereunder and
under the other Loan Documents:
(a) Consolidated Net Worth. It will not permit its Consolidated Net
Worth at any time to be less than 80% of its Consolidated Net Worth as at
December 31, 2001 (calculated in constant Pesos).
48
(b) Interest Coverage Ratio. It will not permit the Interest
Coverage Ratio to be at any time less than 3.00 to 1.00.
(c) Debt to EBITDA Ratio. It will not permit the Debt to EBITDA
Ratio to be at any time greater than 2.75 to 1.00.
(d) Certain Obligations Respecting Subsidiaries. In the event that
it shall form or acquire any new Subsidiary, it will promptly cause such
new Subsidiary to become a "Guarantor" hereunder, and to deliver such
proof of corporate action, incumbency of officers, opinions of counsel
and other documents as is consistent with those delivered by each
"Guarantor" pursuant to Section 6.01 hereof upon the Closing Date or as
the Administrative Agent shall have requested; provided, that the
obligation in this clause (d) shall not apply with respect to any
Non-Guaranteeing Subsidiary.
(e) Ownership. It will continue to own, beneficially and of record,
directly or indirectly, 100% of the Voting Shares of each Guarantor
(other than directors' qualifying shares or the equivalent).
10.02 Covenants of VVP Syndication. VVP Syndication covenants and
agrees with the Loan Parties that, so long as any Commitment or Loan is
outstanding and until payment in full of all amounts payable by any Borrower
hereunder and under the other Loan Documents:
(a) Deposit Collateral. It will execute, deliver, file and/or record
any financing statement, notice, instrument, document or agreement that
may be necessary or desirable and that either Agent may reasonably
request, to create, preserve, perfect or validate the security interest
granted pursuant to Section 12 hereof or to enable the Collateral Agent
to exercise and enforce its rights hereunder with respect to such pledge
and security interest.
(b) Maintenance of Cash Reserve Account. It will at all times
maintain ownership, free and clear of any Lien, of the Cash Reserve
Account, except for the Liens created hereby.
(c) Certain Additional Activities. Without limiting the other
provisions of this Agreement, it will comply with the special-purpose
covenants set forth in Schedule 6 hereto.
(d) Further Assurances. It will, from time to time upon the written
request of the Collateral Agent, execute and deliver such further
documents and do such other acts and things as the Collateral Agent may
reasonably request in order fully to effect the purposes of Section 12
hereof.
(e) Visitation. It shall permit representatives of the Collateral
Agent, following notice given within a reasonable number of days prior to
such inspection, at any time during normal business hours to inspect and
make abstracts from its books and records pertaining to the Deposit
Collateral, and permit representatives of the Collateral Agent to be
present at its place of business to receive copies of all communications
and
49
remittances relating to the Deposit Collateral, and forward copies of any
notices or communications received by it with respect to the Deposit
Collateral, all in such manner as the Collateral Agent may reasonably
request, at the expense of the Collateral Agent (unless and until a
Default has occurred or is continuing), provided, that such inspection
and other actions shall not interfere with or otherwise interrupt its
operations.
(f) Other Financing Statements and Liens. It shall not create or
permit to exist any Lien on any of the Deposit Collateral except
hereunder, or file or suffer to be on file, or authorize or permit to be
filed or to be on file, in any jurisdiction, any financing statement or
like instrument with respect to the Deposit Collateral in which the
Collateral Agent is not named as the sole secured party.
SECTION 11. EVENTS OF DEFAULT. If one or more of the following
events (herein called "Events of Default") shall occur and be continuing:
(a) The Borrowers shall fail to pay when due any principal of any
Loan or to prepay any Loan when required hereunder, or shall fail to pay
within three Business Days after the due date thereof any interest on any
Loan, any commitment fees or any other amount payable hereunder or under
any Note or any other amount payable under any Loan Document; or
(b) Any representation, warranty or certification made or deemed
made by any Obligor herein or in any other Loan Document (or in any
modification or supplement hereto or thereto), or any certificate
furnished to any Loan Party pursuant to the provisions hereof, shall
prove to have been false or misleading in any material respect as of the
time made or furnished; or
(c) Any Obligor or any of its Subsidiaries shall default in the
payment of any principal of or interest on any other Indebtedness
(whether at stated maturity or at mandatory or optional prepayment or
otherwise) if such Indebtedness has an aggregate outstanding principal
amount of $10,000,000 (or its equivalent in other currencies) or more
("Material Debt"), or any default or event of default shall occur under
any agreement or instrument evidencing or relating to such Material Debt
if the effect thereof is to accelerate the maturity thereof, or to permit
or enable the holder or holders of such Material Debt, or an agent or
trustee acting on its or their behalf, to accelerate the maturity
thereof, or to require the mandatory prepayment or redemption thereof; or
(d) Any Obligor shall (i) default in the observance or performance
of any of its obligations under Sections 9.01(a) (with respect to the
preservation and maintenance of the corporate existence of such Obligor),
9.03, 9.04, 9.05, 9.07, 9.08, 9.11, 9.13, 9.14, 9.16 or 9.17 or Section
10 hereof; or (ii) any Obligor shall fail to perform or observe any of
its other obligations under this Agreement (other than as referred to in
clause (a) above or in sub-clause (i) of this clause (d)) and such
failure shall remain unremedied for 30 days after written notice thereof
shall have been given to the Borrowers by the Administrative Agent or any
Lender; or
50
(e) Any Obligor or any of its Material Subsidiaries shall admit in
writing its inability to, or be generally unable to, pay its debts as
such debts become due; or
(f) Any Obligor or any of its Material Subsidiaries shall (i) apply
for or consent to the appointment of, or the taking of possession by, a
receiver, custodian, liquidador, conciliador, sindico, trustee, examiner
or liquidator of itself or of all or a substantial part of its Property,
(ii) make a general assignment for the benefit of its creditors, (iii)
file a petition seeking to take advantage of any other law relating to
bankruptcy, concurso mercantil, insolvency, reorganization, liquidation,
dissolution, arrangement or winding-up, or composition or readjustment of
debts or (iv) take any corporate action for the purpose of effecting any
of the foregoing; or
(g) A proceeding or case shall be commenced against any Obligor or
any of its Material Subsidiaries, without its application or consent,
seeking (i) its reorganization, liquidation, dissolution, arrangement or
winding up, (ii) the appointment of a receiver, custodian, liquidador,
conciliador, sindico, trustee, examiner, liquidator or the like of it or
of all or any substantial part of its Property or (iii) similar relief in
respect of it under any law relating to bankruptcy, concurso mercantil,
insolvency, reorganization, winding up, or composition or adjustment of
debts, and such proceeding or case shall continue undismissed for a
period of 90 or more days, or a declaration of bankruptcy or concurso
mercantil shall be entered against such Obligor or Material Subsidiary
under the Mexican federal bankruptcy laws as now or hereafter in effect;
or
(h) A judgment for the payment of money is or judgments for the
payment of money are rendered against any Obligor or any of its
Subsidiaries in an amount exceeding in the aggregate $10,000,000 (or its
equivalent in other currencies) and shall remain unsatisfied,
undischarged and in effect for a period of 45 consecutive days without a
stay of execution, unless the same is adequately bonded or is being
contested by appropriate proceedings properly instituted and diligently
conducted and, in either case, such process is not being executed against
assets thereof; or any Obligor or any of its Subsidiaries shall fail to
pay when due to Social Security, INFONAVIT, IMSS or SAR any amount or
amounts aggregating $10,000,000 or more (or its equivalent in Pesos)
except to the extent the amount or amounts due are being contested in
good faith by appropriate proceedings, which proceedings have the effect
of preventing the forfeiture or sale of the Property of such Obligor or
Subsidiary; or
(i) (w) Any Mexican Governmental Authority shall impose exchange
controls prohibiting or in any manner materially restricting the making
of payments in respect of Indebtedness in a currency other than Pesos; or
(x) any Mexican Governmental Authority shall take any action to condemn,
seize, nationalize or appropriate any substantial portion of the Property
of any Obligor (with or without the payment of compensation); or (y) any
action is taken by a Mexican Governmental Authority, including without
limitation the declaration of a moratorium on payment of any
Indebtedness, that has an adverse effect on (i) the repayment of the
Loans or (ii) the schedule of payments of any Borrower hereunder or under
the Notes; or (z) any Obligor shall participate or take any action to
51
participate in any facility or exercise involving the rescheduling of its
Material Debt or the alteration of the currency in which it may pay its
obligations; or
(j) Any Obligor or any of its Subsidiaries shall enter into any
transaction of merger or consolidation, or liquidate, wind up or dissolve
itself (or suffer any liquidation or dissolution), or sell, transfer or
otherwise dispose of (in one transaction or in a series of transactions)
all or substantially all of its Property, except as expressly permitted
under Sections 9.08 and 9.13 hereof; or
(k) Any of the Loan Documents becomes unenforceable or the
performance of the obligations of any Obligor thereunder becomes illegal,
or the security interest created under Section 12 hereof shall not
constitute a valid first priority lien on and perfected security interest
in the Deposit Collateral, subject to no equal or prior Lien.
THEREUPON: in any such event, (1) the Administrative Agent shall, upon request
of the Majority Lenders, by notice to the Borrowers declare the Commitments to
be terminated forthwith, whereupon the Commitments shall forthwith terminate,
and/or (2) the Administrative Agent shall, upon request of the Majority
Lenders, by notice to the Borrowers declare the principal then outstanding of,
and the accrued interest on, the Loans and the Notes and all other amounts
payable by the Borrowers hereunder (including, without limitation, any amounts
payable under Section 5.04 hereof) to be forthwith due and payable, whereupon
such amounts shall be immediately due and payable without presentment, demand,
protest or other formalities of any kind, all of which are hereby expressly
waived by the Borrowers; provided, that in the case of an Event of Default of
the kinds referred to in clauses (f) or (g) above, the Commitments shall
automatically terminate and such amounts shall automatically become due and
payable, without any further action by any party, and/or (3) the Collateral
Agent shall, upon and pursuant to the instructions of the Administrative Agent
and the Tranche C Agent, proceed to enforce its remedies under Section 12
hereof (and, without limiting the foregoing, the Administrative Agent and
Tranche C Agent may instruct the Collateral Agent to apply the balance of the
Cash Reserve Account to payment of amounts owing under this Agreement) and the
Tranche C Loan Agreement, all in accordance with, and subject to, the terms of
the Intercreditor Agreement.
SECTION 12. THE CASH RESERVE ACCOUNT.
12.01 The Cash Reserve Account. (a) VVP Syndication hereby agrees as
follows:
(i) It has established, and will maintain until the termination
of the Commitments and the payment in full of all amounts payable
under the Loan Documents, the Cash Reserve Account.
(ii) The Administrative Agent is hereby irrevocably authorized
to and shall fund the Cash Reserve Account, on the date of the
Borrowing, out of the proceeds of the I Borrowing in an amount equal
to the Required Cash Reserve Balance as of the Borrowing Date.
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(iii) It will at all times on and after the Borrowing Date
cause the collected credit balance of the Cash Reserve Account to be
an amount equal to not less than the Required Cash Reserve Balance.
(b) Pledge. As collateral security for the prompt payment in full
when due (whether at stated maturity, by acceleration or otherwise) of
the principal of and interest on the Loans and all of the other
obligations, whether now existing or hereafter from time to time arising,
of the Obligors under the Loan Documents and the Tranche C Loan Agreement
(the "Secured Obligations"), VVP Syndication hereby pledges to the
Collateral Agent for the benefit of the Creditors, the Agents, the
Tranche C Agent and their respective successors and assigns, and grants
to the Collateral Agent for the benefit of the Creditors, the Agents, the
Tranche C Agent and their respective successors and assigns a first
priority security interest in, all of VVP Syndication' right, title and
interest in, to and under (i) the Cash Reserve Account, (ii) any and all
cash and Permitted Investments and other financial assets (within the
meaning of Section 8-102(a)(9) of the UCC) whatsoever at any time or from
time to time credited to the Cash Reserve Account, and any and all
security entitlements (within the meaning of Section 8-102(a)(17) of the
UCC) of VVP Syndication with respect to such financial assets, and (iii)
any and all proceeds of any of the foregoing (collectively, the "Deposit
Collateral").
(c) Sole Dominion. Without prejudice to the provisions of the
Account Control Agreement, VVP Syndication irrevocably confers upon the
Collateral Agent sole dominion and control over the Cash Reserve Account
and the sole and exclusive power and right to withdraw and remit funds
standing to the credit of the Cash Reserve Account, agrees that it shall
not have any right or power of withdrawal over the Cash Reserve Account,
and agrees that each of the authorizations provided for in this Section
12.01 is irrevocable and coupled with an interest. VVP Syndication
further irrevocably agrees that the Administrative Agent and Tranche C
Agent may give instructions regarding such transactions directly to the
Collateral Agent, and, subject to the terms of the Intercreditor
Agreement, VVP Syndication hereby irrevocably authorizes and instructs
the Collateral Agent to act upon such instructions from the
Administrative Agent and Tranche C Agent with respect to the Cash Reserve
Amount without any further consent of, or instruction from it. The
Collateral Agent shall, within 10 days after receiving an authenticated
demand from VVP Syndication following payment of all amounts owing
hereunder and under any other Loan Document, send to the Intermediary an
authenticated statement that releases the Intermediary from any further
obligation to comply with instructions originated by the Collateral
Agent.
(d) Instructions. Subject to the terms of the Intercreditor
Agreement, the Collateral Agent hereby agrees to accept and follow
instructions from the Administrative Agent and Tranche C Agent with
respect to the Cash Reserve Account and the Deposit Collateral. The
Collateral Agent shall be entitled to assume that no Default has occurred
and is continuing unless it receives notice in writing from the
Administrative Agent or the Tranche C Agent to the contrary.
53
(e) Advice. The Collateral Agent may at any time request the
Administrative Agent or the Tranche C Agent to advise it of the aggregate
amount of fees, expenses and other amounts falling due hereunder, and the
Collateral Agent may rely conclusively upon the information so provided.
(f) Full Recourse. No receipt, holding, application or disposition
of all or any part of the Deposit Collateral shall relieve any Borrower
of its liability for any deficiency in payment of its obligations under
the Loan Documents.
(g) Charges, etc. All fees, service charges, costs, adjustments for
any deposit errors, returned or dishonored items, uncollected funds or
any other deficiency for other charges and claims for any liability,
loss, damage cost or expense of the Collateral Agent relating to the Cash
Reserve Account (except to the extent any such amount is primarily
attributed to the Collateral Agent's bad faith, willful misconduct or
gross negligence) will be charged to the Cash Reserve Account. In the
event that the Collateral Agent is unable to recover all such amounts,
the Collateral Agent may, until such amounts are paid in full, (i) debit
any other account of VVP Syndication, (ii) debit any other account in the
name of VVP Syndication for the benefit of the Collateral Agent and/or
(iii) make demand therefor on VVP Syndication and VVP Syndication shall
remit payment in good and collected funds to the Collateral Agent within
two Business Days of such demand.
(h) VVP Syndication Representation. VVP Syndication represents and
warrants to the Collateral Agent for the benefit of the Creditors that
(a) it is the sole beneficial owner of the Deposit Collateral, (b) no
Lien exists upon the Deposit Collateral at any time, except for Liens
hereunder, and (c) the pledge and security interest in favor of the
Collateral Agent created or provided for herein constitute a valid first
Lien on and prior perfected security interest in the Deposit Collateral,
subject to no other Lien, except for Liens hereunder.
(i) Release. The Administrative Agent shall, promptly upon receiving
the evidence referred to in the proviso to Section 7.10 hereof, if no
Event of Default has occurred and is continuing, instruct the Collateral
Agent to release from the Cash Reserve Account an amount equal to the
Interim Supplement referred to in the definition of "Required Cash
Reserve Balance", and the Collateral Agent shall forthwith release the
same.
12.02 Permitted Investments. The collected credit balance of the
Cash Reserve Account will be invested by the Collateral Agent from time to
time, for the benefit of VVP Syndication, in one or more Permitted
Investments, so long as no Event of Default has occurred and is continuing.
The Collateral Agent shall, from time to time upon the reasonable request of
VVP Syndication, provide information in respect of the Permitted Investments
in which such balances may have been invested. The Collateral Agent shall have
no liability or responsibility whatsoever and makes no representation or
warranty as to the enforceability, validity, value, the creditworthiness or
collectibility of any Permitted Investment or the Cash Reserve Account.
54
12.03 Certain Provisions Relating to Agents.
(a) The Collateral Agent shall take steps as are instructed in
writing by the Administrative Agent or Tranche C Agent from time to time
with respect to the Deposit Collateral, subject to the terms of the
Intercreditor Agreement and the rights of the Borrowers under the Loan
Documents. The Collateral Agent shall not be required to take any action
which it considers to be contrary to law or this Agreement or the Account
Control Agreement, or which would subject it to personal liability,
provided that if the Collateral Agent shall decline to take action for
any such reason, it shall immediately notify the Administrative Agent,
the Tranche C Agent and the Borrowers.
(b) Neither Agent nor the Tranche C Agent shall be liable for any
action taken or omitted by it with respect to the Deposit Collateral on
the instructions of the other Agent or the Tranche C Agent. Each Agent
and the Tranche C Agent may conclusively rely and shall be fully
protected in acting or refraining from acting upon any certificate,
statement, request, agreement or other instrument it reasonably believes
to be genuine and to have been signed or presented by or on behalf of the
other Agent or the Tranche C Agent. In maintaining the Cash Reserve
Account and otherwise acting hereunder, the Collateral Agent may consult
with counsel and shall be fully protected with respect to any action
taken or omitted by it in good faith on advice of counsel and shall have
no liability hereunder except for its bad faith, willful misconduct or
gross negligence with respect to its obligations hereunder.
12.04 Intercreditor Agreement. The parties acknowledge that the
Deposit Collateral shall be subject to the terms of the Intercreditor
Agreement.
12.05 Events of Default, Etc. While an Event of Default has occurred
and is continuing, subject in each case to the terms of the Intercreditor
Agreement:
(a) the Collateral Agent shall have all of the rights and remedies
with respect to the Deposit Collateral of a secured party under the
Uniform Commercial Code as in effect from time to time in the State of
New York (whether or not said Code is in effect in the jurisdiction where
the rights and remedies are asserted) and such I additional rights and
remedies to which a secured party is entitled under the laws in effect in
any jurisdiction where any rights and remedies hereunder may be asserted,
including, without limitation, the right, to the maximum extent permitted
by law, to exercise all powers of ownership pertaining to the Deposit
Collateral as if the Collateral Agent were the sole and absolute owner
thereof (and VVP Syndication agrees to take all such action as may be
appropriate to give effect to such right);
(b) the Collateral Agent may apply or direct the application of any
balances then on deposit in the Cash Reserve Account to the
Administrative Agent and the Tranche C Agent for the payment of any of
the Secured Obligations then due and unpaid;
55
(c) the Collateral Agent may liquidate any Permitted Investments and
apply or cause to be applied the proceeds thereof to the payment of the
Secured Obligations then due and unpaid in the order specified in the
Intercreditor Agreement; and
The Collateral Agent agrees to provide VVP Syndication, in a commercially
reasonably manner, with prompt notice of actions taken under this Section
12.05.
12.06 Deficiency. If the proceeds of collection or other realization
of or upon the Deposit Collateral pursuant to Section 12.05 hereof are
insufficient to cover the reasonably incurred costs and expenses of such
realization and the payment in full of the Secured Obligations, the Borrowers
shall remain liable for any deficiency.
12.07 Removals, Etc. Without at least 30 days' prior written notice
to the Collateral Agent, VVP Syndication shall not (a) maintain any of its
books and records with respect to the Collateral at any office or maintain its
principal place of business at any place other than at the address for notices
indicated in Section 14.02 hereof or (b) change its name, or the name under
which it does business, from the name shown on the signature pages hereto.
12.08 Attorney-in-Fact. Without limiting any rights or powers
granted by this Agreement to the Collateral Agent while no Event of Default
has occurred and is continuing, upon the occurrence and during the continuance
of any Event of Default the Collateral Agent is hereby appointed the
attorney-in-fact of VVP Syndication for the purpose of carrying out the
provisions of this Section 12 and taking any action and executing any
instruments that the Collateral Agent may deem necessary or advisable, acting
in a commercially reasonable manner, to accomplish the purposes hereof, which
appointment as attorney-in-fact is irrevocable and coupled with an interest.
Without limiting the generality of the foregoing, so long as the Collateral
Agent shall be entitled under this Section 12 to make collections in respect
of the Deposit Collateral, and the Collateral Agent shall have the right and
power to receive, endorse and collect all checks made payable to the order of
VVP Syndication representing any payment or other distribution in respect of
the Deposit Collateral or any part thereof and to give full discharge for the
same.
12.09 Termination. When all Secured Obligations shall have been paid
in full, this Agreement shall terminate, and the Collateral Agent shall
forthwith cause to be assigned, transferred and delivered, against receipt but
without any recourse, warranty or representation whatsoever, any remaining
Deposit Collateral and money received in respect thereof, to or on the order
of VVP Syndication.
12.10 No Waiver. No failure on the part of the Collateral Agent to
exercise, and no course of dealing with respect to, and no delay in
exercising, any right, power or remedy hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise by the Collateral Agent of
any right, power or remedy hereunder preclude any other or further exercise
thereof or the exercise of any other right, power or remedy. The remedies
herein are cumulative and are not exclusive of any remedies provided by law.
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SECTION 13. THE AGENTS.
13.01 Appointment, Powers and Immunities.
(i) Each Lender hereby appoints and authorizes each Agent to
act as its agent hereunder and under the Intercreditor Agreement and
the Account Control Agreement with such powers as are specifically
delegated to such Agent by the terms hereof and thereof, together
with such other powers as are reasonably incidental thereto. Each
Agent (which term as used in this sentence and in Section 13.05
hereof and the first sentence of Section 13.06 hereof shall include
reference to their respective affiliates and its own and their
respective affiliates' officers, directors, employees and agents):
(a) shall have no duties or responsibilities except those expressly
set forth in this Agreement and the other Loan Documents, and shall not
by reason of this Agreement or the other Loan Documents be a trustee or
fiduciary for any party hereto;
(b) shall not be responsible to the Lenders for any recitals,
statements, representations or warranties contained in this Agreement or
the other Loan Documents, or in any certificate or other document
referred to or provided for in, or received by any of them under, this
Agreement or the other Loan Documents, or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of any Loan
Document or any other document referred to or provided for herein or
therein or for any failure by any Obligor or any other Person to perform
any of its obligations hereunder or thereunder;
(c) shall not be required to initiate or conduct any litigation or
collection proceedings hereunder (and shall not commence an action or
proceeding on behalf of any Lender without obtaining the consent of such
Lender thereto); and
(d) shall not be responsible for any action taken or omitted to be
taken by it hereunder or under any other document or instrument referred
to or provided for herein or therein or in connection herewith or
therewith, except for its own gross negligence or willful misconduct.
Each Agent may employ agents and attorneys-in-fact and shall not be
responsible for the negligence or misconduct of or for the supervision of any
such agents or attorneys-in-fact selected by it in good faith.
(ii) Each Lender and the Administrative Agent irrevocably
authorize and direct the Administrative Agent and the Collateral
Agent to enter into the Intercreditor Agreement and to comply with
the terms thereof.
(iii) Before the Collateral Agent acts or refrains from acting
hereunder, it may require an officer's certificate of the Borrowers
and/or an opinion of counsel satisfactory to the Collateral Agent
with respect to such action or inaction. The Collateral Agent shall
not be liable for any action it takes or omits to take in good faith
in reliance on such certificate or opinion. Whenever in the
administration of this Agreement the Collateral Agent shall deem it
necessary
57
or desirable that a matter be provided or established prior to
taking or suffering or omitting to take any act under this
Agreement, such matter (unless other evidence in respect thereof be
herein specifically prescribed) may, in the absence of gross
negligence or bad faith on the part of the Collateral Agent, be
deemed to be conclusively proved and established by an officers'
certificate delivered to the Collateral Agent, and such certificate,
in the absence of gross negligence or bad faith on the part of the
Collateral Agent, shall be full warrant to the Collateral Agent for
any action taken, suffered or omitted to be taken by it under the
provisions of Section 12 upon the faith thereof.
13.02 Reliance by Agents. Each Agent shall be entitled to
conclusively rely upon any certification, notice or other communication
(including, without limitation, any thereof by telephone, telecopy, telex,
telegram or cable) reasonably believed by it to be genuine and correct and to
have been signed, made or sent by or on behalf of the proper Person or
Persons, and upon advice and statements of legal counsel and other experts
selected by such Agent, as the case may be. As to any matters not expressly
provided for by this Agreement and the other Loan Documents, each Agent shall
in all cases be fully protected in acting, or in refraining from acting,
hereunder in accordance with instructions given by the Majority Lenders, and
such instructions of the Majority Lenders and any action taken or failure to
act pursuant thereto shall be binding on all of the Lenders.
13.03 Defaults. Neither Agent shall be deemed to have knowledge or
notice of the occurrence of a Default (other than, in the case of the
Administrative Agent, a failure to make a payment of principal of or interest
on the Loans) unless such Agent has received notice from a Lender or a
Borrower specifying such Default and stating that such notice is a "Notice of
Default". In the event that the Administrative Agent receives a Notice of a
Default, the Administrative Agent shall give prompt notice thereof to the
Lenders and the Collateral Agent. The Administrative Agent shall (subject to
Section 13.07 hereof) take such action with respect to any such Default as
shall be directed by the Majority Lenders or, if provided herein, in
accordance with the instructions given by the Majority Tranche A Lenders, the
Majority Tranche B Lenders or all of the Lenders as is required in such
circumstance, provided, that unless and until the Administrative Agent shall
have received such directions, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with
respect to such Default as it shall deem advisable in the best interest of the
Lenders except to the extent that this Agreement expressly requires that such
action be taken, or not be taken, only with the consent or upon the
authorization of the Majority Lenders, the Majority Tranche A Lenders, the
Majority Tranche B Lenders or all of the Lenders.
13.04 Rights as a Lender. With respect to its Commitment and the
Loans made by it, each of Citibank, N.A. and Wachovia Bank, National
Association (and any successor acting as Administrative Agent or Collateral
Agent, respectively) in its individual capacity as a Lender hereunder (if
applicable) shall have the same rights and powers hereunder as any other
Lender and may exercise the same as though it were not acting as the
Administrative Agent or the Collateral Agent, as applicable, and the term
"Lender" or "Lenders" shall, unless the context otherwise indicates, include
the Administrative Agent and the Collateral Agent in their individual
capacities. Each of Citibank, N.A. and Wachovia Bank, National Association
(and any successor acting as Administrative Agent or Collateral Agent,
respectively) and its affiliates
58
may (without having to account therefor to any Lender) accept deposits from,
lend money to, make investments in and generally engage in any kind of
banking, trust or other business with the Obligors as if it were not acting as
the Administrative Agent or Collateral Agent, as applicable, and Citibank,
N.A. and Wachovia Bank, National Association (and any such successor) and its
affiliates may accept fees and other consideration from the Obligors for
services in connection with this Agreement or otherwise without having to
account for the same to the Lenders.
13.05 Indemnification. The Lenders agree to indemnify each Agent (to
the extent not reimbursed under Section 14.03 hereof, but without limiting the
obligations of the Borrowers under said Section 14.03 hereof) ratably in
accordance with the aggregate principal amount of the Loans held by the
Lenders (or, if no Loans are at the time outstanding, ratably in accordance
with their respective Commitments), for any and all liabilities, claims,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind and nature whatsoever (including without
limitation the fees and disbursements of counsel) that may be imposed on,
incurred by or asserted against such Agent arising out of or by reason of any
investigation in any way relating to or arising out of this Agreement or any
of the other Loan Documents or any other documents contemplated by or referred
to herein or therein or the transactions contemplated hereby or thereby
(including, without limitation, the costs and expenses that the Borrowers are
obligated to pay under Section 14.03 hereof, but excluding, unless an Event of
Default has occurred and is continuing, normal administrative costs and
expenses incident to the performance of its agency duties hereunder) or the
enforcement of any of the terms hereof or thereof or of any such other
documents, provided, that no Lender shall be liable for any of the foregoing
to the extent they arise from the gross negligence or willful misconduct of
the party to be indemnified as determined by a final, nonappealable judgment
by a court of competent jurisdiction. In no event shall any Loan Party be
liable for any punitive or consequential damages in connection with any of the
Loan Documents. The obligations of the Lenders under this Section 13.05 shall
survive the termination of this Agreement, the repayment of the Loans and the
resignation or removal of either Agent.
13.06 Non-Reliance on Agents and Other Lenders. Each Lender agrees
that it has, independently and without reliance on either Agent or the Joint
Lead Arrangers or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own credit analysis of the
Obligors and decision to enter into this Agreement and that it will,
independently and without reliance upon either Agent or the Joint Lead
Arrangers or any other Lender, and based on such documents and information as
it shall deem appropriate at the time, continue to make its own analysis and
decisions in taking or not taking action under this Agreement or the other
Loan Documents. The Agents shall not be required to keep themselves informed
as to the performance or observance by the Obligors of this Agreement or any
other Loan Document or any other document referred to or provided for herein
or therein or to inspect the Properties or books of any Obligor. Except for
notices, reports and other documents and information expressly required to be
furnished to the Lenders by an Agent hereunder, such Agent shall not have any
duty or responsibility to provide any Lender with any credit or other
information concerning the affairs, financial condition or business of any
Obligor that may come into the possession of such Agent or any of its
affiliates.
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13.07 Failure to Act. Except for action expressly required of an
Agent hereunder or under any other Loan Document, such Agent shall in all
cases be fully justified in failing or refusing to act hereunder or thereunder
unless it shall receive further assurances to its satisfaction from the
Lenders of their indemnification obligations under Section 13.05 hereof
against any and all liability and expense that may be incurred by it by reason
of taking or continuing to take any such action. No provision of this
Agreement shall require either Agent to expend or risk its own funds or
otherwise incur financial liability in the performance of any of its duties
hereunder or in the exercise of any of its rights or powers, if it shall have
reasonable grounds to believe that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
13.08 Resignation or Removal of Agents. Either Agent may resign at
any time by giving notice thereof to the Lenders, the other Agent and the
Borrowers, and either Agent may be removed at any time with or without cause
by the Majority Lenders. Upon any such resignation or removal, the Majority
Lenders shall have the right to appoint a successor Agent, which shall, unless
an Event of Default has occurred and is continuing, (in the case of the
Administrative Agent) be a bank approved by the Borrowers (such approval not
to be unreasonably withheld) that (i) has an office in New York, New York,
(ii) is registered as a "foreign financial institution" with the Ministry of
Finance for purposes of Article 154 of the Mexican Income Tax Law, and (iii)
is a resident for tax purposes of a country with which Mexico shall have
entered into a treaty for the avoidance of double taxation which is in effect.
If no successor Agent shall have been so appointed by the Majority Lenders and
shall have accepted such appointment within 30 days after the retiring Agent's
giving of notice of resignation or the Majority Lenders' removal of the
retiring Agent, then the retiring Agent's resignation shall nonetheless become
effective and (1) the retiring Agent shall be discharged from its duties and
obligations hereunder and (2) the Majority Lenders shall perform the duties of
the Agent (and all payments and communications provided to be made by, to or
through such Agent shall instead be made by or to each Lender directly) until
such time as the Majority Lenders appoint a successor agent as provided for
above in this paragraph, provided that the Collateral Agent shall continue to
maintain control of any Deposit Collateral for the benefit of the Lenders
until a successor is appointed. Upon the acceptance of any appointment as an
Agent hereunder by a successor Agent, such successor Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and
duties of the retiring Agent, and the retiring Agent shall be discharged from
its duties and obligations hereunder and under the Account Control Agreement
and Intercreditor Agreement except to the extent of liability arising from
prior action. Notwithstanding the foregoing, no removal of either Agent shall
be effective until all amounts then due and owing to the removed Agent shall
be paid in full. After any retiring Agent's resignation or removal hereunder
as Agent, the provisions of this Section 13 shall continue in effect for its
benefit in respect of any actions taken or omitted to be taken by it while it
was acting as an Agent.
13.09 The Joint Lead Arrangers. The Joint Lead Arrangers, in their
capacities as such, shall not have any obligations or liabilities hereunder or
under any other Loan Document.
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SECTION 14. MISCELLANEOUS.
14.01 Waiver. No failure on the part of any Loan Party to exercise
and no delay in exercising, and no course of dealing with respect to, any
right, power or privilege under any Loan Document shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, power or
privilege under any Loan Document preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The remedies
provided herein are cumulative and not exclusive of any remedies provided by
law.
14.02 Notices. (a) All notices, requests, instructions, directions
and other communications provided for herein (including, without limitation,
any modifications of, or waivers, requests or consents under, this Agreement)
shall be given or made in writing (including, without limitation, by telecopy)
delivered, if to any Obligor or any Agent, to its address specified on the
signature pages hereto, and if to any Lender, to its "Address for Notices"
specified opposite its name on Annex 1 hereto; or, as to any party, at such
other address as shall be designated by such party in a notice to the
Administrative Agent and the Borrowers.
(b) Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given upon receipt of a
legible copy thereof, in each case given or addressed as aforesaid,
provided that each Lender acknowledges and accepts the terms of the
Communications Agreement and agrees that Communications (as defined in
the Communications Agreement) may be made available to such Lender as
provided in the Communications Agreement, agrees to provide to the
Administrative Agent, promptly after the date of this Agreement, an
e-mail address for receipt of each notice to such Lender that
Communications have been posted on the Platform referred to in the
Communications Agreement, and agrees that such notice to such Lender of
such posting shall constitute effective delivery of such Communications
to such Lender hereunder.
(c) All notices required by this Agreement to be given to the
Borrowers may be so given by being delivered, in accordance herewith, to
Vitro Plan at the address specified beneath its signature hereto.
14.03 Expenses, Etc. (a) (i) The Borrowers agree to pay or reimburse
each Agent and each Joint Lead Arranger for all of its reasonable and
documented out-of-pocket costs and expenses (including, without limitation,
the reasonable fees and expenses of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP,
special New York counsel to the Administrative Agent, counsel to the
Collateral Agent, and ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇, S.C., special Mexican counsel
to the Agents, and ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special counsel to Comerica
Bank, and printing, reproduction, document delivery, communication and travel
costs) in connection with (y) the syndication, negotiation, preparation,
execution and delivery of this Agreement and the other Loan Documents and the
making of the Loans hereunder and (z) in the case of the Administrative Agent
only, the administration of and the negotiation or preparation of any
modification, supplement or waiver of any of the terms of this Agreement or
any of the other Loan Documents (whether or not consummated) and (ii) each
Obligor agrees to reimburse each
61
Loan Party for all of its documented out-of-pocket costs and expenses
(including, without limitation, the fees and expenses of legal counsel) in
connection with (A) any Default and any enforcement or collection proceeding
resulting therefrom, including, without limitation, all manner or
participation in or other involvement with (1) performance, if any, by the
Collateral Agent of any obligations of VVP Syndication in respect of the
Deposit Collateral that VVP Syndication has failed or refused to perform, (2)
bankruptcy, insolvency, receivership, foreclosure, winding up or liquidation
proceedings, or any actual or attempted sale, or any exchange, enforcement,
collection, compromise or settlement in respect of any of the Deposit
Collateral and for the care of the Deposit Collateral and defending or
asserting rights and claims of the Collateral Agent and in respect thereof, by
litigation or otherwise, including expenses of insurance, (3) judicial or
regulatory proceedings and (4) workout, restructuring or other negotiations or
proceedings (whether or not the workout, restructuring or transaction
contemplated thereby is consummated) and (B) the enforcement of this Section
14.03, and all such costs and expenses shall be Secured Obligations entitled
to the benefits of the Deposit Collateral provided pursuant to Section 12
hereof.
(b) Each Borrower hereby agrees to indemnify each Loan Party and
each Joint Lead Arranger and their respective directors, officers, employees,
attorneys and agents from, and hold each of them harmless against, any and all
losses, liabilities, claims, damages (including indirect, punitive and
consequential damages) or expenses incurred by any of them arising out of or
by reason of any litigation or other proceedings (including any threatened
litigation or other proceedings) relating to the Loans or the use or proposed
use by the Borrowers of the proceeds of any of the Loans, including, without
limitation, the fees and disbursements of counsel incurred in connection with
any such litigation or other proceedings (but excluding any such losses,
liabilities, claims, damages or expenses incurred by reason of the gross
negligence or willful misconduct of the Person to be indemnified, as
determined by a final, nonappealable judgment by a court of competent
jurisdiction). In no event shall any Loan Party be liable for any punitive or
consequential damages in connection with any of the Loan Documents. Nothing
herein shall be deemed to limit the provisions of the Communications
Agreement.
14.04 Amendments, Etc. Except as otherwise expressly provided in
this Agreement and subject to the terms of the Intercreditor Agreement, any
provision of this Agreement may be modified or supplemented only by an
instrument in writing signed by the Borrowers and the Majority Lenders, or by
the Borrowers and the Agents acting with the consent of the Majority Lenders,
and any provision of this Agreement may be waived by the Majority Lenders or
by the Agents acting with the consent of the Majority Lenders; provided, that
no modification, supplement or waiver shall, unless by an instrument signed by
all of the Lenders or by the Administrative Agent acting with the consent of
all of the Lenders (i) increase or extend the term of the Commitments, (ii)
extend the date fixed for the payment of principal of or interest on any Loan
or any fee hereunder, (iii) reduce the amount of any such payment of
principal, (iv) reduce the rate at which interest is payable thereon or any
fee is payable hereunder, (v) release the Deposit Collateral (except in
accordance with the express terms of Section 12 hereof) or alter the
provisions of Section 10.02(a) hereof or Section 12, (vi) release any
Guarantor from its obligations hereunder, (vii) alter the provisions of
Section 6.01 hereof or waive any condition precedent set forth therein (viii)
alter the terms of this Section 14.04, or (ix) modify the definition of the
term "Majority Lenders", "Majority Tranche A Loan Lenders"
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or "Majority Tranche B Loan Lenders", or modify in any other manner the number
or percentage of the Lenders required to make any determinations or waive any
rights hereunder or to modify any provision hereof, or amend those provisions
of the Intercreditor Agreement that relate to the sharing or disposition of
collateral or to the exercise by the Creditors of voting or decision-making
rights; and in addition to the foregoing, any modification or supplement of
Section 13 hereof, or of any of the rights or duties of the Administrative
Agent or the Collateral Agent hereunder or under the Intercreditor Agreement
or the Account Control Agreement, shall require the consent of the
Administrative Agent or the Collateral Agent, as the case may be. Any such
amendment or waiver shall be binding upon the Lenders, each holder of any of
the Guaranteed Obligations and each Guarantor.
14.05 Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and permitted assigns.
14.06 Assignments and Participations.
(a) No Obligor may assign any of its rights or obligations hereunder
or under any of the other Loan Documents without the prior written
consent of all of the Loan Parties (and any assignment in violation of
this clause (a) shall be void).
(b) Each Lender may, with the prior consent of the Administrative
Agent (not to be unreasonably withheld), assign its Loan or Loans and its
Commitment or Commitments or any portion thereof; provided, that
(i) any such partial assignment (other than to another Lender)
shall be in an amount at least equal to $2,000,000 and increments of
$1,000,000 in excess thereof;
(ii) upon each such assignment, the assignor and assignee shall
deliver to the Borrowers and the Administrative Agent a Notice of
Assignment in substantially the form of Exhibit K hereto (a "Notice
of Assignment");
(iii) each such assignee (other than a Mexican Bank) must be
registered as a "foreign financial institution" with the Ministry of
Finance in the registry referred to in Article 195 (or any successor
provision) of the Mexican Income Tax Law and be resident for tax
purposes of (or the main office of such financial institution, if
acting through a branch or an agency, must be a resident for tax
purposes of) a jurisdiction that is party to a treaty for the
avoidance of double taxation with Mexico which is in effect; and
(iv) each such assignee shall be an Eligible Assignee; and
provided, further, that upon execution and delivery by the assignor and
the assignee to the Borrowers and the Administrative Agent of such Notice
of Assignment, and upon consent thereto to the extent required above, the
assignee shall have, to the extent of such assignment, the obligations,
rights and benefits of a Lender hereunder holding the
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Commitment or Commitments and Loan or Loans (or portion thereof) assigned
to it and specified in such Notice of Assignment (in addition to the
Commitment and Loan, if any, theretofore held by such assignee) and the
assigning Lender shall, to the extent of such assignment, be released
from the Commitment or Commitments (or portion thereof) so assigned (and
if so requested by the assignor and the assignee the Borrowers will issue
and deliver to the assignor and the assignee new Notes reflecting such
assignment). Upon its receipt of a Notice of Assignment executed by an
assigning Lender and an assignee together with (except in the case of an
assignment by a Lender to an Affiliate of such Lender) payment by the
assignee to the Administrative Agent of an assignment fee of $3,500, the
Administrative Agent shall (i) promptly accept such Notice of Assignment
and (ii) on the effective date determined pursuant thereto record the
information contained therein in the Register (as hereinafter defined)
and give notice of such acceptance and recordation to the Lenders and the
Borrowers. Notwithstanding anything to the contrary contained herein, the
Borrowers shall not be obligated to pay to any Lender (or any assignee of
any Lender) any amount under any of Sections 5.01, 5.03, 5.04 or 5.05
hereof greater than the amount the Borrowers would have been obligated to
pay to such Lender if such Lender had not made any assignment of its
rights under this Agreement, unless such assignment is made at a time
when the circumstances giving rise to such greater payments did not
exist.
(c) The Administrative Agent shall maintain at the address of the
Administrative Agent referred to in Section 14.02 hereof a copy of each
Notice of Assignment delivered to it and a register (the "Register") for
the recordation of the names and addresses of the Lenders and the
principal amounts of the Loans owing to each Lender from time to time.
Each Obligor and the Loan Parties shall treat, and shall be entitled to
treat, each Person whose name is recorded in the Register as the owner of
a Loan or other obligations hereunder as the owner thereof for all
purposes of this Agreement, notwithstanding any notice to the contrary.
Any assignment of any Loan or other obligation hereunder shall be
effective only upon appropriate entries with respect thereto being made
in the Register. The Register shall be available for inspection by the
Borrowers or any Loan Party at any reasonable time and from time to time
upon reasonable prior notice.
(d) A Lender may, in accordance with applicable law, sell or agree
to sell to one or more other Persons (each a "Participant") a
participation in all or any part of the Loan or Loans held by it, or in
its Commitment or Commitments, provided, that such Participant shall not
have any rights or obligations under this Agreement (the Participant's
rights against such Lender in respect of such participation to be those
set forth in the agreements executed by such Lender in favor of the
Participant) and, provided, further, that such Participant be registered
as a "foreign financial institution" with the Ministry of Finance for
purposes of Article 197 (or any successor provision) of the Mexican
Income Tax Law and be domiciled at a country with which Mexico has
entered into a treaty for the avoidance of double taxation which is in
effect. All amounts payable by the Borrowers to any Lender under Section
5 hereof in respect of any Loan held by it, and its Commitment, shall be
determined as if such Lender had not sold or agreed to sell any
participations in such Loan and Commitment, and as if such Lender were
funding such Loan and Commitment in the same way that it is funding the
portion
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of such Loan and Commitment in which no participations have been sold. In
no event shall a Lender that sells a participation agree with the
Participant to take or refrain from taking any action hereunder except
that such Lender may agree with the Participant that it will not, without
the consent of the Participant, agree to (i) increase or extend the term
of such Lender's Commitment, (ii) extend the date fixed for the payment
of principal of or interest on the related Loan or any portion of any fee
hereunder payable to the Participant, (iii) reduce the amount of any such
payment of principal, (iv) reduce the rate at which interest is payable
thereon to a level below the rate at which the Participant is entitled to
receive such interest or (v) release the Deposit Collateral (except in
accordance with Section 12 hereof).
(e) In addition to the assignments and participations permitted
under the foregoing provisions of this Section 14.06, any Lender may
(without notice to or consent of the Borrowers, the Administrative Agent
or any other Lender and without payment of any fee) assign and pledge all
or any portion of its Loans and Notes to (i) any Federal Reserve Bank as
collateral security pursuant to Regulation A of the Board of Governors of
the Federal Reserve System and any Operating Circular issued by such
Federal Reserve Bank and (ii) to any of its Affiliates or other Lenders,
provided that such Lender shall simultaneously advise the Borrowers and
the Administrative Agent of such assignment or pledge. No such assignment
shall release the assigning Lender from its obligations hereunder.
(f) A Lender may furnish any information concerning the Obligors
obtained by such Lender hereunder from time to time to prospective
assignees and participants (including prospective assignees and
participants), provided, that such Lender shall advise such prospective
assignee or participant that such information is being provided on the
understanding that it is subject to the provisions set forth in Section
14.19 hereof.
14.07 Survival. The obligations of the Borrowers under Sections
5.01, 5.04, 5.05 and 14.03 (subject to the limitations under Section 14.03(b))
hereof, the obligations of the Lenders under Section 13.05 hereof and the
provisions of Section 12 hereof, shall survive the repayment of the Loans and
the termination of the Commitments (in the case of the provisions of Section
12 hereof, until payment of all amounts under the Tranche C Loan Agreement)
and, in the case of any Lender that may assign any interest in its Commitments
or Loans hereunder, shall survive, in the case of any event or circumstance
that occurred prior to the effective date of such assignment, the making of
such assignment, notwithstanding that such assigning Lender may cease to be a
"Lender" hereunder. In addition, each representation and warranty made, or
deemed to be made by a notice of any Loan, herein or pursuant hereto shall
survive the making of such representation and warranty.
14.08 Captions. The table of contents and captions and section
headings appearing herein are included solely for convenience of reference and
are not intended to affect the interpretation of any provision of this
Agreement.
14.09 Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and any of
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the parties hereto may execute this Agreement by signing any such counterpart.
A set of the copies of this Agreement signed by all the parties hereto shall
be lodged with each Borrower and each Agent.
14.10 Governing Law. This Agreement and the rights and obligations
of the parties hereunder shall be governed by, and construed in accordance
with, the law of the State of New York.
14.11 Jurisdiction, Service of Process and Venue.
(a) Each of the parties hereto agrees that any suit, action or
proceeding with respect to this Agreement or any of the other Loan
Documents or any judgment entered by any court in respect thereof may be
brought in the United States District Court for the Southern District of
New York or the Supreme Court of the State of New York, County of New
York, and in the courts of its own corporate domicile, in respect of
actions brought against it as a defendant, and irrevocably submits to the
jurisdiction of each such court for the purpose of any such suit, action,
proceeding or judgment.
(b) Each Obligor hereby irrevocably appoints CT Corporation System
(the "Process Agent"), with an office on the date hereof at ▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, as its agent and true and lawful
attorney-in-fact in its name, place and stead to accept on behalf of such
Obligor and its Property and revenues service of copies of the summons
and complaint and any other process which may be served in any such suit,
action or proceeding brought in the State of New York, and each Obligor
agrees that the failure of the Process Agent to give any notice of any
such service of process to such Obligor shall not impair or affect the
validity of such service or, to the extent permitted by applicable law,
the enforcement of any judgment based thereon. For the avoidance of
doubt, the appointment described in this Section 14.11(b) shall be
governed by, and construed in accordance with, the law of the State of
New York.
(c) Nothing herein shall in any way be deemed to limit the ability
of any Loan Party to serve any such process or summonses in any other
manner permitted by applicable law.
(d) Each Obligor hereby irrevocably waives to the fullest extent
permitted by law any objection that it may now or hereafter have to the
laying of the venue of any suit, action or proceeding arising out of or
relating to this Agreement or any of the other Loan Documents brought in
the United States District Court for the Southern District of New York or
the Supreme Court of the State of New York and hereby further irrevocably
waives to the fullest extent permitted by law any claim that any such
suit, action or proceeding brought in any such court has been brought in
an inconvenient forum and any right to which it may be entitled on
account of place of residence or domicile. A final judgment (in respect
of which time for all appeals has elapsed) in any such suit, action or
proceeding shall be conclusive and may be enforced in any court to the
jurisdiction of which any Obligor is or may be subject, by suit upon
judgment.
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14.12 Waiver of Jury Trial. EACH OBLIGOR AND EACH OF THE LOAN
PARTIES HEREBY IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE OTHER
LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY.
14.13 Waiver of Immunity. To the extent that any Obligor may be or
become entitled to claim for itself or its Property or revenues any immunity
on the ground of sovereignty or the like from suit, court jurisdiction,
attachment prior to judgment, attachment in aid of execution of a judgment or
execution of a judgment, and to the extent that in any such jurisdiction there
may be attributed such an immunity (whether or not claimed), each Obligor
hereby irrevocably agrees not to claim and hereby irrevocably waives such
immunity with respect to its obligations under this Agreement and the other
Loan Documents.
14.14 Judgment Currency. This is an international loan transaction
in which the specification of Dollars and payment in New York City is of the
essence, and the obligations of the Obligors under this Agreement and the
other Loan Documents to each Loan Party (in this Section 14.14 called an
"Entitled Person") to make payment in Dollars shall not be discharged or
satisfied by any tender or recovery pursuant to any judgment expressed in or
converted into any other currency or in another place except to the extent
that on the Business Day following receipt of any sum adjudged to be so due in
the judgment currency such Entitled Person may in accordance with normal
banking procedures purchase, and transfer to New York City, Dollars in the
amount originally due to such Entitled Person with the judgment currency. If
for the purpose of obtaining judgment in any court it is necessary to convert
a sum due hereunder in Dollars into another currency (in this Section 14.14
called the "judgment currency"), the rate of exchange that shall be applied
shall be that at which in accordance with normal banking procedures the
Entitled Person could purchase such Dollars at New York, New York with the
judgment currency on the Business Day next succeeding the day on which such
judgment is rendered. Each Obligor hereby, as a separate obligation and
notwithstanding any such judgment, agree to indemnify such Entitled Person
against, and to pay each Entitled Person on demand, in Dollars, the amount (if
any) by which the sum originally due to such Entitled Person in Dollars
hereunder exceeds the amount of the Dollars purchased and transferred as
aforesaid. Each Entitled Person, as a separate obligation and notwithstanding
any such judgment, agrees to pay to any Obligor hereby on demand, in Dollars,
the amount (if any) by which the amount of the Dollars purchased and
transferred as aforesaid exceeds the sum originally due to such Obligor in
Dollars hereunder.
14.15 Use of English Language. This Agreement has been negotiated
and executed in the English language. All certificates, reports, notices and
other documents and communications given or delivered pursuant to this
Agreement (including, without limitation, any modifications or supplements
hereto) shall be in the English language, or accompanied by a certified
English translation thereof, other than any document originally issued in a
language other than English.
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14.16 Entire Agreement. This Agreement and the other Loan Documents
and the agreement referred to in Section 2.03 hereof constitute the entire
agreement among the parties with respect to the subject matter hereof and
thereof.
14.17 Severability. If any provision hereof is found by a court to
be invalid or unenforceable, to the fullest extent permitted by applicable law
the parties agree that such invalidity or unenforceability shall not impair
the validity or enforceability of any other provision hereof.
14.18 Right of Set-off. Upon the occurrence and during the
continuance of any Event of Default, each Lender and each of its Affiliates is
hereby authorized at any time and from time to time, to the fullest extent
permitted by law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final, in whatever currency) at any
time held and other indebtedness at any time owing by such Lender or such
Affiliate to or for the credit or the account of any Obligor against any and
all of the obligations of such Obligor now or hereafter existing under this
Agreement and the other Loan Documents held by such Lender, whether or not
such Lender shall have made any demand under this Agreement and although such
obligations may be unmatured. Each Lender agrees promptly to notify the
Borrowers after any such set-off and application, provided, that the failure
to give such notice shall not affect the validity of such set-off and
application. The rights of each Lender and its Affiliates under this Section
are in addition to other rights and remedies (including, without limitation,
other rights of set-off) that such Lender and its Affiliates may have.
14.19 Confidentiality. Each Lender agrees to hold all Confidential
Information obtained pursuant to the provisions of this Agreement or any other
Loan Document in accordance with its customary procedure for handling such
information of this nature and in accordance with safe and sound banking
practices, provided, that nothing herein shall prevent any Lender from
disclosing such information (i) to any other Loan Party, (ii) upon the order
of any court or administrative agency or otherwise to the extent required by
statute, rule, regulation or judicial process, (iii) to bank examiners or upon
the request or demand of any other regulatory agency or authority, (iv) which
had been publicly disclosed other than as a result of a disclosure by any Loan
Party prohibited by this Agreement, (v) in connection with any litigation to
which any one or more of the Loan Parties is a party, or in connection with
the exercise of any remedy hereunder or under the Loan Documents, (vi) to such
Loan Party's legal counsel and independent auditors and accountants, and (vii)
subject to provisions substantially similar to those contained in this Section
14.19, to any actual or proposed participant or assignee; provided, that the
Obligors and the Loan Parties hereby agree that the Obligors and the Loan
Parties (and each of their respective employees, representatives, or agents)
are permitted to disclose to any and all persons, without limitation of any
kind, the structure and tax aspects of the transactions contemplated herein,
and all materials of any kind (including opinions or other tax analyses) that
relate to such structure and tax aspects. In this regard, the parties
acknowledge and agree that any disclosure of the structure or tax aspects of
the transactions contemplated by this Agreement is not limited in any way by
an express or implied understanding or agreement, oral or written (whether or
not such understanding or agreement is legally binding). The foregoing is
intended solely to comply with the presumption set forth in Treasury
Regulation 1.6011-4T(b)(3)(iv) and is not intended to permit the disclosure of
any information to the extent such disclosure is not
68
required in order to avoid the transactions contemplated by this Agreement
being treated as a "reportable transaction" within the meaning of Treasury
Regulation 1.6011-4T(b).
14.20 No Fiduciary Relationship. The Obligors acknowledge that the
Lenders have no fiduciary relationship with, or fiduciary duty to, any Obligor
or any Affiliate or Subsidiary thereof arising out of or in connection with
this Agreement or the Notes or the other Loan Documents, and the relationship
between each Lender and the Obligors is solely that of creditor and debtor.
This Agreement does not create a joint venture among the parties.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered as of the day and year first above written.
BORROWERS
VITRO PLAN, S.A. DE C.V.
By
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Name:
Title:
Address for Notices:
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▇▇▇▇▇▇ ▇▇. ▇▇▇ Col. ▇▇▇▇▇
del Campestre ▇▇▇▇▇
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VVP HOLDINGS CORP.
By
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Name:
Title:
Address for Notices:
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▇▇▇▇▇▇ ▇▇. ▇▇▇ Col. ▇▇▇▇▇
del Campestre ▇▇▇▇▇
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VVP SYNDICATION, INC.
By
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Name:
Title:
Address for Notices:
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▇▇▇▇▇▇ ▇▇. ▇▇▇ Col. ▇▇▇▇▇
del Campestre ▇▇▇▇▇
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GUARANTORS
AUTOCRISTALES DE ORIENTE, S.A. DE C.V.
By
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Name:
Title:
Address for Notices:
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del Campestre ▇▇▇▇▇
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VVP AUTO GLASS, INC.
By
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Name:
Title:
Address for Notices:
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VITROCAR, S.A. DE C.V.
By
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Name:
Title:
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▇▇▇▇▇▇▇▇▇ CENTROAMERICANOS, S.A.
By
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Name:
Title:
Address for Notices:
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▇▇▇▇▇▇▇▇▇ INASTILLABLES DE MEXICO, S.A. DE C.V.
By
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Name:
Title:
Address for Notices:
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DISTRIBUIDOR VIDRIERO LAN, S.A. DE C.V.
By
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Name:
Title:
Address for Notices:
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DISTRIBUIDORA NACIONAL ▇▇ ▇▇▇▇▇▇, ▇.▇. DE C.V.
By
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Name:
Title:
Address for Notices:
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DISTRIBUIDORA ▇▇ ▇▇▇▇▇▇ Y CRISTAL, S.A. DE C.V.
By
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Name:
Title:
Address for Notices:
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DISTRIBUIDORA ▇▇ ▇▇▇▇▇▇ DE MEXICO, S.A. DE C.V.
By
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Name:
Title:
Address for Notices:
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▇▇▇▇▇▇ ▇▇. ▇▇▇ Col. ▇▇▇▇▇
del Campestre ▇▇▇▇▇
▇▇▇▇▇▇, Nuevo ▇▇▇▇ Mexico
CP 66265 Attn. Director
General Juridico
81
▇▇▇▇▇▇ PLANO, S.A. DE C.V.
By
-----------------------------------
Name:
Title:
Address for Notices:
▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇. ▇▇▇ Col. ▇▇▇▇▇
del Campestre ▇▇▇▇▇
▇▇▇▇▇▇, Nuevo ▇▇▇▇ Mexico
CP 66265 Attn. Director
General Juridico
82
TECNOLOGIA VITRO ▇▇▇▇▇▇ Y ▇▇▇▇▇▇▇ LTD.
By
-----------------------------------
Name:
Title:
Address for Notices:
Vitro Europa S.A.
▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
With a copy to:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
83
▇▇▇▇▇▇ PLANO DE MEXICO, S.A. DE C.V.
By
-----------------------------------
Name:
Title:
Address for Notices:
▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇. ▇▇▇ Col. ▇▇▇▇▇
del Campestre ▇▇▇▇▇
▇▇▇▇▇▇, Nuevo ▇▇▇▇ Mexico
CP 66265 Attn. Director
General Juridico
84
VIDRIOS TEMPLADOS COLOMBIANOS, S.A.
By
-----------------------------------
Name:
Title:
Address for Notices:
▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇. ▇▇▇ Col. ▇▇▇▇▇
del Campestre ▇▇▇▇▇
▇▇▇▇▇▇, Nuevo ▇▇▇▇ Mexico
CP 66265 Attn. Director
General Juridico
85
VITRO AUTOMOTRIZ, S.A. DE C.V.
By
-----------------------------------
Name:
Title:
Address for Notices:
▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇. ▇▇▇ Col. ▇▇▇▇▇
del Campestre ▇▇▇▇▇
▇▇▇▇▇▇, Nuevo ▇▇▇▇ Mexico
CP 66265 Attn. Director
General Juridico
86
VITRO FLOTADO CUBIERTAS, S.A. DE C.V.
By
-----------------------------------
Name:
Title:
Address for Notices:
▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇. ▇▇▇ Col. ▇▇▇▇▇
del Campestre ▇▇▇▇▇
▇▇▇▇▇▇, Nuevo ▇▇▇▇ Mexico
CP 66265 Attn. Director
General Juridico
87
VITRO ▇▇▇▇▇▇ Y ▇▇▇▇▇▇▇, S.A. DE C.V.
By
-----------------------------------
Name:
Title:
Address for Notices:
▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇. ▇▇▇ Col. ▇▇▇▇▇
del Campestre ▇▇▇▇▇
▇▇▇▇▇▇, Nuevo ▇▇▇▇ Mexico
CP 66265 Attn. Director
General Juridico
88
VITRO AMERICA, INC.
By
-----------------------------------
Name:
Title:
Address for Notices:
▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇. ▇▇▇ Col. ▇▇▇▇▇
del Campestre ▇▇▇▇▇
▇▇▇▇▇▇, Nuevo ▇▇▇▇ Mexico
CP 66265 Attn. Director
General Juridico
89
SUPER SKY INTERNATIONAL, INC.
By
-----------------------------------
Name:
Title:
Address for Notices:
▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇. ▇▇▇ Col. ▇▇▇▇▇
del Campestre ▇▇▇▇▇
▇▇▇▇▇▇, Nuevo ▇▇▇▇ Mexico
CP 66265 Attn. Director
General Juridico
90
SUPER SKY PRODUCTS, INC.
By
-----------------------------------
Name:
Title:
Address for Notices:
▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇. ▇▇▇ Col. ▇▇▇▇▇
del Campestre ▇▇▇▇▇
▇▇▇▇▇▇, Nuevo ▇▇▇▇ Mexico
CP 66265 Attn. Director
General Juridico
91
SUPER SKY CONSTRUCTORS, INC.
By
-----------------------------------
Name:
Title:
Address for Notices:
▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇. ▇▇▇ Col. ▇▇▇▇▇
del Campestre ▇▇▇▇▇
▇▇▇▇▇▇, Nuevo ▇▇▇▇ Mexico
CP 66265 Attn. Director
General Juridico
92
IP VITRO ▇▇▇▇▇▇ Y CRISTAL LTD.
By
-----------------------------------
Name:
Title:
Address for Notices:
Vitro Europa S.A.
▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
With a copy to:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
93
ADMINISTRATIVE AGENT
CITIBANK, N.A.
as Administrative Agent
By
-----------------------------------
Name:
Title:
Address for Notices:
▇ ▇▇▇▇'▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
94
COLLATERAL AGENT
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Collateral Agent
By
-----------------------------------
Name:
Title:
Address for Notices:
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Tel. (▇▇▇) ▇▇▇-▇▇▇▇
Fax. (▇▇▇) ▇▇▇-▇▇▇▇
95
LENDERS
CITIBANK, N.A., NASSAU BAHAMAS BRANCH
By
-----------------------------------
Name:
Title:
96
COMERICA BANK
By
-----------------------------------
Name:
Title:
97
WACHOVIA BANK, NATIONAL ASSOCIATION
By
-----------------------------------
Name:
Title:
98
BANCO NACIONAL DE COMERCIO
EXTERIOR, S.N.C., ACTING THROUGH ITS
GRAND CAYMAN BRANCH
By
-----------------------------------
Name:
Title:
▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ E
PONTEVEDRA, CAIXANOVA MIAMI
AGENCY
By
-----------------------------------
Name:
Title:
By
-----------------------------------
Name:
Title:
▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇
By
-----------------------------------
Name:
Title: