Exhibit 2.5
AMENDMENT TO CREDIT AGREEMENT
THIS AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is entered into as of
April 9, 2003, by and among FEMSA Empaques, S.A. de C.V. (the "Borrower"), a
sociedad anonima de capital variable organized and existing under the laws of
Mexico, Fabricas Monterrey, S.A. de C.V. and Silices de Veracruz, S.A. de C.V.,
each a sociedad anonima de capital variable organized and existing under the
laws of Mexico, and such other Material Subsidiaries of the Borrower as may,
from time to time, pursuant to Section 5.01(j) of the Credit Agreement (as
defined below), join in the Credit Agreement as guarantors (each, a "Guarantor"
and collectively, the "Guarantors"), each of the financial institutions listed
on the signature pages hereof under the heading "2002 Lenders" (each, a "2002
Lender" and collectively, the "2002 Lenders"), the financial institution listed
on the signature pages hereof under the heading "2003 Lender" (the "2003
Lender"), and BBVA Bancomer, S.A., Institucion de Banca Multiple, Grupo
Financiero BBVA Bancomer, as administrative agent (the "Administrative Agent")
for the Lenders (as defined below). W I T N E S S E T H :
WHEREAS, pursuant to that certain Credit Agreement dated as of December 18,
2002 (the "Credit Agreement") by and among the Borrower, the Guarantors, the
2002 Lenders, the Administrative Agent, Export Development Canada as Syndication
Agent, Bankboston N.A. as Documentation Agent, BBVA Securities Inc. as Lead
Arranger and Export Development Canada and Bankboston N.A., as Arrangers, the
2002 Lenders provided the Borrower with a US$60,000,000 credit facility (the
"2002 Advances") (capitalized terms not otherwise defined herein shall have the
meanings set forth in the Credit Agreement); and
WHEREAS, the parties hereto wish to amend the Credit Agreement to provide
for an additional advance of up to US$30,000,000 to the Borrower from the 2003
Lender under, and pursuant to the terms of, the Credit Agreement and this
Amendment.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
obligations, promises and covenants herein contained, the receipt and adequacy
of which is hereby acknowledged by each of the parties hereto, it is hereby
agreed as follows:
Section 1. 2003 Advance.
1.1. Amounts and Terms of the Advance. The 2003 Lender severally agrees, on
the terms and conditions hereinafter set forth, on any Business Day on or prior
to April 24, 2003 (provided Borrower has provided a 2003 Notice of Borrowing
pursuant to Section 1.2(a) of this Amendment) (the "2003 Borrowing Date"), to
make a single advance (the "2003 Advance") to the Borrower, which 2003 Advance
shall not exceed for the 2003 Lender, in aggregate principal amount, the amount
set forth opposite the 2003 Lender's name on Annex I hereto under the caption
"Commitment" or, if the 2003 Lender has entered into one or more Assignments and
Acceptances after the date hereof, the amount set forth in the Register
maintained by the Administrative Agent pursuant to Section 9.07(c) of the Credit
Agreement (such amount being the 2003 Lender's Commitment for purposes of the
Credit Agreement). Amounts borrowed under this Section 1.1 and repaid or prepaid
may not be reborrowed.
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1.2. Making the 2003 Advance.
(a) The borrowing of the 2003 Advance (the "2003 Borrowing") shall be made
on notice (the "2003 Notice of Borrowing") given by the Borrower to the
Administrative Agent not later than 11:00 A.M. (New York City time) on the third
Business Day prior to the 2003 Borrowing Date. Immediately following receipt of
the 2003 Notice of Borrowing, the Administrative Agent shall give to the 2003
Lender notice thereof by facsimile transmission. The 2003 Notice of Borrowing
shall be sent by the Borrower requesting the 2003 Advance by facsimile
transmission, confirmed immediately in writing, in substantially the form of
Exhibit B to the Credit Agreement (except for the applicable interest period),
specifying therein (i) the requested 2003 Borrowing Date, (ii) the requested
aggregate principal amount of the 2003 Borrowing, and (iii) the payment
instructions for the 2003 Borrowing. The Administrative Agent shall promptly
notify the 2003 Lender of the applicable interest rate under Section 2.05 of the
Credit Agreement (as modified by Section 1.3(b)(iii) of this Amendment). The
2003 Lender shall, before 11:00 A.M. (New York City time) on the 2003 Borrowing
Date, make available for the account of its Lending Office to the Administrative
Agent at the Administrative Agent's Account, in same day funds, the 2003
Borrowing. After the Administrative Agent's receipt of such funds and upon
fulfillment of the applicable conditions set forth in Section 2 of this
Amendment, the Administrative Agent will make such funds available to the
Borrower by crediting the account of the Borrower, in immediately available
funds.
(b) Unless the Administrative Agent shall have received notice from the
2003 Lender prior to the 2003 Borrowing Date that the 2003 Lender will not make
available to the Administrative Agent the 2003 Borrowing, the Administrative
Agent may assume that the 2003 Lender has made the 2003 Borrowing available to
the Administrative Agent on the 2003 Borrowing Date in accordance with clause
(a) of this Section 1.2 and the Administrative Agent may, in reliance upon such
assumption, make available to the Borrower requesting the 2003 Borrowing on such
date a corresponding amount. If and to the extent that the 2003 Lender shall not
have so made the 2003 Borrowing available to the Administrative Agent, the 2003
Lender and the Borrower severally agree to repay to the Administrative Agent
forthwith on demand such corresponding amount together with interest thereon,
for each day from the date such amount is made available to the Borrower until
the date such amount is repaid to the Administrative Agent, at (i) in the case
of the Borrower, the interest rate applicable at such time under Section 2.05 of
the Credit Agreement (as modified by Section 1.3(b)(iii) of this Amendment) to
the 2003 Borrowing and (ii) in the case of the 2003 Lender, the Federal Funds
Rate. If the 2003 Lender shall repay to the Administrative Agent such
corresponding amount, such amount so repaid shall constitute the 2003 Lender's
Advance for purposes of this Amendment.
1.3 Incorporation of Terms and Provisions by Reference.
(a) From and after the effective date of this Amendment, the terms (i)
"Advances" in the Credit Agreement shall be deemed to include the 2003 Advance,
(ii) "Borrowing Date" in the Credit Agreement shall be deemed to include the
2003 Borrowing Date, (iii) "Lenders" in the Credit Agreement shall be deemed to
include the 2003 Lender, (iv) "Notice of Borrowing" in the Credit Agreement
shall be deemed to include the 2003 Notice of Borrowing and (v) "Notes" in the
Credit Agreement shall be deemed to include the 2003 Note (as defined below) and
the parties hereto agree that each provision of the Credit Agreement and each
other Loan Document is hereby amended as such and applicable in their entirety
to the 2003 Lender and the 2003 Advance, mutatis mutandis, as if the 2003 Lender
were party to the Credit Agreement and the 2003 Advance were initially borrowed
under the Credit Agreement (except as otherwise specified in this Amendment,
including, without limitation, the modifications set forth in Section 1.3(b) of
this Amendment).
(b) Notwithstanding the foregoing, the parties agree that:
(i) The Borrower's obligation to pay the principal of, and interest on, the
2003 Advance made by the 2003 Lender shall be evidenced by a promissory note
duly executed and delivered by the Borrower, with blanks appropriately completed
in conformity herewith, substantially in the form of Exhibit A hereto (the "2003
Note"). The 2003 Note issued to the 2003 Lender on the 2003 Borrowing Date shall
(1) be executed by the Borrower and "avalado" by each of the Guarantors, (2)
qualify as a ▇▇▇▇▇▇ under Mexican law, (3) be payable to the order of the 2003
Lender and be dated as of the 2003 Borrowing Date, (4) be in a stated principal
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amount equal to the 2003 Advance of the 2003 Lender made on such date, (5)
provide for repayment of principal as provided in Section 2.04(b) of the Credit
Agreement, and (6) bear interest as provided in Section 2.05 of the Credit
Agreement (as modified by Section 1.3(b)(iii) of this Amendment). The 2003
Lender agrees that, unless the principal of, or interest on, the 2003 Advance
shall have become due and payable (whether by acceleration or otherwise)
pursuant to this Amendment, it shall not (i) make demand for payment with
respect to its 2003 Note prior to its stated maturity or (ii) assign, convey,
negotiate or trade the 2003 Note except as permitted pursuant to Section 9.07 of
the Credit Agreement.
(ii) The Borrower shall repay to the Administrative Agent for the account
of the 2003 Lender, and there shall become due and payable on each of the dates
listed below, an aggregate principal amount of the 2003 Advance equal to the
percentage set forth opposite such date of the initial aggregate principal
amount of the 2003 Advance made on the 2003 Borrowing Date:
Amount of
Repayment Date Scheduled Repayment
--------------- -------------------
December 23, 2003 10%
June 23, 2004 20%
December 23, 2004 20%
June 23, 2005 25%
December 23, 2005 25%
(iii) The duration of the Interest Periods for the 2003 Advance shall be
(A) initially, the period commencing on the 2003 Borrowing Date and ending on
(but excluding) April 24, 2003, and (B) thereafter, the same period as that of
the Interest Period selected by the Borrower for the 2002 Advances, pursuant to
the Credit Agreement.
1.4 Use of Proceeds. Notwithstanding Section 2.13 of the Credit Agreement,
the proceeds of the 2003 Advance shall be available (and the Borrower agrees
that it shall use such proceeds) to refinance existing Debt of the Borrower and
to pay transaction fees and expenses incurred in connection with this Amendment.
Section 2. Conditions Precedent to the 2003 Borrowing. The obligation of
the 2003 Lender to make its 2003 Advance is subject to satisfaction or waiver of
the conditions precedent set forth below on or before the 2003 Borrowing Date
(each document received by the Administrative Agent and described below shall be
dated the 2003 Borrowing Date, unless otherwise specified, and in form and
substance reasonably satisfactory to the ▇▇▇▇ ▇▇▇▇▇▇).
(a) The Administrative Agent shall have received a 2003 Notice of Borrowing
with respect to the 2003 Advance meeting the requirements of Section 1.2(a) of
this Amendment.
(b) The Administrative Agent shall have received the duly executed 2003
Note for the account of the 2003 Lender meeting the requirements of Section
1.3(b)(i) of this Amendment and each of the Guarantors shall have placed its
guaranty ("aval") upon the 2003 Note.
(c) The Administrative Agent shall have received (i) a certificate of each
of the Credit Parties, substantially in the form of Exhibit C to the Credit
Agreement, signed by a Responsible Officer of such Credit Party and (ii) a
certificate of the Secretary or any Assistant Secretary of such Credit Party,
substantially in the form of Exhibit D to the Credit Agreement and stating that
there has been no change to its constitutional documents since the date the 2002
Advances were made, together with certified copies of (A) the resolutions of the
Board of Directors of such Credit Party approving such Credit Party's execution,
delivery, and performance of this Amendment and the transactions contemplated
hereby and (B) all documents evidencing other necessary corporate action and
consents or approvals of any Governmental Authority, if any, with respect to
this Amendment and the transactions contemplated hereby.
(d) The Administrative Agent shall have received (i) an opinion of Cleary,
Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, special New York counsel for the Credit Parties,
substantially in the form of Exhibit E-1 to the Credit Agreement and as to such
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other matters as the 2003 Lender through the Administrative Agent may reasonably
request and (ii) an opinion of White & Case LLP, special New York counsel for
the 2003 Lender and the Administrative Agent, in form reasonable to the
Administrative Agent, regarding this Amendment and as to such other matters as
the 2003 Lender through the Administrative Agent may reasonably request.
(e) The Administrative Agent shall have received an opinion of ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇ Vessi, Mexican counsel to the Credit Parties, substantially in the form
of Exhibit E-2 to the Credit Agreement and as to such other matters as the 2003
Lender through the Administrative Agent may reasonably request.
(f) As of the 2003 Borrowing Date (and after giving effect thereto) (i)
there shall exist no Default or Event of Default and (ii) all representations
and warranties contained in Article IV of the Credit Agreement (except for those
under Sections 4.05, 4.15 and 4.16 thereof) shall be true and correct in all
material respects as though made on and as of the 2003 Borrowing Date.
(g) The Borrower shall have paid all accrued fees and invoiced expenses of
the Administrative Agent and reimbursed the Administrative Agent for all
reasonable out-of-pocket expenses incurred in accordance with Section 9.04(a)(i)
of the Credit Agreement.
(h) Each of the Borrower and the Subordinated Creditor shall have executed
and delivered to the Administrative Agent an amendment to the Subordination
Agreement substantially in the form of Exhibit B hereto, providing for the
treatment of the 2003 Advance in the same manner as the 2002 Advances.
(i) There shall not have occurred any material adverse change in any
country in which any Credit Party or any of its respective Subsidiaries operate,
or in the international loan syndication or financial or capital market
conditions generally from those in effect on the date hereof.
(j) Since December 31, 2002, there shall not have occurred any material
adverse change in the condition (financial or otherwise), operations, assets,
liabilities or prospects of the Borrower or the Borrower and its Subsidiaries
taken as a whole.
(k) No litigation, action, suit, investigation, claim or proceeding by any
Governmental Authority or any Person shall be pending or threatened with respect
to (i) this Amendment, (ii) the Credit Agreement or any other Loan Document,
(iii) the transactions contemplated hereby or thereby or (iv) any agreement to
which any Credit Party or any of its respective Subsidiaries is a party which
could reasonably be expected to have a Material Adverse Effect.
(l) All Governmental Approvals required in connection with (i) the
execution, delivery and performance of this Amendment and (ii) the legality,
validity, binding effect and enforceability of this Amendment and the 2003 Note
shall have been obtained.
(m) The Administrative Agent shall have received such other certificates,
documents and opinions of counsel as the 2003 Lender through the Administrative
Agent may reasonably request.
(n) The 2003 Note, certificates, legal opinions and other documents and
papers referred to in this Section 2, unless otherwise specified, shall be
delivered to the Administrative Agent for the account of the 2003 Lender.
(o) Notwithstanding Section 9.01 of the Credit Agreement, with respect to
any waiver of any condition set forth in this Section 2, Required Lenders shall
be calculated solely with respect to the 2003 Advance.
Section 3. Miscellaneous.
3.1 Execution and Effectiveness of this Amendment. Upon execution, this
Amendment shall be construed as a first amendment to the Credit Agreement, and,
as provided in the Credit Agreement, this Amendment forms a part thereof. This
Amendment shall be effective as of the date hereof upon the execution and
delivery of this Amendment by the Borrower, the Guarantors, the Administrative
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Agent, the Required Lenders determined with respect to the 2002 Advances, and
the 2003 Lender.
3.2 Representations and Warranties. The Borrower hereby represents and
warrants to the 2003 Lender that (a) all consents, approvals and authorizations
necessary for such party's execution, delivery and performance of this Amendment
have been obtained or will be obtained as of the 2003 Borrowing Date, (b) this
Amendment and the 2003 Note have been, or will be as of the 2003 Borrowing Date,
duly executed and delivered by the Borrower and the Guarantors and constitute a
legal, valid and binding obligation of the Borrower and the Guarantors,
enforceable against the Borrower and the Guarantors in accordance with their
respective terms, (c) each of the representations and warranties set forth in
Article IV of the Credit Agreement are true and correct in all material respects
on and as of the date hereof and on and as of the 2003 Borrowing Date, as though
made on and as of the date hereof and the 2003 Borrowing Date (except for those
under Sections 4.05, 4.15 and 4.16 thereof) and (d) no Default or Event of
Default exists or would result from the disbursement of the 2003 Advance.
The 2003 Lender represents and warrants to the Borrower that on and as of
the date hereof the 2003 Lender is a Mexican development banking institution
(institucion de banca de desarrollo). The Borrower shall not be required to pay
additional amounts or indemnify the 2003 Lender under paragraphs (a) or (b) of
Section 2.10 of the Credit Agreement for any Taxes to the extent that such taxes
would not have been imposed but for the untruth on the date hereof of the
foregoing representation.
3.3 Waiver. This Amendment is made in amendment and modification of, but
not extinguishment of, the obligations set forth in the Credit Agreement and the
other Loan Documents and, except as specifically modified pursuant to the terms
of this Amendment, the terms and conditions of the Credit Agreement and the
other Loan Documents remain in full force and effect. Except as specifically set
forth herein, nothing herein shall limit in any way the rights and remedies of
the Lenders or the Administrative Agent under the Credit Agreement and the other
Loan Documents. The execution, delivery and performance by the Lenders, the
Administrative Agent and the other parties hereto of this Amendment shall not
constitute a waiver, forbearance or other indulgence with respect to any Default
or Event of Default now existing or hereafter arising.
3.4 Counterparts. This Amendment may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument.
3.5 Severability. Any provision of this Amendment held to be invalid,
illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity, illegality or unenforceability
without affecting the validity, legality and enforceability of the remaining
provisions hereof; and the invalidity of a particular provision in a particular
jurisdiction shall not invalidate such provisions in any other jurisdiction.
3.6 Governing Law. This Amendment shall be governed by, and construed in
accordance with, the laws of the State of New York.
3.7 Headings. Headings herein are for convenience only and shall not be
relied upon in interpreting or enforcing this Amendment.
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IN WITNESS WHEREOF, the parties hereto have caused their duly authorized
officers to execute and deliver this Amendment to the Credit Agreement as of the
date first above written.
Address:
General ▇▇▇▇▇ 601 Poniente, FEMSA EMPAQUES, S.A. DE C.V.,
Colonia Bella as Borrower
Vista 1er Piso
Monterrey, N.L. Mexico,
C.P. 64410
Attention:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇/▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ By: ______________________________
Telephone: ▇▇▇-▇▇-▇▇▇-▇▇▇-▇▇▇▇ Name:
/ 011-52-818-328-6635 Title:
Facsimile: 011-52-818-328-6893
By: ______________________________
Name:
Title:
S-1
General ▇▇▇▇▇ 601 Poniente, Colonia
Bella Vista 1er Piso FABRICAS MONTERREY, ▇.▇. ▇▇ ▇.▇.,
▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇▇,
▇.▇. ▇▇▇▇▇ as Guarantor
Attention:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇/▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇-▇▇▇-▇▇▇-▇▇▇▇
/ ▇▇▇-▇▇-▇▇▇-▇▇▇-▇▇▇▇
Facsimile: 011-52-818-328-6893 By: ______________________________
Name:
Title:
By: ______________________________
Name:
Title:
General ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ SILICES DE VERACRUZ, S.A. DE C.V.,
Monterrey, N.L. Mexico, C.P. 64410 as Guarantor
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
/▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇-▇▇▇-▇▇▇-▇▇▇▇
/ ▇▇▇-▇▇-▇▇▇-▇▇▇-▇▇▇▇ By: ______________________________
Facsimile: 011-52-818-328-6893 Name:
Title:
By: ______________________________
Name:
Title:
S-2
▇▇▇▇▇▇ Urales #620, 3er Piso BBVA BANCOMER, S.A., INSTITUCION DE
Colonia Lomas de Chapultepec BANCA MULTIPLE,
GRUPO FINANCIERO BBVA BANCOMER,
Mexico D.F. 11000 as Administrative Agent
Attention: ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇-▇▇▇-▇▇▇-▇▇▇▇
Facsimile: 011-52-555-201-2054 By: ______________________________
Name:
Title:
By: ______________________________
Name:
Title:
S-3
2002 LENDERS
▇▇▇▇▇▇ Urales #620, 3er Piso BBVA BANCOMER, S.A., INSTITUCION DE BANCA
MULTIPLE,
Colonia Lomas de Chapultepec GRUPO FINANCIERO BBVA BANCOMER,
Mexico D.F. 11000 as 2002 Lender
Attention: ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇-▇▇▇-▇▇▇-▇▇▇▇
Facsimile: 011-52-555-201-2054 By: ______________________________
Name:
Title:
By: ______________________________
Name:
Title:
S-4
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇.▇.,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ as ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
/▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ By: ______________________________
Name:
Title:
By: ______________________________
Name:
Title:
S-5
▇▇▇ ▇'▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ as 2002 Lender
Attention: Denis L'Heureux
/▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇ ▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇ ▇▇▇▇ By: ______________________________
Name:
Title:
By: ______________________________
Name:
Title:
S-6
2003 LENDER
Camino A Santa ▇▇▇▇▇▇ No. 1679 BANCO NACIONAL DE COMERCIO EXTERIOR,
S.N.C. (Acting
Col. Jardines Del Pedregal, through its Grand Cayman Branch),
Mexico, D.F. C.P. 01900 as 2003 Lender
Attention: Lic. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
Lic. ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇▇-▇▇▇▇-▇▇▇▇ / 2112 By: ______________________________
Fax: (▇▇▇) ▇▇▇▇-▇▇▇▇-▇▇▇▇ Name:
Title:
By: ______________________________
Name:
Title:
S-7
Annex I
COMMITMENT
2003 Lender Advance Amount
Banco Nacional de Comercio Exterior, S.N.C. (Acting through its Grand
Cayman Branch) $30,000,000
============
Annex I-1