U.S.$3,000,000,000 TERM LOAN AGREEMENT dated as of November 13, 2006 among CEMEX, S.A.B. de C.V., as Borrower and CEMEX MÉXICO, S.A. de C.V., as Guarantor and EMPRESAS TOLTECA de MÉXICO, S.A. de C.V., as Guarantor and ING CAPITAL LLC, as...
Exhibit
(b)(1)(K)
U.S.$3,000,000,000
dated
as
of November 13, 2006
among
CEMEX,
S.A.B. de C.V.,
as
Borrower
and
CEMEX
MÉXICO, S.A. de C.V.,
as
Guarantor
and
EMPRESAS
TOLTECA de MÉXICO, S.A. de C.V.,
as
Guarantor
and
ING
CAPITAL LLC,
as
Administrative Agent
and
BANCO
SANTANDER, S.A., INSTITUCIÓN DE BANCA MÚLTIPLE GRUPO FINANCIERO SANTANDER,
SOCIÉTÉ
GÉNÉRALE, S.A.,
BNP
PARIBAS, and
CALYON,
NEW YORK BRANCH,
as
Joint
Bookrunners
and
ING
BANK
N.V. (ACTING
THROUGH ITS CURAÇAO
BRANCH)
BARCLAYS
BANK PLC
BANCO
SANTANDER, S.A., INSTITUCIÓN DE BANCA MÚLTIPLE GRUPO FINANCIERO SANTANDER,
SOCIÉTÉ
GÉNÉRALE, S.A.,
BNP
PARIBAS, and
CALYON,
NEW YORK BRANCH,
as
Joint
Lead Arrangers and Lenders
-i-
-ii-
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TABLE
OF CONTENTS
continued
SCHEDULES
Schedule
1.01(a) --
Commitments
Schedule
1.01(b) -- Commitments
following an Amendment Event
Schedule
1.01(c) -- Lending
Offices
Schedule
5.06 --
Litigation
Schedule
5.10
--
Subsidiaries
Schedule
6.05 -- Litigation
Schedule
8.01(e) --
Liens
EXHIBITS
Exhibit
A
--
Form
of
Note
Exhibit
B
--
Notice
of
Borrowing
Exhibit
C
--
Form
of
Notice of Extension
Exhibit
D
--
Form
of
Assignment and Assumption Agreement
Exhibit
E --
Form
of
Opinion of Special New York Counsel to the Borrower and the
Guarantors
Exhibit
F
--
Form
of
Opinion of Mexican Counsel to the Borrower and the Guarantors
Exhibit
G-1
--
Amendment
and Wavier Agreement to the Cemex U.S.$1.2 billion Credit Facility
Exhibit
G-2
--
Amendment
and Wavier Agreement to the Cemex U.S.$700 million Credit Facility
Exhibit
G-3
--
Amendment
and Wavier Agreement to the New Sunward Credit Facility
THIS
TERM
LOAN AGREEMENT, dated
as of November 13, 2006 is entered into among CEMEX,
S.A.B. de C.V.,
a
corporation (sociedad
anónima bursátil de capital variable)
organized and existing pursuant to the laws of the United Mexican States (the
“Borrower”),
CEMEX
MÉXICO, S.A. de C.V.,
a
corporation (sociedad
anónima de capital variable)
organized and existing pursuant to the laws of the United Mexican States,
EMPRESAS
TOLTECA DE MÉXICO, S.A. de C.V.,
a
corporation (sociedad
anónima de capital variable)
organized and existing pursuant to the laws of the United Mexican States (each
a
“Guarantor”
and
together, the “Guarantors”),
ING
CAPITAL LLC,
as Administrative Agent, ING
BANK
N.V. (ACTING
THROUGH ITS CURAÇAO BRANCH), BARCLAYS
BANK PLC,
BANCO
SANTANDER, S.A., INSTITUCIÓN DE BANCA MÚLTIPLE GRUPO FINANCIERO SANTANDER, BNP
PARIBAS,
SOCIÉTÉ
GÉNÉRALE, S.A. and
CALYON, NEW YORK BRANCH,
as
Lenders.
RECITALS
WHEREAS,
the Borrower desires that the Lenders extend a multi-draw back-stop term loan
facility to the Borrower to refinance the Existing Credit Agreements (as defined
below), to fund the repayment of certain indebtedness of the Borrower and or
its
Subsidiaries, for general corporate purposes of the Borrower and its
Subsidiaries and/or to finance a Tender Offer (as defined below) for the shares
of ▇▇▇▇▇▇ Group Limited, a public limited company organized under the laws
at
the New South Wales, Australia (the “Target”);
and
WHEREAS,
the Guarantors are willing to guaranty all of the Obligations of the
Borrower.
NOW,
THEREFORE,
each of
the Parties hereto hereby agrees as follows:
DEFINITIONS
1.01
Certain
Definitions.
As used
in this Agreement, the following terms shall have the following
meanings:
“Acquired
Subsidiary”
means
any Subsidiary acquired by the Borrower or any other Subsidiary after the date
hereof in an Acquisition and any Subsidiaries of such Acquired Subsidiary on
the
date of such Acquisition.
“Acquiring
Subsidiary”
means
any Subsidiary of the Borrower or any one of its Subsidiaries solely for the
purpose of participating as the acquiring party in any Acquisition, and any
Subsidiaries of such Acquiring Subsidiary acquired in such
Acquisition.
“Acquisition”
means
any merger, consolidation, acquisition or lease of assets, acquisition of
securities or business combination or acquisition, or any two or more of such
transactions, if upon the completion of such transaction or transactions, the
Borrower or any Subsidiary thereof has acquired an interest in any Person who
is
deemed to be a Subsidiary under this Agreement and was not a Subsidiary prior
thereto.
“Adjusted
Consolidated Net Tangible Assets”
means,
with respect to any Person, the total assets of such Person and its Subsidiaries
(less applicable depreciation, amortization and other valuation reserves),
including any write-ups or restatements required under Mexican GAAP (other
than
with respect to items referred to in clause (ii) below), after deducting
therefrom (i) all current liabilities of such Person and its Subsidiaries
(excluding the current portion of long-term debt) and (ii) all goodwill, trade
names, trademarks, licenses, concessions, patents, unamortized debt discount
and
expense and other intangibles, all as determined on a consolidated basis in
accordance with Mexican GAAP.
“Administrative
Agent”
means
ING Capital LLC, in its capacity as administrative agent for the Lenders, and
its successors in such capacity.
“Administrative
Agent’s Payment Office”
means
the Administrative Agent’s address for payments set forth on the signature pages
hereof or such other address as the Administrative Agent may from time to time
specify to the other Parties hereto pursuant to the terms of this
Agreement.
“Affected
Lender”
has
the
meaning specified in Section
3.09(a).
“Affiliate”
means,
in relation to any Person, a Subsidiary of that Person or a Holding Company
of
that Person or any other Subsidiary of that Holding Company.
“Aggregate
Committed Amount”
means
prior to an Amendment Event, U.S.$3,000,000,000, and following the occurrence
of
an Amendment Event, U.S.$1,000,000,000, in each case subject to voluntary
reduction pursuant to Section
3.01
hereof.
“Aggregate
Exposure”
means
the aggregate principal amount of all Loans outstanding.
“Agreement”
means
this Term Loan Agreement, as the same may hereafter be amended, supplemented
or
otherwise modified from time to time.
“Amendment
and Waiver Agreements”
means
the (1) amendment and waiver agreement among the Borrower, the Guarantors and
Barclays Bank PLC, New York Branch, as administrative agent for the lenders
from
time to time party to the Cemex U.S.$1.2 billion Credit Facility (as
amended, supplemented or otherwise modified from time to time) substantially
in
the form of Exhibit
G-1
hereto,
(2) amendment and waiver agreement among the Borrower, the Guarantors and ING
Capital LLC, as administrative agent for the lenders from time to time party
to
the Cemex U.S.$700 million Credit Facility (as amended, supplemented or
otherwise modified from time to time) substantially in the form of Exhibit
G-2
hereto
and (3) the deed of waiver and second amendment, among New Sunward Holding
B.V., the
Borrower, the Guarantors and Citibank, N.A., as agent for the lenders from
time
to time party to the New Sunward Credit Facility (as amended, supplemented
or
otherwise modified from time to time) substantially in the form of Exhibit
G-3
hereto.
“Amendment
Event”
means
the date on which the Amendment and Waiver Agreements are executed and in full
force and effect.
“Applicable
Margin”
means,
in relation to any loan, 0.40% per annum.
“Assignee”
has
the
meaning specified in Section
13.06(c).
“Assignment
and Assumption Agreement”
means
an assignment and assumption agreement in substantially the form of Exhibit
D.
“Available
Commitments”
means
a
Lender's Commitment under this Agreement minus:
(a) the
Base
Currency Amount of its participation in any outstanding Borrowing under this
Agreement; and
(b) in
relation to any proposed Borrowing, the Base Currency Amount of its
participation in any other Borrowing that are due to be made under this
Agreement on or before the proposed Borrowing date.
“Base
Rate”
means,
for any day, the higher of (a) the Prime Rate or (b) the Federal Funds Rate
plus
1/2% per annum, in each case as in effect for such day. Any change in the Prime
Rate announced by the Reference Banks shall take effect at the opening of
business on the day specified in the public announcement of such
change.
“Bidco”
means
CEMEX Australia Pty Limited (ACN 122 401 405), a proprietary limited company
organized under the laws at Victoria, Australia.
“Bookrunners”
or
“Joint
Bookrunners”
means
Banco Santander, S.A., Institución de Banca Múltiple Grupo Financiero Santander,
Société Générale, S.A., BNP Paribas, and Calyon, New York Branch, in their
capacity as joint bookrunners hereunder, and each of their successors in such
capacity.
“Borrower”
has
the
meaning specified in the preamble hereto.
“Borrowing”
means
the aggregate amount of Loans hereunder to be made to the Borrower pursuant
to
Article
II
on a
particular date by each of the Lenders.
“Business
Day”
means
any day other than a Saturday or Sunday or other day on which commercial banks
in New York City, Mexico or London are authorized or required by law to
close.
“Capital
Lease”
means,
as to any Person, the obligations of such Person to pay rent or other amounts
under any lease of (or other arrangement conveying the right to use) real or
personal property, or a combination thereof, which obligations are required
to
be classified and accounted for as capital leases on a balance sheet of such
Person under Mexican GAAP and, for the purposes of this Agreement, the amount
of
such obligations at any time shall be the capitalized amount thereof at such
time determined in accordance with Mexican GAAP.
“Capital
Stock”
means
any and all shares, interests, participations or other equivalents (however
designated) of capital stock of a corporation, any and all equivalent ownership
interests in a Person (other than a corporation) and any and all warrants,
rights or options to purchase any of the foregoing.
“Cemex
U.S.$700 million Credit Facility”
means
the U.S.$700,000,000 amended and restated credit agreement, dated as of
June 6, 2005, among the Borrower, the Guarantors, ING Capital LLC, as
administrative agent, Barclays Bank PLC and Citigroup Global Markets
Inc.
“Cemex
U.S.$1.2 billion Credit Facility”
means
the U.S.$1,200,000,000 credit agreement, dated as of May 31, 2005, among the
Borrower, the Guarantors, Barclays Bank PLC, as administrative agent, and
Citigroup Global Markets Inc.
“Clean-up
Period”
has
the
meaning set forth in Section
10.05.
“Commitment”
means,
with respect to each Lender, prior to an Amendment Event, the aggregate
principal amount set forth opposite the name of such Lender in Schedule
1.01(a)
or in
any Assignment and Assumption Agreement in accordance with Section
13.06(c)
hereof
and, following an Amendment Event, the amount set forth on Schedule
1.01(b)
or in
any Assignment and Assumption Agreement in accordance with Section
13.06(c)
hereof,
in each case, as such amount may be reduced or increased from time to time
in
accordance with the provisions hereof.
“Commitment
Percentage”
means,
with respect to each Lender, a fraction (expressed as a decimal) the numerator
of which is the Commitment of such Lender at such time and the denominator
of
which is the Aggregate Committed Amount at such time. The initial Commitment
Percentages are set out on Schedule
1.01(a).
“Commitment
Period”
means
the period from and including the date hereof to but excluding the earlier
of
(i) the Termination Date, or (ii) the date on which the Commitments terminate
in
accordance with the provisions of this Agreement.
“Confidential
Information”
means
information that the Borrower or a Guarantor furnishes to the Administrative
Agent, the Joint Bookrunners or any Lender in a writing designated as
confidential, but does not include any such information that is or becomes
generally available to the public or that is or becomes available to the
Administrative Agent or the Joint Bookrunners or such Lender from a source
other
than the Borrower or a Guarantor that is not, to the best of the Administrative
Agent’s, the Joint Bookrunners’ or such Lender’s knowledge, acting in violation
of a confidentiality agreement with the Borrower or Guarantor or any other
Person.
“Consolidated”
refers
to the consolidation of accounts of a Person and its Subsidiaries (without
duplication) in accordance with Mexican GAAP.
“Contractual
Obligation”
means,
as to any Person, any provision of any security issued by such Person or of
any
indenture, mortgage, deed of trust, loan agreement or other agreement to which
such Person is a party or by which it or any of its property or assets is
bound.
“Debt”
of
any
Person means, without duplication, (i) all obligations of such Person for
borrowed money, (ii) all obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments, (iii) all obligations of such
Person to pay the deferred purchase price of property or services, except trade
accounts payable arising in the ordinary course of business, (iv) all
obligations of such Person as lessee under Capital Leases, (v) all Debt of
others secured by a Lien on any asset of such Person, up to the value of such
asset, as recorded in such Person’s most recent balance sheet, (vi) all
obligations of such Person with respect to product invoices incurred in
connection with export financing, and (vii) all obligations of such Person
under
repurchase agreements for the stock issued by such Person or another Person.
For
the avoidance of doubt, Debt does not include Derivatives.
“Default”
means
any condition, event or circumstance which, with the giving of notice or lapse
of time or both, would, unless cured or waived, become an Event of
Default.
“Defaulting
Lender”
has
the
meaning specified in Section
2.01(d).
“Derivatives”
means
any type of derivative obligations, including but not limited to equity
forwards, capital ▇▇▇▇▇▇, cross-currency swaps, currency forwards, credit
default swaps, interest rate swaps and swaptions.
“Disbursement
Date”
means,
with respect to any Loan, the date on which such Loan is made by the
Lenders.
“Disposition”
means,
with respect to any property, any sale, lease, sale and leaseback, assignment,
conveyance, transfer or other disposition thereof. The terms “Dispose”
and
“Disposed
of”
shall
have correlative meanings.
“Dollars”,
“$”
and
“U.S.$”
each
means the lawful currency of the United States.
“Effective
Date”
has
the
meaning specified in Section
4.01.
“Environmental
Action”
means
any audit procedure, action, suit, demand, demand letter, claim, notice of
non-compliance or violation, notice of liability or potential liability,
investigation, proceeding, consent order or consent agreement relating in any
way to any Environmental Law, Environmental Permit or Hazardous Materials or
arising from alleged injury or threat of injury to health, safety or the
environment, including (a) by any Governmental Authority for enforcement,
cleanup, removal, response, remedial or other actions or damages and (b) by
any
Governmental Authority or any third party for damages, contribution,
indemnification, cost recovery, compensation or injunctive relief.
“Environmental
Law”
means
any federal, state, local or foreign statute, law, ordinance, rule, regulation,
technical standard (▇▇▇▇▇
técnica or
▇▇▇▇▇ oficial Mexicana),
code,
order, judgment, decree or judicial agency interpretation, policy or guidance
relating to pollution or protection of the environment, health, safety or
natural resources, including those relating to the use, handling,
transportation, treatment, storage, disposal, release or discharge of Hazardous
Materials.
“Environmental
Permit”
means
any permit, approval, identification number, license or other authorization
required under any Environmental Law.
“ERISA”
means
the Employee Retirement Income Security Act of 1974, as amended, and any
successor statute thereto, as interpreted by the rules and regulations
thereunder, all as the same may be in effect from time to time. References
to
sections of ERISA shall be construed also to refer to any successor
sections.
“ERISA
Affiliate”
means
an entity, whether or not incorporated, that is under common control with the
Borrower within the meaning of Section 4001(a)(14) of ERISA, or is a member
of a
group that includes the Borrower and that is treated as a single employer under
Sections 414(b) or (c) of the Code.
“Event
of Default”
has
the
meaning specified in Section
10.01.
“Existing
Credit Agreements”
means
the (A) Cemex U.S.$1.2 billion Credit Facility, (B) Cemex
U.S.$700,000,000 Credit Facility and (C) New Sunward Credit
Facility.
“Facility
Fees”
has
the
meaning specified in Section
3.02.
“Federal
Funds Rate”
means,
for any relevant day, the overnight Federal funds rate as published for such
day
in the Federal Reserve Statistical Release H.15 (519) or any successor
publication, or, if such rate is not published for any day, the rate for such
day will be the rate set forth in the daily statistical release designated
as
the Composite 3:30 p.m. Quotation for U.S. Government Securities, or any
successor publication, published by the Federal Reserve Bank of New York
(including any such successor, the “Composite
3:30 p.m. Quotation”
for
such day under the caption “Federal
Funds Effective Rate”).
If on
any relevant day the appropriate rate for such previous day is not yet published
in either H.15 (519) or the Composite 3:30 p.m. Quotations, the rate for such
day will be the arithmetic mean as determined by the Administrative Agent of
the
rates for the last transaction in overnight Federal funds arranged prior to
9:00
a.m. (New York City time) on that day by each of three leading brokers of
recognized standing of Federal funds transactions in New York City selected
by
the Administrative Agent.
“Federal
Reserve Board”
means
the Board of Governors of the Federal Reserve System of the United
States.
“Fee
Letter”
means
each of the fee letters entered into by the Borrower and each of the Lenders
during November of 2006, as amended from time to time.
“Foreign
Financial Institution”
means
an institution registered as a foreign financial institution with the Ministry
of Finance in the Mexican Banking and Financial Institutions, Pensions,
Retirement and Foreign Investment Funds Registry for purposes of Article 195,
Section I of the Mexican Income Tax Law.
“Funding
Account”
has
the
meaning specified in Section
2.01(d).
“Funding
Losses”
has
the
meaning specified in Section
3.06.
“Governmental
Authority”
means
any branch of power or government or any state, department or other political
subdivision thereof, or any governmental body, agency, authority (including
any
central bank or taxing or environmental authority), any entity or
instrumentality (including any court or tribunal) exercising executive,
legislative, judicial, regulatory, administrative or investigative functions
of
or pertaining to government.
“Guarantor”
has
the
meaning specified in the preamble hereto.
“Hazardous
Materials”
means
(a) radioactive materials, asbestos-containing materials, polychlorinated
biphenyls, radon gas and (b) any other chemicals, materials or substances
designated, classified or regulated as hazardous or toxic or as a pollutant
or
contaminant under any applicable Environmental Law.
“Indemnified
Party”
has
the
meaning specified in Section
13.05.
“Interest
Payment Date”
means,
with respect to any Loan, the last day of each Interest Period for such Loan,
the date of repayment of principal of such Loan and the Termination Date. If
an
Interest Payment Date falls on a date that is not a Business Day, such Interest
Payment Date shall be deemed to be the next succeeding Business Day, except
that
in the event the next succeeding Business Day falls in the next succeeding
calendar month, then on the immediately preceding Business Day.
“Interest
Period”
means,
with respect to any Loan, the period (i) commencing (A) on the date on which
a
Borrowing is made or (B) in the case of the continuation of Loans for a further
Interest Period, on the last day of the immediately preceding Interest Period
and (ii) ending 30, 60, 90 or 180 days thereafter, as stated by the Borrower
in
the applicable Notice of Borrowing or Notice of Extension; provided,
however,
that:
(1) any
Interest Period which would otherwise end on a day which is not a Business
Day
shall, subject to paragraph (3) below, be extended to the next succeeding
Business Day unless such Business Day falls in another calendar month, in which
case such Interest Period shall end on the immediately preceding Business
Day;
(2) any
Interest Period which begins on the last Business Day of a calendar month (or
on
a day for which there is no numerically corresponding day in the calendar month
at the end of such Interest Period) shall, subject to paragraph (3) below,
end
on the last Business Day of a calendar month;
(3) any
Interest Period which would otherwise end after the last day of the Commitment
Period shall end on the last day of the Commitment Period; and
(4) any
Interest Period which would otherwise end after the Termination Date shall
end
on the Termination Date.
“IASB”
means
the International Accounting Standards Board.
“International
Accounting Standards”
means
the accounting standards approved by the IASB
from
time to time, to the extent applicable to the relevant financial
statements.
“Law”
means
any
and all foreign, federal, state or local law such as (i) statutes, laws,
ordinances, orders, codes, rules, regulations, standards or other requirements
enacted, promulgated, issued or entered by, or interpretations of any
Governmental Authority, (ii) final and non-appealable judgments and (iii)
contracts with any Governmental Authority relating to compliance with matters
described in (i) or (ii) above.
“Lender”
means
each financial institution designated as such on the signature pages hereof
and
each Substitute Lender.
“Lending
Office”
means,
with respect to any Lender, (a) the office or offices of such Lender specified
as its “Lending
Office”
or
“Lending
Offices”
in
Schedule
1.01(c)
such
other office or offices of such Lender as it may designate as its Lending Office
by notice to the Borrower and the Administrative Agent.
“LIBOR”
means,
in relation to any Loan:
|
(a)
|
the
applicable Screen Rate; or
|
|
(b)
|
(if
no Screen Rate is available for Dollars for the Interest Period of
that
Loan) the arithmetic mean of the rates (rounded upwards to four decimal
places) as supplied to the Administrative Agent at its request quoted
by
the Reference Banks to leading banks in the London interbank
market,
|
as
of
approximately 11:00 a.m. (New York City time) on the Quotation Day for the
offering of deposits in Dollars and for a period comparable to the Interest
Period for that Loan.
“Lien”
means,
with respect to any asset, any mortgage, lien, pledge, charge, security interest
or encumbrance of any kind in respect of such asset. The Borrower or any
Subsidiary of the Borrower shall be deemed to own, subject to a Lien, any asset
that it has acquired or holds subject to the interest of a vendor or lessor
under any conditional sale agreement, Capital Lease or other title retention
lease relating to such asset, or any account receivable transferred by it with
recourse (including any such transfer subject to a holdback or similar
arrangement that effectively imposes the risk of collectability on the
transferor).
“Loans”
has
the
meaning specified in Section
2.01(a)
hereof.
“Margin
Stock”
means
any “margin stock” as defined in Regulation U.
“Material
Adverse Effect”
means
a
material adverse effect on (a) the business, condition (financial or otherwise),
operations, performance, properties or prospects of the Borrower and its
Subsidiaries taken as a whole, (b) the rights or remedies of the Administrative
Agent or any Lender under this Agreement or any of the Notes or (c) the ability
of the Borrower and/or the Guarantors to perform their payment obligations
under
the Transaction Documents.
“Material
Debt”
means
Debt (other than the Loans) of the Borrower and/or one or more of its
Subsidiaries, arising in one or more related or unrelated transactions, in
an
aggregate principal amount outstanding exceeding U.S.$75,000,000 (or the
equivalent thereof in other currencies).
“Material
Subsidiary”
means,
at any date, (a) each Subsidiary of the Borrower (if any) (i) the assets of
which, together with those of its Subsidiaries, on a consolidated basis, without
duplication, constitute 5% or more of the consolidated assets of the Borrower
and its Subsidiaries as of the end of the then most recently ended fiscal
quarter for which quarterly financial statements have been prepared or (ii)
the
operating profit of which, together with that of its Subsidiaries, on a
consolidated basis, without duplication, constitutes 5% or more of the
consolidated operating profit of the Borrower and its Subsidiaries for the
then
most recently ended fiscal quarter for which quarterly financial statements
have
been prepared and (b) each Guarantor.
“Mexican
GAAP”
means
generally accepted accounting principles in Mexico as in effect from time to
time.
“Mexico”
means
the United Mexican States.
“Ministry
of Finance”
means
the Ministry of Finance and Public Credit of Mexico.
“New
Sunward Credit Facility”
means
the U.S.$700,000,000 facilities agreement, dated as of June 27, 2005, among
New Sunward Holding B.V., as borrower, the Borrower, the Guarantors, Citibank
N.A. , as administrative agent, Banco Bilbao Vizcaya Argentaria, S.A. and BNP
Paribas, as amended.
“Notice
of Borrowing”
has
the
meaning specified in Section
2.01(c).
“Notice
of Extension”
has
the
meaning specified in Section
2.01(e).
“Note”
means
a
promissory note of the Borrower in substantially the form of Exhibit
A
or a
▇▇▇▇▇▇
in form
and substance satisfactory to the Administrative Agent, evidencing the
obligation of the Borrower to repay the Loans made by a Lender.
“Obligations”
means,
(a) with respect to the Borrower, all of its indebtedness, obligations and
liabilities to the Lenders, the Joint Bookrunners and the Administrative Agent
now or in the future existing under or in connection with the Transaction
Documents, whether direct or indirect, absolute or contingent, due or to become
due, and (b) with respect to each Guarantor, all of its indebtedness,
obligations and liabilities to the Lenders, the Joint Bookrunners and the
Administrative Agent now or in the future existing under or in connection with
the Transaction Documents, in each case whether direct or indirect, absolute
or
contingent, due or to become due.
“Obligors”
means
the Borrower and each Guarantor, and “Obligor”
means
the Borrower or either Guarantor.
“Other
Taxes”
means
any present or future stamp or documentary taxes or any other excise or property
taxes, charges, imposts, duties, fees, or similar levies which arise from any
payment made hereunder or under the Notes or from the execution, delivery,
registration, performance or enforcement of, or otherwise with respect to,
this
Agreement or any other Transaction Document and which are imposed, levied,
collected or withheld by any Governmental Authority.
“Participant”
has
the
meaning specified in Section
13.06(e).
“Pension
Plan”
means
a
“pension
plan”,
as
such term is defined in Section 3(2) of ERISA, which is subject to Title IV
of
ERISA (other than a multiemployer plan as defined in Section 4001(a)(3) of
ERISA), and to which any Obligor or any of its ERISA Affiliates has any
liability.
“Permitted
Liens”
has
the
meaning specified in Section
8.01.
“Person”
means
an individual, partnership, corporation, business trust, joint stock company,
limited liability company, trust, unincorporated association, joint venture
or
other business entity or Governmental Authority, whether or not having a
separate legal personality.
“Prime
Rate”
means
the average of the rate of interest publicly announced by each of the Reference
Banks from time to time as its Prime Rate in New York City, the Prime Rate
to
change as and when such designated rate changes. The Prime Rate is not intended
to be the lowest rate of interest charged by the Administrative Agent or any
Lender in connection with extensions of credit to debtors of any class, or
generally.
“Process
Agent”
has
the
meaning specified in Section
13.12(a).
“Qualified
Receivables Transaction”
means
a
sale, transfer, or other securitization of receivables and related assets by
the
Borrower or its Subsidiaries, including a sale at a discount, provided
that (i)
such receivables have been transferred, directly or indirectly, by the
originator thereof to any Person in a manner that satisfies the requirements
for
an absolute conveyance under the laws and regulations of the jurisdiction in
which such originator is organized, (ii) at the time the sale, transfer or
securitization of receivables is put in place, the receivables are derecognized
from the balance sheet of the Borrower or its Subsidiary in accordance with
Mexican GAAP in effect as at the date of such sale, transfer or securitization;
and (iii) except for customary representations, warranties, covenants and
indemnities, such sale, transfer or securitization is carried out on a
non-recourse basis or on a basis where recovery is limited to the collection
of
receivables.
“Quotation
Day”
means,
in relation to any period in which an interest rate is to be determined, the
date falling two Business Days before the first day of that period.
“Reference
Banks”
means
the principal London office at ING Capital LLC and Barclays Bank
PLC.
“Regulation
T, U, or X”
means
Regulation T, U or X, respectively, of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor to all or a
portion thereof.
“Required
Lenders”
means,
at any time, Lenders (other than Defaulting Lenders) whose Total Exposures,
when
aggregated, equal or exceed 50.01% of the Aggregate Exposure minus the Total
Exposure of any Defaulting Lender at such time.
“Requirement
of Law”
means,
as to any Person, any law, ordinance, rule, regulation or requirement of any
Governmental Authority, in each case applicable to or binding upon such Person
or any of its property or to which such Person or any of its property is
subject.
“Responsible
Officer”
of
any
Person means the Chief Financial Officer, the Corporate Planning and Finance
Director, the Finance Director or the Comptroller of such Person.
“Screen
Rate”
means,
the British Bankers Association Interest Settlement Rate Dollars for the
relevant period, displayed on the appropriate page of the Reuters screen. If
the
agreed page is replaced or service ceases to be available, the Administrative
Agent may specify another page or service displaying the appropriate rate after
consultation with the Borrower and the Lenders.
“Subsidiary”
means,
with respect to any Person, any corporation, partnership, joint venture, limited
liability company, trust, estate or other entity of which (or in which) more
than 50% of (a) in the case of a corporation, the issued and outstanding Capital
Stock having ordinary voting power to elect a majority of the board of directors
of such corporation (irrespective of whether at the time capital stock of any
other class or classes of such corporation shall or might have voting power
upon
the occurrence of any contingency not in the control of such Person), (b) in
the
case of a limited liability company, partnership or joint venture, the interest
in the capital or profits of such limited liability company, partnership or
joint venture, or (c) in the case of a trust or estate, the beneficial interest
in such trust or estate, is at the time directly or indirectly owned or
controlled by (X) such Person, (Y) such Person and one or more of its other
Subsidiaries or (Z) one or more of such Person’s other Subsidiaries.
“Substitute
Lender”
means
a
commercial bank or other financial institution, acceptable to the Borrower,
the
Lenders and the Administrative Agent, each in its sole discretion, and approved
by the Joint Bookrunners (including such a bank or financial institution that
is
already a Lender hereunder), which assumes all or a portion of the Commitment
of
a Lender pursuant to the terms of this Agreement.
“Target”
has
the
meaning set forth in the recitals.
“Target-Related
Default”
has
the
meaning set forth in Section
10.05.
“Taxes”
means
any and all present or future income, stamp, sales or other taxes, levies,
imposts, duties, deductions, fees, charges or withholdings, and all liabilities
with respect thereto collected, withheld or assessed by any Governmental
Authority, excluding, (a) in the case of each Lender, the Administrative Agent,
and any Tax Related Persons, such taxes (including income taxes or franchise
taxes) as are imposed on or measured by its net income or capital by the
jurisdiction (or any political subdivision thereof) under the laws of which
it
is organized or maintains a Lending Office or its principal office or performs
its functions as Administrative Agent or as are imposed on such Lender or the
Administrative Agent or any of their Tax Related Persons (as the case may be)
as
a result of a present or former connection between the Lender, the
Administrative Agent, or such Tax Related Person and the jurisdiction of the
Governmental Authority imposing such tax or any political subdivision or taxing
authority thereof or therein (other than any such connection arising solely
from
the Lender or such Administrative Agent having executed, delivered or performed
its obligations or received a payment under, or enforced, the Transaction
Documents) and (b) any taxes, levies, imposts, deductions, charges or
withholdings imposed by reason of any Lender’s or Administrative Agent’s failure
to (i) register as a Foreign Financial Institution with the Ministry of Finance
and (ii) be a resident (or have a principal office which is a resident, if
such
Lender lends through a branch or agency) for tax purposes of a jurisdiction
with
which Mexico has in effect a treaty for the avoidance of double taxation (but
only in respect of those taxes payable in excess of taxes that would have been
payable had such Lender complied with those conditions).
“Tax
Related Person”
means
any Person whose income is realized through, or determined by reference to,
the
Administrative Agent or a Lender.
“Tender
Offer”
means
the offer made by Bidco to acquire all the issued and outstanding shares of
Target substantially on terms set forth in the press release dated the Tender
Offer Launch Date, announcing the terms of the Tender Offer, as such offer
may
from time to time be amended, added to, revised, renewed or otherwise
modified.
“Tender
Offer Launch Date”
means
October 27, 2006.
“Termination
Date”
means
the date which is the earliest of (a) the date 364 days following the date
of
this Agreement, or if extended with the written consent of each Lender in its
sole discretion, such later date or (b) if no Loans are outstanding, the date
on
which the Commitments are terminated in accordance with this
Agreement.
“Total
Exposure”
means
at any time, as to any Lender, the amount of its Commitment at such time, or,
if
the Commitments shall have terminated, its Total Outstandings at such
time.
“Total
Outstandings”
means
at any time, as to any Lender, the sum of the aggregate outstanding principal
amount of such Lender’s Loans.
“Transaction
Documents”
means,
collectively, this Agreement, the Notes, any Assignment and Assumption Agreement
pursuant to Section
13.06(c)
hereof,
each Fee Letter, and all other related agreements and documents issued or
delivered hereunder or thereunder or pursuant hereto or thereto.
"Transferee"
has the
meaning specified in Section
8.03(b)(iii)(1).
“United
States”
means
the United States of America, including the States and the District of Columbia,
but excluding its territories and possessions.
“Welfare
Plan”
means
a
“welfare
plan”,
as
such term is defined in Section 3(1) of ERISA.
1.02
Other
Definitional Provisions.
(a) The
terms
“including” and “include” are not limiting and mean “including but not limited
to” and “include but are not limited to”.
(b) The
words
“hereof”,
“herein”
and
“hereunder”
and
words of similar import when used in this Agreement refer to this Agreement
as a
whole and not to any particular provision of this Agreement, and Article,
Section, paragraph, Schedule and Exhibit references are to this Agreement unless
otherwise specified.
(c) The
meanings given to terms defined herein are equally applicable to both the
singular and plural forms of such terms.
(d) In
this
Agreement, in the computation of periods of time from a specified date to a
later specified date, the word “from”
means
“from
and including”
and
the
words “to”
and
“until”
each
means “to
but
excluding”.
Periods of days referred to in this Agreement shall be counted in calendar
days
unless Business Days or Business Days are expressly prescribed.
(e) The
captions and headings of this Agreement are for convenience of reference only
and shall not affect the interpretation of this Agreement.
1.03
Use
of
Defined Terms.
Unless
otherwise defined or the context otherwise requires, terms for which meanings
are provided in this Agreement shall have such meanings when used in each other
Transaction Document and the Schedules.
1.04
Cross-References.
Unless
otherwise specified, references in a Transaction Document to any Article or
Section are references to such Article or Section of such Transaction Document,
and references in any Article, Section or definition to any clause are
references to such clause of such Article, Section or definition.
1.05
Accounting
Terms and Determinations.
All
accounting and financing terms not specifically defined herein shall be
construed in accordance with Mexican GAAP.
(a) Commitment.
During
the Commitment Period, subject to the terms and conditions hereof, each Lender,
severally and not jointly with any other Lender, agrees to make loans in Dollars
(the “Loans”)
to the
Borrower from time to time in an aggregate principal amount of up to such
Lender’s Commitment; provided
that (i)
with regard to the Lenders collectively, the aggregate principal amount of
Loans
outstanding at any one time shall not exceed the Aggregate Committed Amount,
and
(ii) with regard to each Lender individually, the aggregate principal amount
of
such Lender’s Commitment Percentage of all the Loans shall not exceed the
Commitment of such Lender. Loans may be prepaid in accordance with the
provisions hereof. Amounts repaid hereunder may not be reborrowed.
(b) Loans
and Borrowings.
Each
Loan shall be made as part of a Borrowing consisting of Loans made by the
Lenders ratably in accordance with their Commitment Percentage. The failure
of
any Lender to make any Loan required to be made by it shall not relieve any
other Lender of its obligations hereunder, provided
that the
Commitments of the Lenders are several and no Lender shall be responsible for
any other Lender’s failure to make Loans as required.
(c) Borrowings.
(i) Requests
for Borrowings.
(A)
To
request a Borrowing, the Borrower shall notify the Administrative Agent of
such
request by telephone, facsimile or any other electronic means, not later than
10:00 a.m., New York City time on the third Business Day, prior to the
Disbursement Date. Each such telephonic Borrowing request shall be irrevocable
and shall be confirmed promptly by hand delivery or facsimile to the
Administrative Agent of a written notice (the “Notice
of Borrowing”)
in the
form attached as Exhibit
B
approved
by the Administrative Agent and signed by a duly authorized representative
of
the Borrower. Each such telephonic request and written Notice of Borrowing
shall
specify the following information in compliance with this Section
2.01:
|
(1)
|
that
a Loan is requested;
|
|
(2)
|
the
requested Disbursement Date, which shall be a Business
Day;
|
|
(3)
|
the
aggregate principal amount to be borrowed;
and
|
|
(4)
|
the
Interest Period(s) therefor.
|
(B) If
the
Borrower shall fail to specify an applicable Interest Period in any such Notice
of Borrowing, then such notice shall be deemed to be a request for an Interest
Period of one (1) month.
(C) Not
later
than 1:00 p.m. New York City time on the Business Day on which the Notice of
Borrowing is received, the Administrative Agent shall promptly advise each
Lender of the details thereof and shall advise each Lender of the amount of
such
Lender’s Loan to be made as part of the requested Borrowing.
(ii) Minimum
Amounts.
Each
Loan shall be in a minimum aggregate principal amount of U.S.$25,000,000, and
integral multiples of U.S.$10,000,000 in excess thereof (or the remaining
Aggregate Committed Amount, if less).
(d) Funding
of Borrowings.
Each
Lender shall make each Loan to be made by it hereunder on the Disbursement
Date
by wire transfer of immediately available funds by 1:00 p.m., New York City
time, to the account held by the Administrative Agent for such purpose most
recently designated by it by notice to the Lenders. The Administrative Agent
will make such Loans available to the Borrower by promptly crediting on the
same
day the amounts so received, in like funds, to account number ▇▇▇▇▇▇▇▇ that
the
Borrower maintains with Citibank, NA. NY (ABA No. ▇▇▇▇▇▇▇▇▇ Ref: CEMEX) in
New
York City or any other account with such bank or any other financial institution
designated by the Borrower in the applicable Notice of Borrowing (the
“Funding
Account”).
Unless the Administrative Agent shall have received notice from a Lender, prior
to the time of any Borrowing, that such Lender will not make available to the
Administrative Agent such Lender’s share of such Borrowing, the Administrative
Agent may, but shall not be required to, assume that such Lender has made such
share available on such date in accordance with Section 2.01(c)
and may
in its sole discretion, but shall not be required to, in reliance upon such
assumption, make available to the Borrower a corresponding amount. If any Lender
either does not make its share of the applicable Borrowing available to the
Administrative Agent or delays in doing so past 4:00 p.m., New York City time,
on the Disbursement Date, and such default or delay continues unremedied for
five Business Days following the Disbursement Date (such Lender hereinafter
referred to as a “Defaulting
Lender”),
then
the Administrative Agent shall immediately notify the Borrower of such default.
If the Administrative Agent has, in its sole discretion, made available to
the
Borrower an amount corresponding to such Defaulting Lender’s share of the
Borrowing, then the Defaulting Lender and the Borrower jointly and severally
agree to pay to the Administrative Agent forthwith on demand such corresponding
amount with interest thereon, on each day from and including the date such
amount is made available to the Borrower to but excluding the date of payment
to
the Administrative Agent, at:
(i) in
the
case of the Defaulting Lender, the Federal Funds Rate; or
(ii) in
the
case of the Borrower, the Base Rate.
If,
with
respect to the immediately preceding sentence, the Borrower pays such amount
to
the Administrative Agent, then the Defaulting Lender shall indemnify and hold
harmless the Borrower from and against such amount, and if such Defaulting
Lender pays such amount to the Administrative Agent, then such amount shall
constitute such Defaulting Lender’s Loan included in such Borrowing. If the
Administrative Agent, in its discretion, does not make available to the Borrower
an amount corresponding to the Defaulting Lender’s share of the Borrowing then
(x) the Defaulting Lender shall indemnify and hold harmless the Borrower from
and against such amount as well as any and all losses, liabilities (including
liabilities for penalties), actions, suits, judgments, demands, costs, and
expenses (including reasonable fees and disbursements for counsel including
allocated cost of internal counsel) resulting from any failure on the part
of
the Defaulting Lender to provide, or from any delay in providing, the
Administrative Agent with such Defaulting Lender’s pro rata share of the
Borrowing, but no Lender shall be so liable for any such failure on the part
of
or caused by any other Lender or the Administrative Agent or the Borrower,
and
(y) such share of the applicable Borrowing that was not made available shall
be
disregarded for purposes of calculating the Facility Fee pursuant to
Section
3.02
and in
the event such share has not been disregarded for such purposes, any amount
paid
by the Borrower in respect of such share shall be reimbursed to the Borrower
by
the applicable Defaulting Lender with interest thereon at the Federal Funds
Rate
for each day from and including the date such share of the Facility Fee was
paid
by the Borrower to but excluding the date of reimbursement by the Defaulting
Lender. The Administrative Agent, upon notice by the Borrower that such
reimbursement is due from the applicable Defaulting Lender, shall notify such
Defaulting Lender of the amount of the reimbursement due, including interest
thereon, and shall forward such amount to the Borrower upon receipt from the
Defaulting Lender. The Administrative Agent shall not, however, be liable to
the
Borrower for any failure by any Defaulting Lender to reimburse the Borrower
for
any amounts in respect of such Facility Fee.
(e) Extension.
The
Borrower shall have the option, on any Business Day, to extend existing Loans
into a subsequent permissible Interest Period; provided,
however,
that
any request for extension of a Loan that shall fail to specify an Interest
Period shall be deemed to be a request for an Interest Period of one month.
Each
such extension shall be effected by the Borrower by giving a written notice
(or
telephone notice promptly confirmed in writing) (a “Notice
of Extension”)
to the
Administrative Agent prior to 10:00 a.m., New York City time, on the Business
Day of the date of the proposed extension, substantially in the form of
Exhibit
C
hereto,
specifying (A) the date of the proposed extension, (B) the Loans to be so
extended, and (C) the applicable Interest Periods with respect thereto. Each
Notice
of
Extension shall
be
irrevocable and shall constitute a representation and warranty by the Borrower
of the matters specified in Sections
4.02(a)
through
(d).
So long
as there is no Default or Event of Default, in the event the Borrower does
not
request extension of any Loan in accordance with this Section, or any such
extension is not required by this Section, then such Loan shall be continued
at
the end of each Interest Period applicable thereto, until the Borrower selects
an alternate Interest Period, provided that such failure by the Borrower to
request such extension shall also constitute a representation and warranty
by
the Borrower of the matters specified in Sections
4.02(a)
through
(d).
The
Administrative Agent shall give each Lender notice as promptly as practicable
of
any such proposed extension affecting any Loan.
(f) Repayment.
The
principal amount of all Loans shall be due and payable in full on the
Termination Date.
(g) Notes.
Each
Lender’s Commitment Percentage of the Loans shall be evidenced by a duly
executed note in favor of such Lender in the form of Exhibit
A
attached
hereto or a ▇▇▇▇▇▇
in form
and substance satisfactory to the Administrative Agent.
(h) Voluntary
Prepayment of Loans.
The
Borrower may, upon at least three Business Days’ notice to the Administrative
Agent (or such shorter period as the Required Lenders may agree), prepay, in
full or in part, any Loans outstanding under this Agreement without premium
or
penalty; provided
that
each partial prepayment shall be in an amount of U.S.$25,000,000 or an integral
multiple of U.S.$10,000,000 in excess thereof or, if less, the amount drawn
under the Loans.
(a) Each
Loan
shall bear interest at a rate per annum equal to LIBOR plus
the
Applicable Margin.
(b) Default
Interest.
Notwithstanding the foregoing, if any principal of, or interest on, any Loan
or
any fee or other amount payable by the Borrower hereunder is not paid when
due,
whether at stated maturity, upon acceleration, by mandatory prepayment or
otherwise, such overdue amount shall bear interest, after as well as before
judgment, at a rate per annum equal to (i) in the case of overdue principal
of
any Loan, 2% plus
the rate
otherwise applicable to such Loan as provided above or (ii) in the case of
any
other amount, 2% plus
the rate
applicable to Loans as provided in Section
2.02(a).
(c) Payment
of Interest.
Accrued
interest on each Loan shall be payable in arrears on each Interest Payment
Date
for such Loan and upon termination of the Commitments, provided
that in
the event of any repayment or prepayment of any Loan, accrued interest on the
principal amount repaid or prepaid shall be payable on the date of such
repayment or prepayment. Interest with respect to each Loan shall be paid in
Dollars.
(d) Computation.
All
interest hereunder shall be computed on the basis of a year of 360 days. The
applicable LIBOR rate shall be determined by the Administrative Agent, and
such
determination shall be conclusive absent manifest error.
TERMINATION
AND REDUCTION OF
COMMITMENTS;
FEES, TAXES, PAYMENT PROVISIONS
3.01
Termination
or Reduction of Commitments.
(a) Mandatory
Termination.
The
Commitments shall terminate on the Termination Date.
(b) Voluntary
Termination.
Upon at
least three Business Days’ notice to the Administrative Agent and the Joint
Bookrunners, the Borrower may terminate the existing Commitments; provided,
however,
that
the existing Commitments may not be terminated so long as (i) any Loan is
outstanding or (ii) any interest, fee or expenses remain unpaid.
(c) Voluntary
Commitment Reductions.
Voluntary reductions to the unutilized portion of the Commitments may be made
from time to time by the Borrower without premium or penalty. Any reduction
of
the Commitments shall reduce the Commitment of each Lender pro
rata.
(d) Automatic
Commitment Reductions.
Upon
the occurrence of an Amendment Event, each Lender’s commitment will
automatically be reduced so that the Aggregate Committed Amount will
automatically be U.S.$1,000,000,000. Any reduction of the Commitments pursuant
to this Section
3.01(d)
shall
reduce the Commitment of each Lender pro rata, in accordance with Schedule
1.01(b).
3.02
Fees.
(a) The
Borrower agrees to pay to the Administrative Agent, on the Effective Date,
for
the account of the Lenders ratably in accordance with their Commitment
Percentage, certain facility fees (the “Facility
Fees”)
as
agreed in each of the Fee Letters.
(b) Any
facility fees to be paid to each Lender by the Borrower pursuant to the Fee
Letters will be credited against any compensation to be paid by the Borrower,
New Sunward Holding B.V. or Cemex España, S.A. to each Lender, or any of its
respective affiliates, as lenders under each of the Existing Credit Agreements,
in connection with the delivery of such Lender’s written consent to the
provisions of the Amendment and Waiver Agreements and
the
entering into the
Amendment and Waiver Agreements by
the
administrative agent or agent, as the case may be, on such Lenders
behalf.
3.03
Computation
of Fees.
All
fees calculated on a per annum basis shall be computed on the basis of 360
days
and paid for the actual number of days elapsed.
3.04 Taxes.
(a) Any
and
all payments by the Borrower or the Guarantors, as the case may be, to any
Lender, the Joint Bookrunners or the Administrative Agent under this Agreement
and the other Transaction Documents shall be made free and clear of, and without
deduction or withholding for or on account of, any Taxes. In addition, the
Borrower shall promptly pay all Other Taxes.
(b) Except
as
otherwise provided in Section
3.04(c),
the
Borrower and the Guarantors jointly and severally agree to indemnify and hold
harmless each Lender and the Administrative Agent for the full amount of Taxes
or Other Taxes (without duplication), excluding in each case United States
backup withholding Taxes imposed because of payee underreporting (including
any
Taxes or Other Taxes (without duplication) imposed by any jurisdiction on
amounts payable under this Section
3.04)
paid by
or assessed against any Lender or the Administrative Agent in respect of any
sum
payable hereunder and any liability (including penalties, interest, additions
to
tax and expenses) arising therefrom or with respect thereto, whether or not
such
Taxes or Other Taxes were correctly or legally asserted, except to the extent
that such penalties, interest, additions to tax or expenses are incurred solely
as a result of any gross negligence or willful misconduct of such Lender or
Administrative Agent, as the case may be. Payment under this indemnification
shall be made within 30 days after the date any Lender or the Administrative
Agent makes written demand therefore, setting forth in reasonable detail the
basis and calculation of such amounts (such written demand shall be presumed
correct, absent significant error).
(c) If
the
Borrower or the Guarantors, as the case may be, shall be required by law to
deduct or withhold any Taxes or Other Taxes from or in respect of any sum
payable hereunder to any Lender or the Administrative Agent, then:
(i) the
sum
payable shall be increased as necessary so that after making all required
deductions and withholdings (including deductions and withholdings applicable
to
additional sums payable under this Section
3.04,
but
excluding in each case United States backup withholding Taxes imposed because
of
payee underreporting) such Lender or the Administrative Agent receives an amount
equal to the sum it would have received had no such deductions or withholdings
been made, provided
that the
Borrower shall not be required to increase any amounts payable to such Lender
or
the Administrative Agent to the extent such increased amounts would be in excess
of the amounts that would have been payable to such Lender or the Administrative
Agent had such Lender or Administrative Agent complied with the requirements
of
Section
3.04(f)
or to
the extent provided in Section
3.04(g);
(ii) the
Borrower or the Guarantors, as the case may be, shall make such deductions
and
withholdings; and
(iii) the
Borrower or the Guarantors, as the case may be, shall pay the full amount
deducted or withheld to the relevant taxing authority or other authority in
accordance with applicable law.
(d) Within
30
days after the date of any payment by the Borrower or the Guarantors, as the
case may be, of Taxes or Other Taxes, the Borrower or the Guarantors, as the
case may be, shall furnish to the Administrative Agent the original or a
certified copy of a receipt evidencing payment thereof or other evidence of
payment reasonably satisfactory to the Administrative Agent.
(e) If
the
Borrower or any of the Guarantors, as the case may be, is required to pay
additional amounts to the Administrative Agent or any Lender pursuant to
Section 3.04(c)
other
than amounts related to the withholding of Mexican tax at the rate applicable
to
interest payments received by foreign financial institutions registered with
the
Secretaría
de Hacienda y Crédito Público
as a
Foreign Financial Institution for the purposes of Article 195, Section I of
the
Mexican Income Tax law, then the Administrative Agent or such Lender shall
use
reasonable efforts (consistent with legal and regulatory restrictions) to change
the jurisdiction of its Lending Office, issuing office, or office for receipt
of
payments by the Borrower and Guarantors hereunder, as the case may be, so as
to
eliminate or reduce the obligation of the Borrower or the Guarantor, as the
case
may be, to pay any such additional amounts which may thereafter accrue or to
indemnify the Administrative Agent or such Lender in the future, if such change
in the reasonable judgment of the Administrative Agent or such Lender is not
otherwise disadvantageous to such Lender.
(f) Each
Lender and the Administrative Agent shall, from time to time at the request
of
the Borrower or the Administrative Agent (as the case may be), promptly furnish
to the Borrower and the Administrative Agent (as the case may be), such forms,
documents or other information (which shall be accurate and complete) as may
be
reasonably required to establish any available exemption from, or reduction
in
the amount of, applicable Taxes; provided,
however,
that
none of any Lender or the Administrative Agent shall be obliged to disclose
information regarding its tax affairs or computations to the Borrower in
connection with this paragraph (f), it being understood that the identity of
any
Person shall not be considered for these purposes as information regarding
its
tax affairs or computations. Each of the Borrower and the Administrative Agent
shall be entitled to rely on the accuracy of any such forms, documents or other
information furnished to it by any Person and shall have no obligation to make
any additional payment or indemnify any Person for any Taxes, interest or
penalties that would not have became payable by such Person had such
documentation been accurate.
(g) In
the
case of an assignment, transfer, grant of a participation, designation of a
new
Lending Office or Administrative Agent’s Payment Office or appointment of a
successor Administrative Agent, the Borrower and Guarantors shall not be
required to pay or increase any amounts, pursuant to this Section
3.04
following such event, in excess of the amounts the Borrower and Guarantors
were
required to pay or increase immediately prior to such an event, except to the
extent such event occurs pursuant to Section
3.10
or to
the extent of increases in such amounts resulting from a change in applicable
law occurring after such event.
(h) If
the
Administrative Agent or any Lender receives a refund or credit in respect of
Taxes or Other Taxes as to which it has been indemnified by the Borrower or
a
Guarantor, as the case may be, pursuant to Section
3.04(b)
and such
refund or credit is directly and clearly attributable to this Agreement, it
shall promptly notify the Borrower or such Guarantor, as the case may be, of
the
amount of such refund or credit and shall promptly return to the Borrower or
such Guarantor, as the case may be, such refund or shall transfer the benefit
of
such credit to the Borrower or such Guarantor, as the case may be; provided,
however,
that
(A) the Administrative Agent or such Lender, as the case may be, shall not
be
obligated to make any effort to obtain such refund or credit or to provide
the
Borrower or the Guarantors with any information on or justification for the
arrangement of its tax affairs or otherwise disclose to the Borrower, the
Guarantors or any other Person any information that it considers to be
proprietary or confidential, and (B) the Borrower or such Guarantor, as the
case
may be, upon the request of the Administrative Agent or such Lender, as the
case
may be, shall return the amount of such refund or the benefit of such credit
to
the Administrative Agent or such Lender, as the case may be, if the
Administrative Agent or such Lender, as the case may be, is required to repay
the amount of such refund or the benefit of such credit to the relevant
authorities within six years of the date the Borrower or such Guarantor, as
the
case may be, is paid such amount by the Administrative Agent or such Lender,
as
the case may be.
(i) The
agreements in this Section
3.04
shall
survive the termination of this Agreement and the payment of the Borrower’s
Obligations.
3.05
General
Provisions as to Payments.
(a) All
payments to be made by the Borrower or the Guarantors, as the case may be,
shall
be made without set-off, counterclaim or other defense. Except as otherwise
expressly provided herein, all payments by the Borrower shall be made to the
Administrative Agent for the account of the Lenders at the Administrative
Agent’s Payment Office, and shall be made in Dollars and in immediately
available funds, no later than 3:30 p.m. (New York City time) on the dates
specified herein. The Administrative Agent will promptly distribute to each
Lender its Commitment Percentage (or other applicable share as expressly
provided herein) of each payment in like funds as received. Any payment received
by the Administrative Agent later than 3:30 p.m. (New York City time) shall
be
deemed to have been received on the following Business Day and any applicable
interest or fee shall continue to accrue until such following Business
Day.
(b) Except
and to the extent otherwise specifically provided herein, whenever any payment
to be made hereunder is due on a day which is not a Business Day, the date
for
payment thereof shall be extended to the immediately following Business Day
and,
if interest is stated to be payable in respect thereof, interest shall continue
to accrue to such immediately following Business Day.
(c) Unless
the Administrative Agent shall have received notice from the Borrower prior
to
the date on which any payment is due to the Lenders hereunder that the Borrower
will not make such payment in full, the Administrative Agent may assume that
the
Borrower has made such payment in full to the Administrative Agent on such
date
and the Administrative Agent may (but shall not be so required), in reliance
upon such assumption, cause to be distributed to each Lender, as the case may
be, on such due date an amount equal to the amount then due to such Lender.
If
and to the extent that the Borrower shall not have made such payment, each
Lender shall repay to the Administrative Agent forthwith on demand such amount
distributed to such Lender together with accrued interest thereon, for each
day
from the date such amount is distributed to such Lender until the date such
Lender repays such amount to the Administrative Agent, at the Federal Funds
Rate; provided,
however,
that if
any amount remains unpaid by any Lender for more than five Business Days after
the Administrative Agent has made a demand for such amount, such Lender shall,
commencing on the day next following such fifth Business Day, pay interest
to
the Administrative Agent at a rate per annum equal to the Federal Funds Rate
plus
1%, and,
provided further,
that if
any such amount remains unpaid by any Lender for more than ten Business Days,
such Lender shall, commencing on the day next following such tenth Business
Day,
pay interest to the Administrative Agent at a rate per annum equal to the
Federal Funds Rate plus
2.00%.
3.06
Funding
Losses.
If the
Borrower makes any payment of principal with respect to any Loan on any day
other than the last day of the Interest Period applicable thereto (including,
for the avoidance of doubt, any prepayment made pursuant to Section
2.01(h)),
or if
the Borrower fails to borrow any Loans after notice has been given to any Lender
in accordance with Section
2.01,
or if
the Borrower fails to prepay any Loans after notice has been given pursuant
to
Section
2.01,
the
Borrower shall reimburse each Lender within 15 days after demand for any
resulting loss or expense incurred by it, including any loss incurred in
obtaining, liquidating or reemploying deposits bearing interest by reference
to
LIBOR from third parties (“Funding
Losses”),
provided such Lender shall have delivered to the Borrower a certificate setting
forth in reasonable detail the computations for the amount of such loss or
expense, which certificate shall be conclusive in the absence of manifest
error.
3.07
Basis
for Determining Interest Rate Inadequate or Unfair.
If on
or prior to the first day of any Interest Period for any Loan:
(a) the
Administrative Agent determines that by reason of circumstances affecting the
London interbank market, reasonably adequate means do not exist for ascertaining
LIBOR applicable to such Interest Period or that deposits in Dollars (in the
applicable amounts) are not being offered in the London interbank market for
such Interest Period, or
(b) the
Required Lenders advise the Administrative Agent that LIBOR as determined by
the
Administrative Agent will not adequately and fairly reflect the cost to any
Lender of making or maintaining its Loan for such Interest Period,
(c) then
the
Administrative Agent shall forthwith give notice thereof to the Borrower and
the
Lenders. In the event of any such determination or advice, until the
Administrative Agent shall have notified the Borrower and the Lenders that
the
circumstances giving rise to such notice no longer exist, any request by the
Borrower for a Loan of the affected amount or Interest Period, or a continuation
of a Loan of the affected amount or Interest Period shall be deemed rescinded
and such request shall instead be considered a request for a Loan made at a
rate
of interest calculated with reference to Base Rate. Each determination by the
Administrative Agent hereunder shall be conclusive absent manifest
error.
3.08
Capital
Adequacy.
If
any
Lender has determined, after the date hereof, that the adoption or the becoming
effective of, or any change in, or any change by any Governmental Authority,
central bank, or comparable agency charged with the interpretation or
administration thereof in the interpretation or administration of, any
applicable law, rule, or regulation regarding capital adequacy, or compliance
by
such Lender with any request or directive regarding capital adequacy (whether
or
not having the force of law) of any such authority, central bank, or comparable
agency, has or would have the effect of increasing such Lender’s cost of
maintaining its Commitment or making or maintaining any Loans or reducing the
rate of return on such Lender’s capital or assets as a consequence of its
commitments or obligations hereunder to a level below that which such Lender
could have achieved but for such adoption, effectiveness, change, or compliance
(taking into consideration such Lender’s policies with respect to capital
adequacy), then, upon notice from such Lender to the Borrower, the Borrower
shall be obligated to pay to such Lender such additional amount or amounts
as
will compensate such Lender for such increased cost or reduction in amount
received. Each determination by any such Lender of amounts owing under this
Section shall, absent manifest error, be conclusive and binding on the parties
hereto. The relevant Lender will, upon request, provide a certificate in
reasonable detail as to the amount of such increased cost or reduction in amount
received and method of calculation.
Upon
any
Lender’s making a claim for compensation under this Section
3.08,
(i)
such Lender shall use commercially reasonable efforts (consistent with legal
and
regulatory restrictions) to change the jurisdiction of its Lending Office or
assign its rights and obligations hereunder to another of its offices, branches
or affiliates so as to eliminate or reduce any such additional payment by the
Borrower which may thereafter accrue, if such change is not otherwise
disadvantageous to such Lender, and (ii) the Borrower may replace such Lender
in
accordance with Section
3.11.
3.09
Illegality.
(a) Notwithstanding
any other provision herein, if the adoption of or any change in any Requirement
of Law or in the interpretation or application thereof occurring after the
Effective Date shall make it unlawful for any Lender to make or maintain any
Commitment or any Loan as contemplated by this Agreement, then such Lender,
together with Lenders giving notice under Section
3.07(c),
shall
be an “Affected
Lender”
and
by
written notice to the Borrower and to the Administrative Agent:
(i) such
Lender may declare that such Loans will not thereafter (for the duration of
such
unlawfulness or impossibility) be made by such Lender hereunder, whereupon,
in
the case of any request for a Loan, as to such Lender, such request shall only
be deemed a request for a Loan made at a rate of interest calculated with
reference to the Base Rate (unless it shall be illegal for the Affected Lender
to provide such Loan, in which case such Loan shall bear interest at a
commensurate rate to be agreed upon by the Administrative Agent and the Affected
Lender, and so long as no Event of Default shall have occurred and be
continuing, the Borrower), unless such declaration shall be subsequently
withdrawn; and
(ii) such
Lender may require that all outstanding Loans made by it be converted into
Loans
made at a rate of interest calculated with reference to the Base Rate, in which
event all such Loans shall be automatically converted to such Loans as of the
effective date of such notice as provided in paragraph (b) below;
and
(iii) if
it is
also illegal for the Affected Lender to make Loans bearing interest at the
Base
Rate, such Lender may declare all amounts owed to them by the Borrower to the
extent of such illegality to be due and payable; provided,
however,
the
Borrower has the right, with the consent of the Administrative Agent to find
an
additional Lender to purchase the Affected Lenders’ rights and
obligations.
In
the
event any Lender shall exercise its rights under (i) or (ii) above with respect
to any Loans, all payments and prepayments of principal that would otherwise
have been applied to repay the Loans that would have been made by such Lender
shall instead be applied to repay the Loans made at a rate of interest
calculated with reference to the Base Rate by such Lender in lieu of, or
resulting from the conversion, of such Loans.
(b) For
purposes of this Section
3.09,
a
notice to the Borrower by any Lender shall be effective as to each such Loan,
if
lawful, on the last day of the Interest Period currently applicable to such
Loan; in all other cases such notice shall be effective on the date of receipt
by the Borrower.
3.10
Requirements
of Law.
If,
after
the date hereof, the adoption of or any change in any Requirement of Law or
in
the interpretation or application thereof applicable to any Lender, or
compliance by any Lender with any request or directive (whether or not having
the force of law) from any central bank or other Governmental Authority, in
each
case made subsequent to the Effective Date (or, if later, the date on which
such
Lender becomes a Lender):
(a) shall
impose, modify, or hold applicable any reserve, special deposit, compulsory
loan, or similar requirement against assets held by, deposits or other
liabilities in or for the account of, advances, loans, or other extensions
of
credit by, or any other acquisition of funds by, any office of such Lender
that
is not otherwise included in the determination of the LIBOR hereunder;
or
(b) shall
impose on such Lender any other condition (excluding any tax of any kind
whatsoever);
and
the
result of any of the foregoing is to increase the cost to such Lender, by an
amount that such Lender reasonably deems to be material, of making, converting
into, continuing, or maintaining Loans or to reduce any amount receivable
hereunder in respect thereof, then, in any such case, upon notice delivered
to
the Borrower from such Lender, through the Administrative Agent, in accordance
herewith, the Borrower shall be obligated to promptly pay such Lender, upon
its
demand, any additional amounts necessary to compensate such Lender for such
increased cost or reduced amount receivable. If any Lender becomes entitled
to
claim any additional amounts pursuant to this Section, it shall provide notice
thereof to the Borrower, promptly upon occurrence of such event, but in any
case
within three (3) days from the date of such event, through the Administrative
Agent, certifying (x) that one of the events described in this paragraph (a)
has
occurred and describing in reasonable detail the nature of such event, (y)
as to
the increased cost or reduced amount resulting from such event and (z) as to
the
additional amount demanded by such Lender and a reasonably detailed explanation
of the calculation thereof. Such a certificate as to any additional amounts
payable pursuant to this subsection submitted by such Lender, through the
Administrative Agent, to the Borrower shall be conclusive and binding on the
parties hereto in the absence of manifest error. This covenant shall survive
the
termination of this Agreement and the payment of the Loans and all other amounts
payable hereunder. If any Lender becomes aware of a proposed change in any
Requirement of Law that would entitle it to claim any additional amounts
pursuant to this Section it shall promptly, upon the Lender becoming aware
of
such event, provide notice to the Borrower through the Administrative
Agent.
3.11
Substitute
Lenders.
If any
Lender has demanded compensation (or if the Borrower is required to increase
amounts payable hereunder) pursuant to Sections
3.04,
3.08,
3.09
or to
3.10,
and
such Lender does not waive its right to future additional compensation pursuant
to Sections
3.04,
3.08,
3.09
or
3.10,
the
Borrower shall have the right (i) to replace such Lender with a Substitute
Lender or Substitute Lenders that shall succeed to the rights of such Lender
under this Agreement upon execution of an Assignment and Assumption Agreement
and payment by the Borrower of the related processing fee of U.S.$3,500 to
the
Administrative Agent; or (ii) to remove such Lender, reduce the Commitments
by
the amount of the Commitment of such Lender, and adjust the Commitment
Percentage of each Lender such that the percentage of each other Lender shall
be
increased to equal the percentage equivalent of a fraction. The numerator of
which is the Commitment of such other Lender and the denominator of which is
the
Commitments of the Lenders minus the Commitments of the Lender who demanded
payment pursuant to Sections
3.04,
3.08,
3.09
or
3.10;
provided,
however,
that
such Lender shall not be replaced or removed hereunder until such Lender has
been repaid in full all amounts owed to it pursuant to this Agreement and the
other Transaction Documents (including Section
3.08)
unless
any such amount is being contested by the Borrower in good faith.
3.12
Sharing
of Payments, Etc.
(a) If,
other
than as expressly provided elsewhere herein, any Lender shall obtain on account
of the Obligations owing to it any payment (whether voluntary, involuntary,
through the exercise of any right of set-off, or otherwise) in excess of its
Commitment Percentage of payments on account of the Obligations obtained by
all
the Lenders (an “excess
payment”),
such
Lender shall forthwith (i) notify the Administrative Agent of such fact, and
(ii) purchase from the other Lenders such participations in such Obligations
owing to them as shall be necessary to cause such purchasing Lender to share
the
excess payment ratably with each of them; provided,
however,
that if
all or any portion of such excess payment is thereafter recovered from the
purchasing Lender, such purchase shall to that extent be rescinded and each
other Lender shall repay to the purchasing Lender the purchase price paid
therefor, together with an amount equal to such paying Lender’s Commitment
Percentage (according to the proportion of (A) the amount of such paying
Lender’s required repayment to (B) the total amount so recovered from the
purchasing Lender) of any interest or other amount paid or payable by the
purchasing Lender in respect of the total amount so recovered. The
Administrative Agent will keep records (which shall be conclusive and binding
in
the absence of demonstrable error) of participations purchased pursuant to
this
Section
3.12
and will
in each case notify the Lenders following any such purchases.
(b) If
any
Lender shall commence any action or proceeding in any court to enforce its
rights hereunder after consultation with the other Lenders and, as a result
thereof or in connection therewith, it shall receive any excess payment, then
such Lender shall not be required to share any portion of such excess payment
with any Lender which has the legal right to, but does not, join in any such
action or proceeding or commence and diligently prosecute a separate action
or
proceeding to enforce its rights in another court.
(c) The
Borrower agrees that any Lender so purchasing a participation from another
Lender pursuant to this Section
3.12
may
exercise all its rights of set-off with respect to such participation as fully
as if such Lender were the direct creditor of the Borrower in the amount of
such
participation.
CONDITIONS
PRECEDENT
4.01
Conditions
to Effectiveness.
The
obligations of the Lenders under this Agreement are subject to the satisfaction
or waiver of the following conditions precedent (the date on which all such
conditions precedent are satisfied or waived being the “Effective
Date”):
(a) Agreement.
The
Administrative Agent shall have received counterparts of this Agreement duly
executed by each party hereto.
(b) Opinions
of Borrower’s and each Guarantor’s Counsel.
The
Administrative Agent shall have received (i) the opinion of Mayer, Brown, ▇▇▇▇
& Maw, LLP, New York counsel to the Borrower and the Guarantors, in
substantially the form of Exhibit
E,
and
(ii) the opinion of Lic. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, General Counsel of the
Borrower and the Guarantors, in substantially the form of Exhibit
F.
(c) Opinion
of Counsel to the Administrative Agent.
The
Administrative Agent shall have received (i) a favorable opinion of ▇▇▇▇▇
▇▇▇▇▇▇▇, S.C., special Mexican counsel to the Administrative Agent and the
Lenders, and (ii) the opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, New York counsel
to the Lenders.
(d) Governmental
Approvals.
The
Administrative Agent shall have received certified copies of any and all
necessary approvals, authorizations, or consents of, or notices to, or
registrations with any Governmental Authority required for the Borrower and
each
Guarantor to enter into, or perform its obligations under, the Transaction
Documents.
(e) Organizational
Documents of the Borrower and the Guarantors.
On the
Effective Date, the Administrative Agent shall have received certified copies
of
(i) the acta
constitutiva
and
estatutos
sociales
in
effect on the Effective Date of the Borrower and each Guarantor, (ii) the
powers-of-attorney of each Person executing any Transaction Document on behalf
of the Borrower and each Guarantor, together with specimen signatures of such
Person and (iii) all documents evidencing other necessary corporate action
and
governmental approvals, if any, with respect to the authorization for the
execution, delivery and performance of each such Transaction Document and the
transactions contemplated hereby and thereby. All certificates shall state
that
the resolutions or other information referred to in such certificates have
not
been amended, modified, revoked or rescinded as of the date of such certificates
(which shall not be earlier than five Business Days before the Effective
Date).
(f) Agent
for Service of Process.
The
Administrative Agent shall have received a power of attorney, notarized under
Mexican law, granted by the Borrower and each Guarantor to the Process Agent
in
respect of the Transaction Documents together with evidence that the Process
Agent has accepted its appointment as Process Agent pursuant to Section
13.12.
(g) Fees
and Expenses.
The
Borrower shall have paid all fees and expenses owing to the Lenders (unless
a
Lender requests, and notifies the Administrative Agent and the Borrower in
accordance with the provisions of this Agreement, to postpone the payment of
any
fee payable to such Lender by the Borrower for a later date), the Joint
Bookrunners and the Administrative Agent to the extent of and payable on or
before the Effective Date of the Agreement, and all other fees and expenses
owing hereunder and under the Fee Letters to the extent due and payable on
or
before the Effective Date of the Agreement.
(h) No
Default.
No
Default or Event of Default shall have occurred and be continuing either prior
to or after giving effect to the transactions contemplated on the Effective
Date, and the Borrower and each Guarantor shall have provided a certificate
from
a Responsible Officer of the Borrower to such effect to the Administrative
Agent.
(i) Representations
and Warranties.
The
representations and warranties of the Borrower and of each Guarantor contained
in this Agreement and each other Transaction Document shall be true on and
as of
the Effective Date, and the Borrower and each Guarantor shall have provided
a
certificate to such effect to the Administrative Agent.
(j) Other
Documents.
The
Administrative Agent shall have received such other certificates, powers of
attorney and other documents and undertakings relating to the authority for,
and
the execution, delivery and validity of, the Transaction Documents, as may
be
reasonably requested by the Administrative Agent or any Lender through the
Administrative Agent.
4.02
Conditions
Precedent to Borrowings.
The
obligation of any Lender to make a Loan on the occasion of any Borrowing is
subject to the satisfaction of the following conditions:
(a) Notes.
If
requested by a Lender, there shall have been delivered to the Administrative
Agent for the account of such Lender, a Note, executed by the
Borrower;
(b) Notices.
In the
case of Borrowings, the Administrative Agent shall have received a Notice of
Borrowing as required by Section
2.01(c);
(c) Availability.
Immediately after such Borrowing or the continuation of any Loan, the Total
Outstandings shall not exceed the Aggregate Committed Amount;
(d) No
Default.
Immediately before and after giving effect to such Borrowing, no Default or
Event of Default shall have occurred and be continuing and such Borrowing will
not cause or result in a Default or Event of Default; and
(e) Representations
and Warranties.
The
representations and warranties of the Borrower contained in this Agreement
and
in each other Transaction Document and of each Guarantor contained in this
Agreement shall be true and correct in all material respects on and as of the
date of any Borrowing or continuation of any Loan.
REPRESENTATIONS
AND WARRANTIES OF THE BORROWER
The
Borrower represents and warrants that:
5.01
Corporate
Existence and Power.
(a) The
Borrower is a corporation (sociedad
anónima bursátil de capital variable)
duly
incorporated, validly existing and in good standing under the laws of Mexico
and
has all requisite corporate power and authority (including all governmental
licenses, permits and other approvals except for such licenses, permits and
approvals the absence of which will not have a Material Adverse Effect) to
own
its assets and carry on its business as now conducted.
(b) All
of
the outstanding stock of the Borrower has been validly issued and is fully
paid
and non-assessable.
5.02
Power
and Authority; Enforceable Obligations.
(a) As
of the
Effective Date, the execution, delivery and performance by the Borrower of
each
Transaction Document to which it is or will be a party, and the consummation
of
the transactions contemplated hereby and thereby, are within the Borrower’s
corporate powers and have been duly authorized by all necessary corporate action
pursuant to the estatutos
sociales
of the
Borrower, and such have not been amended, modified or revoked and remain in
full
force and effect.
(b) This
Agreement and the other Transaction Documents to which the Borrower is a party
have been duly executed and delivered by the Borrower and constitute the legal,
valid and binding obligations of the Borrower enforceable in accordance with
their respective terms, except as enforceability may be limited by applicable
concurso
mercantil,
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors’ rights generally or general equity principles.
5.03
Compliance
with Law and Other Instruments.
The
execution, delivery of and performance under this Agreement and each of the
other Transaction Documents to which the Borrower is a party and the
consummation of the transactions herein or therein contemplated, and compliance
with the terms and provisions hereof and thereof, do not and will not (a)
conflict with, or result in a breach or violation of, or constitute a default
under, or result in the creation or imposition of any Lien upon the assets
of
the Borrower pursuant to, any Contractual Obligation of the Borrower or (b)
result in any violation of the estatutos
sociales
of the
Borrower or any provision of any Requirement of Law applicable to the
Borrower.
5.04
Consents/Approvals.
No
order, permission, consent, approval, license, authorization, registration
or
validation of, or notice to or filing with, or exemption by, any Governmental
Authority or third party is required to authorize, or is required in connection
with, the execution, delivery and performance by the Borrower of this Agreement
and the other Transaction Documents to which the Borrower is a party or the
taking of any action contemplated hereby or by any other Transaction
Document.
5.05
Financial
Information.
(a) The
consolidated balance sheet of the Borrower and its Subsidiaries as at December
31, 2005, and the related consolidated statements of income and cash flows
of
the Borrower and its Subsidiaries for the fiscal year then ended, accompanied
by
an opinion of KPMG ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, S.C., independent public accountants, copies
of which have been furnished to each Lender, fairly present, the consolidated
financial condition of the Borrower and its Subsidiaries as at such date and
the
consolidated results of the operations of the Borrower and its Subsidiaries
for
the period ended on such date, all in accordance with Mexican GAAP, consistently
applied.
(b) The
unaudited consolidated balance sheet of the Borrower and its Subsidiaries as
at
September 30, 2006 and the related consolidated statements of income, changes
in
equity and changes in financial position for the nine-month period then ended,
copies of which have been furnished to each Lender, were prepared in conformity
with Mexican GAAP and fairly present the consolidated financial condition of
the
Borrower and its Subsidiaries as at September 30, 2006 and the results of
operations for the fiscal period ended on such date.
5.06
Litigation.
Except
as set forth in Schedule
5.06,
there
is no pending or threatened action, suit, investigation, litigation or
proceeding, including any Environmental Action, affecting the Borrower or any
of
its Subsidiaries before any court, Governmental Authority or arbitrator that
(a)
would be reasonably likely to have a Material Adverse Effect or (b) purports
to
affect the legality, validity or enforceability of any Transaction Document
or
the consummation of the transactions contemplated thereby, and there has been
no
material adverse change in the status, or financial effect on the Borrower
or
any of its Subsidiaries which would reasonably be expected to have a Material
Adverse Effect on the Borrower and its Subsidiaries taken as a whole, of the
litigation described in Schedule
5.06.
5.07
No
Immunity.
The
Borrower is subject to civil and commercial law with respect to its obligations
under this Agreement and each other Transaction Document to which it is a party
and the execution, delivery and performance of this Agreement or any such other
Transaction Document by the Borrower constitute private and commercial acts
rather than public or governmental acts. Under the laws of Mexico neither the
Borrower nor any of its property has any immunity from jurisdiction of any
court
or any legal process (whether through service or notice, attachment prior to
judgment or attachment in aid of execution).
5.08
Governmental
Regulations.
The
Borrower is not, and is not controlled by, (a) an “investment
company”
within
the meaning of the United States Investment Company Act of 1940, as amended
or
(b) a “holding
company”,
or a
“subsidiary
company”
of
a
“holding
company”,
or an
“affiliate”
of
a
“holding
company”
or
of a
“subsidiary”
of
a
“holding
company”,
within
the meaning of the Public Utility Holding Company Act of 1935, as
amended.
5.09
Direct
Obligations; Pari Passu; Liens.
(a) (i)
This
Agreement constitutes a direct, unconditional unsubordinated and unsecured
obligation of the Borrower, and (ii) the Loans, when made, will constitute
direct, unconditional unsubordinated and unsecured obligations of the
Borrower.
(b) The
obligations of the Borrower under this Agreement and the Loans rank and will
rank in priority of payment at least pari passu with all other senior unsecured
Debt of the Borrower.
(c) There
are
no Liens on the property of the Borrower or any of its Subsidiaries other than
Permitted Liens.
5.10
Subsidiaries.
As of
the date of this Agreement, all Material Subsidiaries of the Borrower are listed
on Schedule
5.10.
5.11
Ownership
of Property.
(a)
Except as, in the aggregate, could not reasonably be expected to have a Material
Adverse Effect, each of the Borrower and its Subsidiaries has title in fee
simple (or the equivalent legal title in Mexico) to, or a valid leasehold
interest in, all its real property, and good title to, or a valid leasehold
interest in, all its other property, and none of such property is subject to
any
Lien except Permitted Liens and (b) each Obligor maintains insurance as required
by Section
7.05.
5.12
No
Recordation Necessary.
(a) This
Agreement and the Notes are in proper legal form under the law of Mexico for
the
enforcement thereof against the Borrower under the law of Mexico. To ensure
the
legality, validity, enforceability or admissibility in evidence of this
Agreement and each other Transaction Document in Mexico, it is not necessary
that this Agreement or any other Transaction Document be filed or recorded
with
any Governmental Authority in Mexico or that any stamp or similar tax be paid
on
or in respect of this Agreement or any other document to be furnished under
this
Agreement, unless such stamp or similar taxes have been paid by the Borrower;
provided,
however,
that in
the event any legal proceedings are brought in the courts of Mexico, an official
Spanish translation of the documents required in such proceedings, including
this Agreement, would have to be approved by the court after the defendant
is
given an opportunity to be heard with respect to the accuracy of the
translation, and proceedings would thereafter be based upon the translated
documents.
(b) It
is not
necessary (i) in order for the Administrative Agent or any Lender to enforce
any
rights or remedies under the Transaction Documents or (ii) solely by reason
of
the execution, delivery and performance of this Agreement by the Administrative
Agent or any Lender, that the Administrative Agent or such Lender be licensed
or
qualified with any Mexican Governmental Authority or be entitled to carry on
business in Mexico.
5.13
Taxes.
(a) Each
Obligor has filed all material tax returns which are required to be filed by
it
and has paid all taxes due pursuant to such returns or pursuant to any material
assessment received by the Borrower, except where the same may be contested
in
good faith by appropriate proceedings and as to which such Obligor maintains
reserves to the extent it is required to do so by law or pursuant to Mexican
GAAP. The charges, accruals and reserves on the books of each Obligor in respect
of taxes or other governmental charges are, in the opinion of the Borrower,
adequate.
(b) Except
for tax imposed by way of withholding on interest, fees and commissions remitted
from Mexico, there is no tax (other than taxes on, or measured by, income or
profits), levy, impost, deduction, charge or withholding imposed, levied,
charged, assessed or made by or in Mexico or any political subdivision or taxing
authority thereof or therein either (i) on or by virtue of the execution or
delivery of this Agreement or any of the other Transaction Documents or (ii)
on
any payment to be made by the Borrower pursuant to this Agreement or any of
the
other Transaction Documents. The Borrower and each Guarantor is permitted to
pay
any additional amounts payable pursuant to Section
3.04.
5.14
Compliance
with Laws.
The
Borrower and its Subsidiaries are in compliance in all material respects with
all applicable Requirements of Law (including with respect to the licenses,
certificates, permits, franchises, and other governmental authorizations
necessary to the ownership of their respective properties or to the conduct
of
their respective businesses, antitrust laws or Environmental Laws and the rules
and regulations and laws with respect to social security, workers’ housing
funds, and pension funds obligations), except where the failure to so comply
would not have a Material Adverse Effect.
5.15
Absence
of Default.
No
Default or Event of Default has occurred and is continuing.
5.16
Full
Disclosure.
All
information heretofore furnished by the Borrower to the Administrative Agent,
the Joint Bookrunners or any Lender for purposes of or in connection with this
Agreement or any transaction contemplated hereby (other than projections and
other “forward-looking”
information that have been prepared on a reasonable basis and in good faith
by
the Borrower) is true and accurate in all material respects on the date as
of
which such information is stated or certified and does not omit to state any
material fact necessary in order to make the statements contained herein or
therein, taken as a whole, not misleading. The Borrower has disclosed to the
Lenders in writing any and all facts which may have a Material Adverse
Effect.
5.17
Choice
of Law; Submission to Jurisdiction and Waiver of Sovereign
Immunity.
In any
action or proceeding involving the Borrower arising out of or relating to this
Agreement in any Mexican court or tribunal, any Lender, the Joint Bookrunners
and the Administrative Agent would be entitled to the recognition and
effectiveness of the choice of law, submission to jurisdiction and waiver of
sovereign immunity provisions of Sections
13.10,
13.11
and
13.13
hereof.
5.18
Aggregate
Exposure.
The
Aggregate Exposure does not exceed the Aggregate Committed Amount.
5.19
Total
Outstandings.
The
Total Outstandings do not exceed the aggregate amount of the
Commitments.
5.20
Pension
and Welfare Plans.
During
the consecutive twelve-month period prior to the date of the execution and
delivery of this Agreement and prior to the date of any Borrowing hereunder,
no
steps have been taken to terminate any Pension Plan, and no contribution failure
has occurred with respect to any Pension Plan sufficient to give rise to a
Lien
under Section 302(f) of ERISA. No condition exists or event or transaction
has
occurred with respect to any Pension Plan which would reasonably be expected
to
result in the incurrence by any Obligor, any of its Subsidiaries, or any its
ERISA Affiliates of any material liability (other than liabilities incurred
in
the ordinary course of maintaining the Pension Plan), fine or penalty. No
Obligor, nor any of its Subsidiaries, has any contingent liability with respect
to any post-retirement benefit under a Welfare Plan which would reasonably
be
expected to have a Material Adverse Effect, other than liability for
continuation coverage described in Part 6 of Title I of ERISA.
5.21
Environmental
Matters.
Except
as
could not have or could not be reasonably expected to have a Material Adverse
Effect (or except as is disclosed in Schedule
5.06
(Litigation)):
(a) Each
of
the properties owned or leased by an Obligor or any of its Subsidiaries (the
“Real
Properties”)
and
all operations at the Real Properties are in compliance with all applicable
Environmental Laws, and there is no violation of any Environmental Law with
respect to the Real Properties or the businesses operated by the Credit Parties
or any of their Subsidiaries (the “Businesses”),
and
there are no conditions relating to the Businesses or Real Properties that
would
reasonably be expected to give rise to liability under any applicable
Environmental Laws.
(b) No
Obligor has received any written notice of, or written inquiry from any
Governmental Authority regarding, any violation, alleged violation,
non-compliance or liability regarding Hazardous Materials or compliance with
Environmental Laws with regard to any of the Real Properties or the Businesses,
nor, to the knowledge of an Obligor or any of its Subsidiaries, is any such
written notice or written inquiry being threatened.
(c) Hazardous
Materials have not been transported or disposed of from the Real Properties,
or
generated, treated, stored or disposed of at, on or under any of the Real
Properties or any other location, in each case by, or on behalf or with the
permission of, an Obligor or any of its Subsidiaries in a manner that would
give
rise to liability under any applicable Environmental Laws.
(d) No
judicial proceeding or governmental or administrative action is pending or,
to
the knowledge of an Obligor or any of its Subsidiaries, threatened, under any
Environmental Law to which an Obligor or any of its Subsidiaries is or will
be
named as a party, nor are there any consent decrees or other decrees, consent
orders, administrative orders or other orders, or other administrative or
judicial requirements outstanding under any Environmental Law with respect
to an
Obligor or any of its Subsidiaries, the Real Properties or the
Businesses.
(e) There
has
been no release (including, without limitation, disposal) or to the Borrower’s
knowledge, threat of release of Hazardous Materials at or from the Real
Properties, or arising from or related to the operations of an Obligor or any
of
its Subsidiaries in connection with the Real Properties or otherwise in
connection with the Businesses where such release constituted a violation of,
or
would give rise to liability under, any applicable Environmental
Laws.
(f) None
of
the Real Properties contains any Hazardous Materials at, on or under the Real
Properties in amounts or concentrations that, if released, would constitute
a
violation of, or could give rise to liability under, Environmental
Laws.
(g) No
Obligor, nor any of its Subsidiaries, has assumed any liability of any Person
(other than another Obligor or one of its Subsidiaries) under any Environmental
Law.
(h) This
Section
5.21
constitutes the only representations and warranties of the Credit Parties with
respect to any Environmental Law or Hazardous Substance.
5.22 Margin
Regulations.
No part
of the proceeds of the Loans hereunder will be used, directly or indirectly,
for
the purpose of purchasing or carrying any Margin Stock except in compliance
with
Regulation U. If requested by any Lender or the Administrative Agent, the
Borrower will furnish to the Agent and each Lender a statement to the foregoing
effect in conformity with the requirements of FR Form U-1 referred to in said
Regulation U. Neither the execution and delivery hereof by the Borrower, nor
the
performance by it of any of the transactions contemplated by this Agreement
(including the direct or indirect use of the proceeds of the Loans) will violate
or result in a violation of the Securities Act of 1933, as amended, or the
Securities Exchange Act of 1934, as amended, or regulations issued pursuant
thereto, or Regulation T, U, or X.
REPRESENTATIONS
AND WARRANTIES OF THE GUARANTORS
Each
of
the Guarantors separately represents and warrants that:
6.01
Corporate
Existence and Power.
(a) Such
Guarantor is a corporation (sociedad
anónima de capital variable)
duly
incorporated, validly existing and in good standing under the laws of Mexico
and
has all requisite corporate power and authority (including all governmental
licenses, permits and other approvals except for such licenses, permits and
approvals the absence of which will not have a Material Adverse Effect) to
own
its assets and carry on its business as now conducted.
(b) All
of
the outstanding stock of such Guarantor has been validly issued and is fully
paid and non-accessible.
6.02
Power
and Authority; Enforceable Obligations.
(a) The
execution, delivery and performance by such Guarantor of each Transaction
Document to which it is or will be a party, and the consummation of the
transactions contemplated hereby and thereby, are within such Guarantor’s
corporate powers and have been duly authorized by all necessary corporate action
pursuant to the estatutos
sociales
of such
Guarantor.
(b) This
Agreement and the other Transaction Documents to which such Guarantor is a
party
have been duly executed and delivered by such Guarantor and constitute legal,
valid and binding obligations of such Guarantor enforceable in accordance with
their respective terms, except as enforceability may be limited by applicable
concurso
mercantil,
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors’ rights generally or general equity principles.
6.03
Compliance
with Law and Other Instruments.
The
execution, delivery and performance of this Agreement and any of the other
Transaction Documents to which such Guarantor is a party and the consummation
of
the transactions herein or therein contemplated, and compliance with the terms
and provisions hereof and thereof, do not and will not (a) conflict with, or
result in a breach or violation of, or constitute a default under, or result
in
the creation or imposition of any Lien upon the assets of such Guarantor
pursuant to, any Contractual Obligation of such Guarantor or (b) result in
any
violation of the estatutos
sociales
of such
Guarantor or any provision of any Requirement of Law applicable to such
Guarantor.
6.04
Consents/Approvals.
No
order, permission, consent, approval, license, authorization, registration
or
validation of, or notice to or filing with, or exemption by, any Governmental
Authority or third party is required to authorize, or is required in connection
with, the execution, delivery and performance by such Guarantor of this
Agreement and the other Transaction Documents to which such Guarantor is a
party
or the taking of any action contemplated hereby or by any other Transaction
Document.
6.05
Litigation.
Except
as set forth in Schedule 6.05,
there
is no pending or threatened action, suit, investigation, litigation or
proceeding, including any Environmental Action, affecting the Borrower or any
of
its Subsidiaries before any court, Governmental Authority or arbitrator that
(i)
would be reasonably likely to have a Material Adverse Effect or (ii) purports
to
affect the legality, validity or enforceability of any Transaction Document
or
the consummation of the transactions contemplated thereby, and there has been
no
material adverse change in the status, or financial effect on the Borrower
or
any of its Subsidiaries which would reasonably be expected to have a Material
Adverse Effect on the Borrower and its Subsidiaries taken as a whole, of the
litigation described in Schedule
6.05.
6.06
No
Immunity.
Such
Guarantor is subject to civil and commercial law with respect to its obligations
under this Agreement and each other Transaction Document to which it is a party
and the execution, delivery and performance of this Agreement or any such other
Transaction Document by such Guarantor constitute private and commercial acts
rather than public or governmental acts. Under the laws of Mexico neither such
Guarantor nor any of its property has any immunity from jurisdiction of any
court or any legal process (whether through service or notice, attachment prior
to judgment or attachment in aid of execution).
6.07
Governmental
Regulations.
Such
Guarantor is not, and is not controlled by, (a) an “investment
company”
within
the meaning of the United States Investment Company Act of 1940, as amended
or
(b) a “holding
company”,
or a
“subsidiary
company”
of
a
“holding
company”,
or an
“affiliate”
of
a
“holding
company”
or
of a
“subsidiary”
of
a
“holding
company”,
within
the meaning of the Public Utility Holding Company Act of 1935, as
amended.
6.08
Direct
Obligations; Pari Passu.
(a) This
Agreement constitutes a direct, unconditional unsubordinated and unsecured
obligation of such Guarantor.
(b) The
obligations of such Guarantor under this Agreement rank and will rank in
priority of payment at least pari passu with all other senior unsecured Debt
of
such Guarantor.
6.09
No
Recordation Necessary.
This
Agreement is in proper legal form under the law of Mexico for the enforcement
thereof against such Guarantor under the law of Mexico. To ensure the legality,
validity, enforceability or admissibility in evidence of this Agreement and
each
other Transaction Document in Mexico, it is not necessary that this Agreement
or
any other Transaction Document be filed or recorded with any Governmental
Authority in Mexico or that any stamp or similar tax be paid on or in respect
of
this Agreement or any other document to be furnished under this Agreement unless
such stamp or similar taxes have been paid by the Borrower or the Guarantors;
provided,
however,
that in
the event any legal proceedings are brought in the courts of Mexico, an official
Spanish translation of the documents required in such proceedings, including
this Agreement, would have to be approved by the court after the defendant
is
given an opportunity to be heard with respect to the accuracy of the
translation, and proceedings would thereafter be based upon the translated
documents.
6.10
Choice
of Law; Submission to Jurisdiction and Waiver of Sovereign
Immunity.
In any
action or proceeding involving such Guarantor arising out of or relating to
this
Agreement in any Mexican court or tribunal, the Lenders, the Joint Bookrunners
and the Administrative Agent would be entitled to the recognition and
effectiveness of the choice of law, submission to jurisdiction and waiver of
sovereign immunity provisions of Sections
13.10,
13.11
and
13.13
hereof.
AFFIRMATIVE
COVENANTS
The
Borrower covenants and agrees that for so long as any Obligation under this
Agreement or any other Transaction Document remains unpaid or any Lender has
any
Commitment hereunder:
7.01
Financial
Reports and Other Information.
The
Borrower will deliver to the Administrative Agent (with a copy for each
Lender):
(a) as
soon
as available and in any event within 120 days after the end of each fiscal
year
of the Borrower, a copy of the annual audit report for such year for the
Borrower and its Subsidiaries containing consolidated and consolidating balance
sheets of the Borrower and its Subsidiaries, as of the end of such fiscal year
and consolidated statements of income and cash flows of the Borrower and its
Subsidiaries, for such fiscal year, in each case accompanied by an opinion
acceptable to the Required Lenders by KPMG ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, S.C. or other
independent public accountants of recognized standing acceptable to the Required
Lenders, together with (i) a certificate of such accounting firm to the Lenders
stating that in the course of the regular audit of the business of the Borrower
and its Subsidiaries, which audit was conducted by such accounting firm in
accordance with Mexican GAAP, such accounting firm has obtained no knowledge
that a Default or Event of Default has occurred and is continuing, or if, in
the
opinion of such accounting firm a Default or Event of Default has occurred
and
is continuing, a statement as to the nature thereof and (ii) a certificate
of a
Responsible Officer of the Borrower, stating that no Default or Event of Default
has occurred and is continuing or, if a Default or Event of Default has occurred
and is continuing, a statement as to the nature thereof and the action that
the
Borrower has taken and proposes to take with respect thereto; provided
that in
the event of any change in the Mexican GAAP used in the preparation of such
financial statements, the Borrower shall also provide, for informational
purposes only, a statement of reconciliation conforming such financial
statements to Mexican GAAP consistent with those applied in the preparation
of
the financial statements referred to in Section
5.05
and
provided
further
that all
such documents will be prepared in English; and
(b) as
soon
as available and in any event within 60 days after the end of each of the first
three quarters of each fiscal year of the Borrower, consolidated balance sheets
of the Borrower and its Subsidiaries, as of the end of such quarter and
consolidated statements of income and cash flows of the Borrower and its
Subsidiaries for the period commencing at the end of the previous fiscal year
and ending with the end of such quarter, duly certified (subject to year-end
audit adjustments) by any Responsible Officer of the Borrower as having been
prepared in accordance with Mexican GAAP and together with a certificate of
a
Responsible Officer of the Borrower, as to compliance with the terms of this
Agreement and stating that no Default or Event of Default has occurred and
is
continuing or, if a Default or Event of Default has occurred and is continuing,
a statement as to the nature thereof and the action that the Borrower has taken
and proposes to take with respect thereto; provided
that in
the event of any change in the Mexican GAAP used in the preparation of such
financial statements, the Borrower shall also provide, for informational
purposes only, a statement of reconciliation conforming such financial
statements to Mexican GAAP consistent with those applied in the preparation
of
the financial statements referred to in Section
5.05
and
provided further that all such documents will be prepared in
English.
7.02
Notice
of Default and Litigation.
The
Borrower will furnish to the Administrative Agent (and the Administrative Agent
will notify each Lender):
(a) as
soon
as practicable and in any event within five days after the occurrence of each
Default or Event of Default continuing on the date of such statement, a
statement of the chief financial officer of the Borrower setting forth details
of such Default or Event of Default and the action that the Borrower has taken
and proposes to take with respect thereto; and
(b) promptly
after the commencement thereof, notice of all litigation, actions,
investigations and proceedings before any court, Governmental Authority or
arbitrator affecting the Borrower or any of its Subsidiaries of the type
described in Section
5.06
or the
receipt of written notice by the Borrower or any of its subsidiaries of
potential liability or responsibility for violation, or alleged violation of
any
federal, state or local law, rule or regulation (including but not limited
to
Environmental Laws) the violation of which could reasonably be expected to
have
a Material Adverse Effect.
7.03
Compliance
with Laws and Contractual Obligations, Etc.
The
Borrower will comply, and cause each of its Subsidiaries to comply, in all
material respects, with all applicable Requirements of Law (including with
respect to the licenses, approvals, certificates, permits, franchises, notices,
registrations and other governmental authorizations necessary to the ownership
of its respective properties or to the conduct of its respective business,
antitrust laws or Environmental Laws and laws with respect to social security
and pension funds obligations) and all material Contractual Obligations, except
where the failure to so comply could not reasonably be expected to have a
Material Adverse Effect.
7.04
Payment
of Obligations.
The
Borrower will pay and discharge, and cause each of its Subsidiaries to pay
and
discharge, before the same shall become delinquent, (a) all taxes, assessments
and governmental charges or levies assessed, charged or imposed upon it or
upon
its property and (b) all lawful claims that, if unpaid, might by law become
a
Lien upon its property, except where the failure to make such payments or effect
such discharges could not reasonably be expected to have a Material Adverse
Effect; provided,
however,
that
neither the Borrower nor any of its Subsidiaries shall be required to pay or
discharge or cause to be paid or discharged any such tax, assessment, charge
or
claim that is being contested in good faith and by proper proceedings and as
to
which appropriate reserves are being maintained, unless and until any Lien
resulting therefrom attaches to its property and becomes enforceable against
its
other creditors.
7.05
Maintenance
of Insurance.
The
Borrower will maintain, and cause each of its Subsidiaries to maintain,
insurance with reputable insurance companies or associations in such amounts
and
covering such risks as is usually carried by companies of established reputation
engaged in similar businesses and owning similar properties in the same general
areas in which the Borrower or such Subsidiary operates.
7.06
Conduct
of Business and Preservation of Corporate Existence.
The
Borrower will continue to engage in business of the same general type as now
conducted by the Borrower and will preserve and maintain, and cause each of
its
Material Subsidiaries to preserve and maintain, its corporate existence, rights
(charter and statutory), licenses, consents, permits, notices or approvals
and
franchises deemed material to its business; provided
that
neither the Borrower nor any of its Subsidiaries shall be required to maintain
its corporate existence in connection with a merger or consolidation in
compliance with Section
8.02;
and
provided,
further
that
neither the Borrower nor any of its Subsidiaries shall be required to preserve
any right or franchise if the Borrower or any such Subsidiary shall in its
good
faith judgment, determine that the preservation thereof is no longer in the
best
interests of the Borrower or such Subsidiary, as the case may be, and that
the
loss thereof could not reasonably be expected to have a Material Adverse
Effect.
7.07
Books
and Records.
The
Borrower will keep, and cause each of its Subsidiaries to keep, proper books
of
record and account, in which full and correct entries shall be made of all
financial transactions and the assets and business of the Borrower and each
such
Subsidiary in accordance with Mexican GAAP, consistently applied.
7.08
Maintenance
of Properties, Etc.
The
Borrower will:
(a) maintain
and preserve, and cause each of its Subsidiaries to maintain and preserve,
all
of its properties that are used or useful in the conduct of its business in
good
working order and condition, ordinary wear and tear excepted, and
(b) maintain,
preserve and protect all intellectual property and all necessary governmental
and third party approvals, franchises, licenses and permits, material to the
business of the Borrower or its Subsidiaries, provided neither paragraph (a)
nor
this paragraph (b) shall prevent the Borrower or any of its Subsidiaries from
discontinuing the operation and maintenance of any of its properties or allowing
to lapse certain approvals, licenses or permits which discontinuance is
desirable in the conduct of its business and which discontinuance could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
7.09
Use
of
Proceeds.
The
Borrower will use the proceeds of all Loans made hereunder to refinance the
Existing Credit Agreements in the event that the Amendment and Waiver Agreements
are not entered into. Once the Aggregate Committed Amount has been reduced
to
U.S.$1,000,000,000 in accordance with the terms hereof, the Borrower shall
apply
all amounts borrowed by it under this Agreement towards the
following:
(a) for
general corporate purposes of the Borrower and its Subsidiaries;
(b) to
finance (i) the consideration payable for the shares in the Target under the
Tender Offer; (ii) the purchase price for the shares in the Target acquired
under the compulsory acquisition procedures of Australian companies law; and
(iii) the acquisition of any American depository receipts relating to shares
in
the Target in accordance with United States securities laws and
regulations;
(c) to
finance the consideration payable to holders of options to acquire shares in
the
Target pursuant to any proposal in respect of those options as required by
Australian companies law, or in accordance with the bylaws of the Target or
pursuant to any resolution of the board of directors of the Target or any
relevant pension or employment benefit plan administrators;
(d) to
refinance indebtedness of the Borrower and/or its Subsidiaries, including the
refinancing of indebtedness of the Target and its Subsidiaries outstanding
at
the time of the acquisition of the Target shares pursuant to the Tender Offer;
(e) to
finance the payment of any fees, costs and expenses (including any Tax thereon)
and stamp duty, registration and other similar Taxes incurred by any member
of
the Group in relation to the Tender Offer; and/or
(f) to
pay
fees and expenses related to this Agreement.
7.10
Pari
Passu Ranking.
The
Borrower will ensure that at all times the Obligations of the Borrower and
each
of the Guarantors under the Transaction Documents constitute unconditional
general obligations of such Obligor ranking in priority of payment at least
pari
passu with all other senior unsecured, unsubordinated Debt of such Obligor,
except where the claims of the provider of other senior unsecured,
unsubordinated Debt are mandatorily preferred by law of general application
to
the Obligors.
7.11
Transactions
with Affiliates.
The
Borrower will conduct, and cause each of its Subsidiaries to conduct, all
transactions otherwise permitted under this Agreement with any of its Affiliates
on terms that are commercially reasonable and no less favorable to the Borrower
or such Subsidiary than it would obtain in a comparable arm’s-length transaction
with a Person that is not an Affiliate.
7.12
Maintenance
of Governmental Approvals.
The
Borrower will maintain in full force and effect at all times all approvals
of
and filings with any Governmental Authority or third Party required under
applicable law for the conduct of its business (including, without limitation,
antitrust laws or Environmental Laws) and the performance of the Obligors’
obligations hereunder and under the other Transaction Documents by the Borrower
and/or the Guarantors, as applicable, and for the validity or enforceability
hereof and thereof, except where failure to maintain any such approvals or
filings could not reasonably be expected to have a Material Adverse
Effect.
7.13
Inspection
of Property.
At any
reasonable time during normal business hours and from time to time with at
least
ten Business Days’ prior notice, or at any time if an Event of Default shall
have occurred and be continuing, permit the Administrative Agent or any of
the
Lenders or any agents or representatives thereof to examine and make abstracts
from the records and books of account of, and visit the properties of, each
of
the Borrower or the Guarantors, and to discuss the affairs, finances and
accounts of the Borrower or such Guarantor with any of its officers or directors
and with its independent certified public accountants. All expenses associated
with such inspection shall be borne by the inspecting Lenders; provided
that if
an Event of Default shall have occurred and be continuing, any expenses
associated with such inspection shall be borne jointly and severally by the
Borrower and the Guarantors.
NEGATIVE
COVENANTS
The
Borrower covenants and agrees that for so long as any Obligation under this
Agreement or any other Transaction Document remains unpaid or any Lender has
any
Commitment hereunder:
8.01
Liens.
The
Borrower shall not, and shall not permit any of its Subsidiaries to, directly
or
indirectly, create, incur, assume or permit to exist any Lien on or with respect
to any property or asset of the Borrower or any Subsidiary, whether now owned
or
held or hereafter acquired, other than the following Liens (“Permitted
Liens”):
(a) Liens
for
Taxes, assessments and other governmental charges the payment of which is being
contested in good faith by appropriate proceedings promptly initiated and
diligently conducted and for which such reserves or other appropriate provision,
if any, as shall be required by Mexican GAAP shall have been made;
(b) statutory
Liens of landlords and Liens of carriers, warehousemen, mechanics and
materialmen incurred in the ordinary course of business for sums not yet due
or
the payment of which is being contested in good faith by appropriate proceedings
promptly initiated and diligently conducted and for which such reserves or
other
appropriate provision, if any, as shall be required by Mexican GAAP shall have
been made;
(c) Liens
incurred or deposits made in the ordinary course of business in connection
with
workers’ compensation, unemployment insurance and other types of social
security;
(d) any
attachment or judgment Lien, unless the judgment it secures shall not, within
60
days after the entry thereof, have been discharged or execution thereof stayed
pending appeal, or shall not have been discharged within 60 days after the
expiration of any such stay;
(e) Liens
existing on the date of this Agreement as described in Schedule 8.01(e)
hereto;
(f) any
Lien
on property acquired by the Borrower after the date hereof that was existing
on
the date of acquisition of such property; provided
that
such Lien was not incurred in anticipation of such acquisition, and any Lien
created to secure all or any part of the purchase price, or to secure Debt
incurred or assumed to pay all or any part of the purchase price, of property
acquired by the Borrower or any of its Subsidiaries after the date hereof;
provided,
further,
that
(A) any such Lien permitted pursuant to this clause (f) shall be confined solely
to the item or items of property so acquired (including, in the case of any
Acquisition of a corporation through the acquisition of 51% or more of the
voting stock of such corporation, the stock and assets of any Acquired
Subsidiary or Acquiring Subsidiary) and, if required by the terms of the
instrument originally creating such Lien, other property which is an improvement
to, or is acquired for specific use with, such acquired property; and (B) if
applicable, any such Lien shall be created within nine months after, in the
case
of property, its acquisition, or, in the case of improvements, their
completion;
(g) any
Lien
renewing, extending or refunding any Lien permitted by clause (f) above;
provided
that the
principal amount of Debt secured by such Lien immediately prior thereto is
not
increased or the maturity thereof reduced and such Lien is not extended to
other
property;
(h) any
Liens
created on shares of Capital Stock of the Borrower or any of its Subsidiaries
solely as a result of the deposit or transfer of such shares into a trust or
a
special purpose vehicle (including any entity with legal personality) of which
such shares constitute the sole assets; provided
that (A)
any shares of Subsidiary stock held in such trust, corporation or entity could
be sold by the Borrower; and (B) proceeds from the deposit or transfer of such
shares into such trust, corporation or entity and from any transfer of or
distributions in respect of the Borrower’s or any Subsidiary’s interest in such
trust, corporation or entity are applied as provided under Section
8.03;
and
provided,
further,
that
such Liens may not secure Debt of the Borrower or any Subsidiary (unless
permitted under another clause of this Section
8.01);
(i) any
Liens
on securities securing repurchase obligations in respect of such
securities;
(j) any
Liens
created pursuant to a Qualified Receivables Transaction;
(k) any
Liens
over the property or assets of Bidco created by or arising in connection with
the Tender Offer;
(l) any
Liens
on Margin Stock, if and to the extent the value of all Margin Stock of the
Borrower and its Subsidiaries exceeds 25% of the value of the total assets
of
the Borrower and its Subsidiaries; and
(m) in
addition to the Liens permitted by the foregoing clauses (a) through (k) (but
including any Liens permitted solely by clause (l) above), Liens securing Debt
of the Borrower and its Subsidiaries (taken as a whole) not in excess of 5%
of
the Adjusted Consolidated Net Tangible Assets of the Borrower and its
Subsidiaries;
unless,
in each case, the Borrower has made or caused to be made effective provision
whereby the Obligations hereunder are secured equally and ratably with, or
prior
to, the Debt secured by such Liens (other than Permitted Liens) for so long
as
such Debt is so secured.
8.02
Consolidations
and Mergers.
None of
the Guarantors nor the Borrower shall, in one or more related transactions,
(x)
consolidate with or merge into any other Person or permit any other Person
to
merge into it or (y), directly or indirectly, transfer, convey, sell, lease
or
otherwise dispose of all or substantially all of its properties or assets to
any
Person, unless, with respect to any transaction described in clause (x) or
(y),
immediately after giving effect to such transaction:
(a) the
Person formed by any such consolidation or merger, if it is not the Borrower
or
such Guarantor, or the Person that acquires by transfer, conveyance, sale,
lease
or other disposition all or substantially all of the properties and assets
of
the Borrower or such Guarantor (any such Person, a “Successor”)
(i)
shall be a corporation organized and validly existing under the laws of its
place of incorporation, which in the case of a Successor to the Borrower shall
be Mexico, the United States, Australia, Canada, France, Belgium, Germany,
Italy, Luxembourg, the Netherlands, Portugal, Spain, Switzerland or the United
Kingdom, or any political subdivision thereof, (ii) in the case of a Successor
to the Borrower, shall expressly assume, pursuant to a written agreement in
form
and substance satisfactory to the Required Lenders, the Obligations of the
Borrower pursuant to this Agreement and the performance of every covenant on
the
part of the Borrower to be performed and observed and (iii) in the case of
a
Successor to any Guarantor, shall expressly assume, pursuant to a written
agreement in form and substance satisfactory to the Required Lenders, the
performance of every covenant of this Agreement on the part of such Guarantor
to
be performed and observed;
(b) in
the
case of any such transaction involving the Borrower or any Guarantor, the
Borrower or such Guarantor, or the Successor of any thereof, as the case may
be,
shall expressly agree to indemnify each Lender and the Administrative Agent
against any tax, levy, assessment or governmental charge payable by withholding
or deduction thereafter imposed on such Lender and/or the Administrative Agent
solely as a consequence of such transaction with respect to payments under
the
Transaction Documents;
(c) immediately
after giving effect to such transaction, including for purposes of this clause
(c) the substitution of any Successor to the Borrower for the Borrower or the
substitution of any Successor to a Guarantor for such Guarantor and treating
any
Debt or Lien incurred by the Borrower or any Successor to the Borrower, or
by a
Guarantor of the Borrower or any Successor to such Guarantor, as a result of
such transactions as having been incurred at the time of such transaction,
no
Default or Event of Default shall have occurred and be continuing;
and
(d) the
Borrower shall have delivered to the Administrative Agent an officer’s
certificate and an opinion of counsel (such counsel to be chosen by the Borrower
in its absolute discretion), each stating that such consolidation, merger,
conveyance, transfer or lease and, if a written agreement is required in
connection with such transaction, such written agreement comply with the
relevant provisions of this Article
VIII
and that
all conditions precedent provided for in this Agreement relating to such
transaction have been complied with.
8.03
Sales
of Assets, Etc.
(a)
Subject
to paragraph (b) of this Section
8.03,
the
Borrower shall not (and the Borrower shall ensure that none of its Subsidiaries
and none of Bidco and its Subsidiaries shall), without the prior written consent
of the Required Lenders (such consent not to be unreasonably withheld or
delayed), enter into a single transaction or a series of transactions (whether
related or not) and whether voluntary or involuntary to sell, lease, transfer
or
otherwise dispose of all its assets or a substantial part of its assets
representing more than five per cent in aggregate of the total consolidated
assets of the Borrower and its Subsidiaries, calculated by reference to the
latest consolidated financial statements of the Borrower, delivered pursuant
to
Section
7.01(a),
unless
(i) full value for such assets is received by the Borrower or its Material
Subsidiaries; and (ii) an amount equal to the net proceeds of any such sale,
lease, transfer or other disposal is reinvested within twelve months of receipt
by the Borrower or its Material Subsidiaries in the business of the Borrower
and
its Subsidiaries;
(b) Paragraph
(a) of this Section
8.03
does not
apply to any sale, lease, transfer or other disposal of assets:
|
(i)
|
made
on arm's length terms and for fair market value in the ordinary course
of
business of the disposing entity;
|
|
(ii)
|
in
respect of any Qualified Receivables
Transaction;
|
|
(iii)
|
from
the Borrower or any of its Subsidiaries to the Borrower or any of
its
Subsidiaries on arm's length terms and for fair market or book value,
provided
that the exception contained in this paragraph (iii) shall not apply
to
any sale, lease, transfer or other disposal of an
asset:
|
|
(1)
|
from
any Obligor to the Borrower or any of its Subsidiaries which is neither
an
Obligor nor a subsidiary of an Obligor unless the person to whom
such
sale, lease, transfer or other disposal is made (the "Transferee")
or its direct or indirect parent company (as the case may be) becomes
a
Guarantor; or
|
|
(2)
|
from
any Material Subsidiary to the Borrower or any of its Subsidiaries
which
is not a Material Subsidiary unless the person making such sale,
lease,
transfer or other disposal does not cease to be a Material Subsidiary
or,
if it ceases to be a Material Subsidiary, any Transferee shall be
deemed
to be a Material Subsidiary;
|
|
(iv)
|
in
respect of which the net proceeds are used to repay any amounts
outstanding hereunder in an amount equal to such net proceeds and
if the
Available Commitments in an amount equal thereto are
cancelled;
|
|
(v)
|
in
respect of which the proceeds are applied pursuant to any prepayment
requirement in any debt agreements of the Borrower or any Subsidiary
in
relation to the use of proceeds received from the disposal of any
assets;
|
|
(vi)
|
in
respect of fixed assets or contractual rights which are exchanged
for
other fixed assets or contractual rights reasonably comparable as
to type
or quality;
|
|
(vii)
|
in
respect of cash or cash equivalent
investments;
|
|
(viii)
|
which
occurs due to the solvent liquidation or reorganization of the Borrower
or
any of its Subsidiaries so long as any payment or assets distributed
as a
result of such liquidation or reorganization are distributed to the
Borrower or any of its
Subsidiaries;
|
|
(ix)
|
pursuant
to any joint venture agreements or arrangements existing with respect
to
the Target and its Subsidiaries on the date (if any) on which the
Target
becomes a Subsidiary of the Borrower (and any replacements or renewals
of
such agreements or arrangements with respect to such joint ventures
on
substantially similar terms and with only the Persons to which such
agreements or arrangements related on such date) and pursuant to
any Law
or U.S. Governmental Authority and/or in connection with any sale
of
assets of the Target or any of its Subsidiaries that are not strategic
to
the business of the Borrower and its Subsidiaries;
or
|
| (x) | any Margin Stock acquired by the Borrower through the Tender Offer. |
8.04
Change
in Nature of Business.
The
Borrower shall not make, or permit any of its Material Subsidiaries to make,
any
material change in the nature of its business as carried on at the date
hereof.
8.05
Margin
Regulations.
The
Borrower shall not use any part of the proceeds of the Loans for any purpose
which would result in any violation (whether by the Borrower, any Guarantor,
the
Administrative Agent or the Lenders) of Regulation T, U or X of the Federal
Reserve Board or to extend credit to others for any such purpose, or engage
in,
or maintain as one of its important activities, the business of extending credit
for the purpose of purchasing or carrying any Margin Stock.
OBLIGATIONS
OF GUARANTORS
9.01
The
Guaranty.
Each of
the Guarantors jointly and severally hereby unconditionally and irrevocably
guarantee (as a primary obligor and not merely as surety) payment in full as
provided herein of all Obligations payable by the Borrower to each Lender,
the
Administrative Agent and the Joint Bookrunners under this Agreement and the
other Transaction Documents and the Fee Letters, as and when such amounts become
payable (whether at stated maturity, by acceleration or otherwise).
9.02
Nature
of Liability.
The
obligations of the Guarantors hereunder are guarantees of payment and shall
remain in full force and effect until all Obligations of the Borrower have
been
validly, finally and irrevocably paid in full and all Commitments have been
terminated, and shall not be affected in any way by the absence of any action
to
obtain such amounts from the Borrower or by any variation, extension, waiver,
compromise or release of any or all Obligations from time to time therefor.
Each
Guarantor waives all requirements as to promptness, diligence, presentment,
demand for payment, protest and notice of any kind with respect to this
Agreement and the other Transaction Documents.
9.03
Unconditional
Obligations.
Notwithstanding any contrary principles under the laws of any jurisdiction
other
than the State of New York, the obligations of each of the Guarantors hereunder
shall be unconditional, irrevocable and absolute and, without limiting the
generality of the foregoing, shall not be impaired, terminated, released,
discharged or otherwise affected by the following:
(a) the
existence of any claim, set-off or other right which either of the Guarantors
may have at any time against the Borrower, the Administrative Agent, any Lenders
or any other Person, whether in connection with this transaction or with any
unrelated transaction;
(b) any
invalidity or unenforceability of this Agreement or any other Transaction
Document relating to or against the Borrower or either of the Guarantors for
any
reason;
(c) any
provision of applicable law or regulation purporting to prohibit the payment
by
the Borrower of any amount payable by the Borrower under this Agreement or
any
of the other Transaction Documents or the payment, observance, fulfillment
or
performance of any other Obligations;
(d) any
change in the name, purposes, business, capital stock (including the ownership
thereof) or constitution of the Borrower;
(e) any
amendment, waiver or modification of any Transaction Document in accordance
with
the terms hereof and thereof; or
(f) any
other
act or omission to act or delay of any kind by the Borrower, the Administrative
Agent, the Lenders or any other Person or any other circumstance whatsoever
which might otherwise constitute a legal or equitable discharge of or defense
to
either of the Guarantors’ obligations hereunder.
9.04
Independent
Obligation.
The
obligations of each of the Guarantors hereunder are independent of the
Borrower’s obligations under the Transaction Documents and of any guaranty or
security that may be obtained for the Obligations. The Administrative Agent
and
the Lenders may neglect or forbear to enforce payment hereunder, under any
Transaction Document or under any guaranty or security, without in any way
affecting or impairing the liability of each Guarantor hereunder. The
Administrative Agent or the Lenders shall not be obligated to exhaust recourse
or take any other action against the Borrower or under any agreement to purchase
or security which the Administrative Agent or the Lenders may hold before being
entitled to payment from the Guarantors of the obligations hereunder or proceed
against or have resort to any balance of any deposit account or credit on the
books of the Administrative Agent or the Lenders in favor of the Borrower or
each of the Guarantors. Without limiting the generality of the foregoing, the
Administrative Agent or the Lenders shall have the right to bring suit directly
against either of the Guarantors, either prior or subsequent to or concurrently
with any lawsuit against, or without bringing suit against, the Borrower and/or
the other Guarantor.
9.05
Waiver
of Notices.
Each of
the Guarantors hereby waives notice of acceptance of this Article
IX
and
notice of any liability to which it may apply, and waives presentment, demand
for payment, protest, notice of dishonor or nonpayment of any such liability,
suit or the taking of other action by the Administrative Agent or the Lenders
against, and any other notice, to the Guarantors.
9.06
Waiver
of Defenses.
To the
extent permitted by New York law and notwithstanding any contrary principles
under the laws of any other jurisdiction, each of the Guarantors hereby waives
any and all defenses to which it may be entitled, whether at common law, in
equity or by statute which limits the liability of, or exonerates, guarantors
or
which may conflict with the terms of this Article
IX,
including failure of consideration, breach of warranty, statute of frauds,
merger or consolidation of the Borrower, statute of limitations, accord and
satisfaction and usury. Without limiting the generality of the foregoing, each
of the Guarantors consents that, without notice to such Guarantor and without
the necessity for any additional endorsement or consent by such Guarantor,
and
without impairing or affecting in any way the liability of such Guarantor
hereunder, the Administrative Agent and the Lenders may at any time and from
time to time, upon or without any terms or conditions and in whole or in part,
(a) change the manner, place or terms of payment of, and/or change or extend
the
time or payment of, renew or alter, any of the Obligations, any security
therefor, or any liability incurred directly or indirectly in respect thereof,
and this Article
IX
shall
apply to the Obligations as so changed, extended, renewed or altered; (b)
exercise or refrain from exercising any right against the Borrower or others
(including the Guarantors) or otherwise act or refrain from acting, (c) settle
or compromise any of the Obligations, any security therefor or any liability
(including any of those hereunder) incurred directly or indirectly in respect
thereof or hereof, and may subordinate the payment of all or any part thereof
to
the payment of any such liability (whether due or not) of the Borrower to
creditors of the Borrower other than the Administrative Agent and the Lenders
and the Guarantors, (d) apply any sums by whomsoever paid or howsoever realized,
other than payments of the Guarantors of the Obligations, to any liability
or
liabilities of the Borrower under the Transaction Documents or any instruments
or agreements referred to herein or therein, to the Administrative Agent and
the
Lenders regardless of which of such liability or liabilities of the Borrower
under the Transaction Documents or any instruments or agreements referred to
herein or therein remain unpaid; (e) consent to or waive any breach of, or
any
act, omission or default under the Obligations or any of the instruments or
agreements referred to in this Agreement and the other Transaction Documents,
or
otherwise amend, modify or supplement the Obligations or any of such instruments
or agreements, including the Transaction Documents; and/or (f) request or accept
other support of the Obligations or take and hold any security for the payment
of the Obligations or the obligations of the Guarantors under this Article
IX,
or
allow the release, impairment, surrender, exchange, substitution, compromise,
settlement, rescission or subordination thereof.
9.07
Bankruptcy
and Related Matters.
(a) So
long
as any of the Obligations remain outstanding, each of the Guarantors shall
not,
without the prior written consent of the Administrative Agent (acting with
the
consent of the Required Lenders), commence or join with any other Person in
commencing any bankruptcy, liquidation, reorganization, concurso
mercantil or
insolvency proceedings of, or against, the Borrower.
(b) If
acceleration of the time for payment of any amount payable by the Borrower
under
this Agreement or the Notes is stayed upon the insolvency, bankruptcy,
reorganization,
concurso mercantil
or any
similar event of the Borrower or otherwise, all such amounts otherwise subject
to acceleration under the terms of this Agreement shall nonetheless be payable
by the Guarantors hereunder forthwith on demand by the Administrative Agent
made
at the request of the Lenders.
(c) The
obligations of each of the Guarantors under this Article
IX
shall
not be reduced, limited, impaired, discharged, deferred, suspended or terminated
by any proceeding or action, voluntary or involuntary, involving the bankruptcy,
insolvency, concurso
mercantil,
receivership, reorganization, marshalling of assets, assignment for the benefit
of creditors, readjustment, liquidation or arrangement of the Borrower or
similar proceedings or actions or by any defense which the Borrower may have
by
reason of the order, decree or decision of any court or administrative body
resulting from any such proceeding or action. Without limiting the generality
of
the foregoing, the Guarantors’ liability shall extend to all amounts and
obligations that constitute the Obligations and would be owed by the Borrower
but for the fact that they are unenforceable or not allowable due to the
existence of any such proceeding or action.
(d) Each
of
the Guarantors acknowledges and agrees that any interest on any portion of
the
Obligations which accrues after the commencement of any proceeding or action
referred to above in Section
9.07(c)
(or, if
interest on any portion of the Obligations ceases to accrue by operation of
law
by reason of the commencement of said proceeding or action, such interest as
would have accrued on such portion of the Obligations if said proceedings or
actions had not been commenced) shall be included in the Obligations, it being
the intention of the Guarantors, the Administrative Agent, and the Lenders
that
the Obligations which are to be guaranteed by the Guarantors pursuant to this
Article
IX
shall be
determined without regard to any rule of law or order which may relieve the
Borrower of any portion of such Obligations. The Guarantors will take no action
to prevent any trustee in bankruptcy, receiver, debtor in possession, assignee
for the benefit of creditors or similar person from paying the Administrative
Agent, or allowing the claim of the Administrative Agent, for the benefit of
the
Administrative Agent, and the Lenders, in respect of any such interest accruing
after the date of which such proceeding is commenced, except to the extent
any
such interest shall already have been paid by the Guarantors.
(e) Notwithstanding
anything to the contrary contained herein, if all or any portion of the
Obligations are paid by or on behalf of the Borrower, the obligations of the
Guarantors hereunder shall continue and remain in full force and effect or
be
reinstated, as the case may be, in the event that all or any part of such
payment(s) are rescinded or recovered, directly or indirectly, from the
Administrative Agent and/or the Lenders as a preference, preferential transfer,
fraudulent transfer or otherwise, and any such payments which are so rescinded
or recovered shall constitute Obligations for all purposes under this
Article
IX,
to the
extent permitted by applicable law.
9.08
No
Subrogation.
Notwithstanding any payment or payments made by any of the Guarantors hereunder
or any set-off or application of funds of any of the Guarantors by the
Administrative Agent or any Lender, no Guarantor shall be entitled to be
subrogated to any of the rights of the Administrative Agent or any Lender
against the Borrower or any other Guarantor or any collateral security or
guarantee or right of offset held by the Administrative Agent or any Lender
for
the payment of the Obligations, nor shall any Guarantor seek or be entitled
to
seek any contribution or reimbursement from the Borrower or any other Guarantor
in respect of payments made by such Guarantor hereunder, until all amounts
owing
to the Administrative Agent and the Lenders by the Borrower on account of the
Obligations shall have been indefeasibly paid in full in cash. If any amount
shall be paid to any Guarantor on account of such subrogation rights at any
time
when all of the Obligations shall not have been indefeasibly paid in full in
cash, such amount shall be held by such Guarantor in trust for the
Administrative Agent and the Lenders, segregated from other funds of such
Guarantor, and shall, forthwith upon receipt by such Guarantor, be turned over
to the Administrative Agent in the exact form received by such Guarantor (duly
indorsed by such Guarantor to the Administrative Agent, if required), to be
applied against the Obligations, whether matured or unmatured, in such order
as
the Administrative Agent may determine.
9.09
Right
of Contribution.
Subject
to Section
9.08,
each
Guarantor hereby agrees that to the extent that a Guarantor shall have paid
more
than its proportionate share of any payment made hereunder, such Guarantor
shall
be entitled to seek and receive contribution from and against any other
Guarantor hereunder who has not paid its proportionate share of such payment.
The provisions of this Section
9.09
shall in
no respect limit the obligations and liabilities of any Guarantor to the
Administrative Agent, the Joint Bookrunners and the Lenders, and each Guarantor
shall remain liable to the Administrative Agent, the Joint Bookrunners and
the
Lenders for the full amount guaranteed by such Guarantor hereunder.
9.10
General
Limitation on Guaranty.
In any
action or proceeding involving any applicable corporate law, or any applicable
bankruptcy, insolvency, reorganization, concurso
mercantil or
other
law affecting the rights of creditors generally, if the obligations of any
Guarantor under this Section
9.10
would
otherwise, taking into account the provisions of Section 9.09,
be held
or determined to be void, invalid or unenforceable, or subordinated to the
claims of any other creditors, on account of the amount of its liability under
Section
9.01,
then,
notwithstanding any other provision hereof to the contrary, the amount of such
liability shall, without any further action by such Guarantor, any Lender,
the
Administrative Agent or any other Person, be automatically limited and reduced
to the highest amount that is valid and enforceable and not subordinated to
the
claims of other creditors as determined in such action or
proceeding.
9.11
Covenants
of the Guarantors.
Each
Guarantor hereby covenants and agrees that, so long as any Obligations under
this Agreement and any other Transaction Document remain unpaid or any Lender
has any Commitment hereunder, it shall comply with the covenants contained
or
incorporated by reference in this Agreement to the extent applicable to it
as a
Subsidiary of the Borrower.
EVENTS
OF DEFAULT
10.01
Events
of Default.
The
following specified events shall constitute “Events
of Default”
for
the
purposes of this Agreement:
(a) Payment
Defaults.
The
Borrower shall (i) fail to pay any principal of any Loan when due in accordance
with the terms hereof or (ii) fail to pay any interest on any Loan, any fee
or
any other amount payable under this Agreement or any Note within three Business
Days after the same becomes due and payable; or
(b) Representation
and Warranties.
Any
representation or warranty made by the Borrower herein or in any other
Transaction Document or made by either Guarantor herein or which is contained
in
any certificate, document or financial or other statement furnished at any
time
under or in connection with this Agreement or any other Transaction Document,
as
applicable, shall prove to have been incorrect in any material respect on or
as
of the date made if such failure shall remain unremedied for 30 days after
the
earlier of the date on which (i) the chief financial officer of the Borrower
or
such Guarantor, as the case may be, becomes aware of such incorrectness or
(ii)
written notice thereof shall have been given to the Borrower by the
Administrative Agent; or
(c) Specific
Defaults.
The
Borrower or a Guarantor, as applicable, shall fail to perform or observe any
term, covenant or agreement contained in Section
7.01,
7.02(a), 7.06
(with
respect to the Borrower’s and each Guarantor’s existence only), 7.10
or
7.13
or
Article
VIII;
or
(d) Other
Defaults.
The
Borrower or a Guarantor, as applicable, shall fail to perform or observe any
term, covenant or agreement contained in this Agreement or any other Transaction
Document (other than as provided in paragraphs (a) and (c) above) and such
failure shall continue unremedied for a period of 30 days after the earlier
of
the date on which (i) the chief financial officer of the Borrower becomes aware
of such failure or (ii) written notice thereof shall have been given to the
Borrower by the Administrative Agent at the request of any Lender;
or
(e) Defaults
under Other Agreements.
The
occurrence of a default or event of default under any indenture, agreement
or
instrument relating to any Material Debt of the Borrower or any of its
Subsidiaries, and (unless any principal amount of such Material Debt is
otherwise due and payable) such default or event of default results in the
acceleration of the maturity of any principal amount of such Material Debt
prior
to the date on which it would otherwise become due and payable; or
(f) Voluntary
Bankruptcy.
The
Borrower or any Material Subsidiary shall commence a voluntary case or other
proceeding seeking liquidation, reorganization, concurso
mercantil or
other
relief with respect to itself or its debts under any bankruptcy, insolvency,
reorganization or other similar law now or hereafter in effect or seeking the
appointment of a trustee, receiver, liquidator, custodian or other similar
official of it or any substantial part of its property, or shall consent to
any
such relief or to the appointment of or taking possession by any such official
in an involuntary case or other proceeding commenced against it, or shall make
a
general assignment for the benefit of creditors, or shall fail generally to
pay
its debts as they become due, or shall take any corporate action to authorize
any of the foregoing or the equivalent thereof under Mexican law (including
the
Ley
de Concursos Mercantiles)
(but
excluding any proceeding for solvent liquidation/reorganization in the context
outside of insolvency of the Borrower or any of its Subsidiaries solely to
effect a payment or sale or distribution of any assets from a company to its
shareholders, which proceeding is otherwise permitted by this Agreement);
or
(g) Involuntary
Bankruptcy.
An
involuntary case or other proceeding shall be commenced against the Borrower,
any Guarantor or any Material Subsidiary seeking liquidation, reorganization
or
other relief with respect to it or its debts under any bankruptcy, insolvency,
concurso
mercantil or
other
similar law now or hereafter in effect (including but not limited to the
Ley
de Concursos Mercantiles)
or
seeking the appointment of a trustee, receiver, liquidator, custodian or other
similar official of it or any substantial part of its property, and such
involuntary case or other proceeding shall remain undismissed and unstayed
for a
period of 60 consecutive days; or an order for relief shall be entered against
the Borrower, any Guarantor or any Material Subsidiaries under any bankruptcy,
insolvency concurso
mercantil
or other
similar law as now or hereafter in effect; or
(h) Monetary
Judgment.
A final
judgment or judgments or final order or orders not subject to further appeal
for
the payment of money in an aggregate amount in excess of U.S.$50,000,000 shall
be rendered against the Borrower and/or any of its one or more Subsidiaries
that
are neither discharged nor bonded in full within 30 days thereafter;
or
(i) Pari
Passu.
The
Obligations of the Borrower under this Agreement or of any Guarantor under
this
Agreement shall fail to rank at least pari passu with all other senior unsecured
Debt of the Borrower or such Guarantor, as the case may be, except where the
claim of the holder of other senior unsecured unsubordinated Debt is mandatorily
preferred by law of general application to the Obligors; or
(j) Validity
of Agreement.
The
Borrower shall contest the validity or enforceability of any Transaction
Document or shall deny generally the liability of the Borrower under any
Transaction Documents or either Guarantor shall contest the validity of or
the
enforceability of their guarantee hereunder or any obligation of either
Guarantor under Article
IX
hereof
shall not be (or is claimed by either Guarantor not to be) in full force and
effect; or
(k) Governmental
Authority.
Any
governmental or other consent, license, approval, permit or authorization which
is now or may in the future be necessary or appropriate under any applicable
Requirement of Law for the execution, delivery, or performance by the Borrower
or either Guarantor of any Transaction Document to which it is a party or to
make such Transaction Document legal, valid, enforceable and admissible in
evidence shall not be obtained or shall be withdrawn, revoked or modified or
shall cease to be in full force and effect or shall be modified in any manner
that would have an adverse effect on the rights or remedies of the
Administrative Agent or the Lenders; or
(l) Expropriation,
Etc.
Any
Governmental Authority shall condemn, nationalize, seize or otherwise
expropriate all or any substantial portion of the property of, or capital stock
issued or owned by, the Borrower or either Guarantor or take any action that
would prevent the Borrower or either Guarantor from performing its payment
obligations under the Transaction Documents where such action would have a
Material Adverse Effect; or
(m) Moratorium;
Availability of Foreign Exchange.
A
moratorium shall be agreed or declared in respect of any Debt of the Borrower
or
either Guarantor or any restriction or requirement not in effect on the date
hereof shall be imposed, whether by legislative enactment, decree, regulation,
order or otherwise, which limits the availability or the transfer of foreign
exchange by the Borrower or either Guarantor for the purpose of performing
any
material obligation under any Transaction Document to which it is a party;
or
(n) Change
of Ownership or Control.
The
beneficial ownership (within the meaning of Rule 13d-3 promulgated by the
Securities and Exchange Commission under the Securities Exchange Act of 1934,
as
amended) of 20% or more in voting power of the outstanding voting stock of
the
Borrower or either Guarantor is acquired by any Person; provided
that the
acquisition of beneficial ownership of capital stock of the Borrower or either
Guarantor by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ or any member of his immediate family shall
not
constitute an Event of Default.
10.02
Remedies.
If any
Event of Default has occurred and is continuing, the Administrative Agent shall,
at the request of, or may, with the consent of, the Required
Lenders:
(i)
terminate all or a portion of the Commitments;
(ii)
declare by notice to the Borrower the principal amount of all outstanding Loans
to be forthwith due and payable, whereupon such principal amount, together
with
accrued interest thereon and any fees and all other Obligations accrued
hereunder, shall become immediately due and payable, without presentment,
demand, protest or other notice of any kind, all of which are hereby expressly
waived; provided,
however,
that in
the case of any Event of Default specified in Section
10.01(f)
or
(g),
without
notice or any other act by the Lenders or the Administrative Agent, the
Commitments shall be automatically terminated and the Loans (together with
accrued interest thereon) and all other Obligations of the Borrower hereunder
shall become immediately due and payable without presentment, demand, protest
or
other notice of any kind, all of which are hereby waived by the
Borrower;
10.03
Notice
of Default.
The
Administrative Agent shall give notice to the Borrower of any event occurring
under Section
10.01(a),
(b),
(c)
or
(d)
promptly
upon being requested to do so by any Lender and shall thereupon notify all
the
Lenders thereof.
10.04
Default
Interest.
In the
event of default by the Borrower in the payment on the due date of any sum
due
under this Agreement, the Borrower shall pay interest on demand on such sum
from
the date of such default to the day of actual receipt of such sum by the
Administrative Agent (as well after as before judgment) at the rate specified
in
Section
2.02(b).
So long
as the default continues, the default interest rate shall be recalculated on
the
same basis at intervals of such duration as the Administrative Agent may select,
provided that the amount of unpaid interest at the above rate accruing during
the preceding period (or such longer period as may be the shortest period
permitted by applicable law for the capitalization of interest) shall be added
to the amount in respect of which the Borrower is in default.
10.05
Clean-up
Period for Target-Related Defaults.
(a) Notwithstanding
any other terms of this Agreement, during the period commencing on the date
on
which the Borrower acquires control of the Target and expiring 180 days
thereafter (the “Clean-up
Period”),
if
any matter or circumstance that exists in respect of the Target or any of the
Target’s Subsidiaries would constitute (x) a breach of a representation or
warranty made in Articles
V
or
VI,
(y) a
breach of a covenant in Article
VII,
VIII
or
IX
or (z) a
Default or an Event of Default (a “Target-Related
Default”),
then:
(i) promptly
upon becoming aware of its occurrence, the Borrower shall notify the
Administrative Agent of that Target-Related Default and the related event or
circumstance (and the steps, if any, being taken to remedy it); and
(ii) subject
to clause (b) below, during the Clean-up Period such Target-Related Default
shall not constitute a breach of representation or warranty, a breach of a
covenant, a Default or an Event of Default and the Administrative Agent shall
not be entitled to take any action under Section
10.01
solely
upon that Target-Related Default until (if that Target-Related Default is then
continuing) the earlier of (x) the date immediately after the end of the
Clean-up Period; and (y) the date (if any) on which a Material Adverse Effect
occurs or shall have occurred as a result of such Target-Related
Default.
(b) For
the
avoidance of doubt, nothing in this Section
10.05
shall
restrict the Administrative Agent’s and/or Lenders’ rights to take any action
under Section
10.01
with
respect to any Default or Event of Default other than a Target-Related
Default.
THE
ADMINISTRATIVE AGENT
11.01
Appointment
and Authorization.
Each
Lender hereby irrevocably designates and appoints ING Capital LLC as the
Administrative Agent of such Lender under this Agreement, and each Lender hereby
irrevocably authorizes the Administrative Agent to take such action on its
behalf under the provisions of this Agreement and each other Transaction
Document and to exercise such powers and perform such duties as are expressly
delegated to the Administrative Agent by the terms of this Agreement or any
other Transaction Document, together with such other powers as are reasonably
incidental thereto. Notwithstanding any provision to the contrary contained
elsewhere in this Agreement or in any other Transaction Document, the
Administrative Agent shall not have any duties or responsibilities, except
those
expressly set forth herein, nor shall the Administrative Agent have or be deemed
to have any fiduciary relationship with any Lender, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read
into this Agreement or any other Transaction Document or otherwise exist against
the Administrative Agent.
11.02
Delegation
of Duties.
The
Administrative Agent may execute any of its duties under this Agreement or
any
other Transaction Document by or through agents, employees or attorneys-in-fact
and shall be entitled to advice of counsel concerning all matters pertaining
to
such duties. The Administrative Agent shall not be responsible for the
negligence or misconduct of any agent or attorney-in-fact that it selects with
reasonable care.
11.03
Liability
of Administrative Agent.
Neither
the Administrative Agent nor any of its officers, directors, employees, agents,
attorneys-in-fact or Affiliates shall be (a) liable for any action taken or
omitted to be taken by it or any such Person under or in connection with this
Agreement or any other Transaction Document or the transactions contemplated
hereby (except for its or such Person’s own gross negligence or willful
misconduct), or (b) responsible in any manner to any of the Lenders for any
recital, statement, representation or warranty made by the Borrower, the
Guarantors or any officer thereof contained in this Agreement or in any other
Transaction Document, or in any certificate, report, statement or other document
referred to or provided for in, or received by the Administrative Agent under
or
in connection with, this Agreement or any other Transaction Document, or for
the
validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any other Transaction Document, or for any failure of the Borrower,
the Guarantors or any other party to any Transaction Document to perform its
obligations hereunder or thereunder. Except as otherwise expressly stated
herein, the Administrative Agent shall not be under any obligation to any Lender
to ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement or any other
Transaction Document, or to inspect the properties, books or records of the
Borrower or the Guarantors.
11.04 Reliance
by Administrative Agent.
(a) The
Administrative Agent shall be entitled to rely, and shall be fully protected
in
relying, upon any writing, resolution, notice, consent, certificate, affidavit,
letter, telegram, facsimile, telex or teletype message, statement, order or
other document or telephone conversation believed by it in good faith to be
genuine and correct and to have been signed, sent or made by the proper Person
or Persons, and upon advice and statements of legal counsel, independent
accountants and other experts selected by the Administrative Agent. The
Administrative Agent shall be fully justified in failing or refusing to take
any
action under this Agreement or any other Transaction Document unless it shall
first receive such advice or concurrence of the Required Lenders as it deems
appropriate and, if it so requests, it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense which
may
be incurred by it by reason of failing to take, taking or continuing to take
any
such action. The Administrative Agent shall in all cases be fully protected
in
acting, or in refraining from acting, under this Agreement or any other
Transaction Document in accordance with a request or consent of the Required
Lenders (or when expressly required by this Agreement, all the Lenders) and
such
request and any action taken or failure to act pursuant thereto shall be binding
upon all the Lenders.
(b) For
purposes of determining compliance with the conditions specified in Section
4.01,
each
Lender that has executed this Agreement shall be deemed to have consented to,
approved or accepted or to be satisfied with, each document or other matter
sent
by the Administrative Agent to such Lender for consent, approval, acceptance
or
satisfaction on or before the Effective Date.
11.05
Notice
of Default.
The
Administrative Agent shall not be deemed to have knowledge or notice of the
occurrence of any Default or Event of Default (except with respect to defaults
in the payment of principal, interest and fees required to be paid to the
Administrative Agent for the account of the Lenders) unless the Administrative
Agent shall have received written notice from a Lender or the Borrower referring
to this Agreement and describing such Default or Event of Default and stating
that such notice is a “Notice
of Default”.
The
Administrative Agent shall promptly notify the Lenders of its receipt of any
such notice. The Administrative Agent shall take such action with respect to
such Default or Event of Default as may be requested by the Lenders;
provided,
however,
that
unless and until the Administrative Agent has received any such request, the
Administrative Agent may (but shall not be obligated to) take such action,
or
refrain from taking such action, with respect to such Default or Event of
Default as it shall deem advisable or in the best interest of the
Lenders.
11.06
Credit
Decision.
Each
Lender expressly acknowledges that neither the Administrative Agent nor any
of
its Affiliates, officers, directors, employees, agents or attorneys-in-fact
has
made any representation or warranty to it, and that no act by the Administrative
Agent hereafter taken, including any review of the affairs of the Borrower,
the
Guarantors, or any of their Affiliates, shall be deemed to constitute any
representation or warranty by the Administrative Agent to any Lender. Each
Lender acknowledges to the Administrative Agent that it has, independently
and
without reliance upon the Administrative Agent or any other Lender, and based
on
such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, prospects, operations,
property, financial and other condition and creditworthiness of the Borrower,
the Guarantors, and their Affiliates and all applicable Lender regulatory laws
relating to the transactions contemplated hereby, and made its own decision
to
enter into this Agreement. Each Lender also acknowledges that it will,
independently and without reliance upon the Administrative Agent or any other
Lender, and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit analysis, appraisals and decisions
in taking or not taking action under this Agreement and the other Transaction
Documents, and to make such investigations as it deems necessary to inform
itself as to the business, prospects, operations, property, financial and other
condition and creditworthiness of the Borrower or the Guarantors. Except for
notices, reports and other documents expressly herein required to be furnished
to the Lenders by the Administrative Agent, the Administrative Agent shall
not
have any duty or responsibility to provide any Lender with any credit or other
information concerning the business, prospects, operations, property, financial
and other condition or creditworthiness of the Borrower or the Guarantors which
may come into the possession of the Administrative Agent or any of its
Affiliates, officers, directors, employees, agents or
attorneys-in-fact.
11.07
Indemnification.
Whether
or not the transactions contemplated hereby are consummated, the Lenders agree
to indemnify upon demand the Administrative Agent and its Affiliates, directors,
officers, agents and employees (to the extent not reimbursed by the Borrower
and
without limiting the obligation of the Borrower to do so), ratably according
to
the respective amounts of their Commitment Percentages in effect on the date
the
cause for indemnification arose, from and against any and all claims,
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind whatsoever which may at any time
(including at any time following the payment of the Obligations or the
Termination Date) be imposed on, incurred by or asserted against the
Administrative Agent (or any of its Affiliates, directors, officers, agents
and
employees) in any way relating to or arising out of this Agreement or any other
Transaction Document, or any documents contemplated by or referred to herein
or
the transactions contemplated hereby or any action taken or omitted by the
Administrative Agent under or in connection with any of the foregoing;
provided,
however,
that no
Lender shall be liable for the payment of any portion of such claims,
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements to the extent it results from the gross
negligence or willful misconduct of the Administrative Agent or its Affiliates,
directors, officers, agents or employees. Without limitation of the foregoing,
each Lender shall reimburse the Administrative Agent upon demand for its ratable
share of any reasonable and documented costs or out-of-pocket expenses
(including legal fees) incurred by the Administrative Agent in connection with
the preparation, execution, modification, amendment or enforcement (whether
through negotiations, legal proceedings or otherwise) of, or legal advice in
respect of rights or responsibilities under, this Agreement, any other
Transaction Document, or any document contemplated by or referred to herein,
to
the extent that the Administrative Agent is not reimbursed for such expenses
by
or on behalf of the Borrower.
11.08
Administrative
Agent in Individual Capacity.
ING
Capital LLC may make loans to, issue letters of credit for the account of,
accept deposits from and generally engage in any kind of banking, trust,
financial advisory, underwriting or other business with the Borrower, the
Guarantors or any of their Affiliates as though ING Capital LLC were not the
Administrative Agent hereunder and without notice to or the consent of the
Lenders. The Lenders acknowledge that, pursuant to such activities, (i) ING
Capital LLC or its Affiliates may receive information regarding the Borrower,
the Guarantors and their Affiliates (including information that may be subject
to confidentiality obligations in favor of the Borrower or the Guarantors)
and
(ii) that the Administrative Agent shall be under no obligation to provide
such
information to them. With respect to the Obligations, ING Capital LLC shall
have
the same rights and powers under this Agreement as any other Lender, and the
terms “Lender”
and
“Lenders”
include
ING Capital LLC in its individual capacity.
11.09
Successor
Administrative Agent.
The
Administrative Agent may, and at the request of the Required Lenders shall,
resign as Administrative Agent upon 30 days’ notice to the Lenders and the
Borrower. If the Administrative Agent resigns under this Agreement, the Required
Lenders shall appoint from among the Lenders a successor agent for the Lenders,
which appointment shall be subject to the approval of the Borrower, such
approval not to be unreasonably withheld (unless a Default or Event of Default
shall have occurred and be continuing, in which case such approval shall not
be
required). If no successor agent is appointed prior to the effective date of
the
resignation of the Administrative Agent, the Administrative Agent may appoint,
after consulting with the Lenders and the Borrower, a successor agent from
among
the Lenders. Upon the acceptance of its appointment as successor agent
hereunder, such successor agent shall succeed to all the rights, powers and
duties of the retiring Administrative Agent and the term “Administrative
Agent”
shall
mean such successor agent effective upon its appointment, and the retiring
Administrative Agent’s rights, powers and duties as Administrative Agent shall
be terminated, without any other or further act on the part of such retiring
Administrative Agent. After any retiring Administrative Agent’s resignation
hereunder as Administrative Agent, the provisions of this Article
XI
and
Sections
13.04
and
13.05
shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Administrative Agent under this Agreement. If no successor Administrative
Agent has accepted the appointment as Administrative Agent by the date which
is
30 days following a retiring Administrative Agent’s notice of resignation, the
retiring Administrative Agent’s resignation shall nevertheless thereupon become
effective and either the Borrower or the retiring Administrative Agent may,
on
behalf of the Lenders, appoint a successor Administrative Agent, which shall
be
a commercial bank organized or licensed under the laws of the United States
or
of any State thereof and having a combined capital and surplus of at least
U.S.$400,000,000.
THE
JOINT BOOKRUNNERS
12.01
The
Joint Bookrunners.
The
Borrower hereby confirms the designation of Banco Santander, S.A., Institución
de Banca Múltiple Grupo Financiero Santander, Société Générale, S.A., BNP
Paribas, and Calyon, New York Branch as Joint Bookrunners for this Agreement.
The Joint Bookrunners assume no responsibility or obligation hereunder for
servicing, enforcement or collection of the Obligations, or any duties as agent
for the Lenders. The title “Joint
Bookrunner”
or
“Book-runner”
implies
no fiduciary responsibility on the part of the Joint Bookrunners to the
Administrative Agent, or the Lenders and the use of either such title does
not
impose on the Joint Bookrunners any duties or obligations under this Agreement
except as may be expressly set forth herein.
12.02
Liability
of Joint Bookrunners.
Neither
the Joint Bookrunners nor any of their respective officers, directors,
employees, agents, attorneys-in-fact or Affiliates shall be (a) liable for
any
action lawfully taken or omitted to be taken by them or any such Person under
or
in connection with this Agreement or any other Transaction Document (except
for
such Joint Bookrunner’s own gross negligence or willful misconduct), or (b)
responsible in any manner to any Lender for any recital, statement,
representation or warranty made by the Borrower or any officer thereof,
contained in this Agreement or in any other Transaction Document, or in any
certificate, report, statement or other document referred to or provided for
in,
or received by the Arrangers under or in connection with, this Agreement or
any
other Transaction Document or for the validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Transaction
Document or for any failure of the Borrower or any other party to any other
Transaction Document to perform its obligations hereunder or thereunder. Except
as otherwise expressly stated herein, the Joint Bookrunners shall not be under
any obligation to any Lender to ascertain or to inquire as to the observance
or
performance of any of the agreements contained in, or conditions of, this
Agreement or any other Transaction Document, or to inspect the properties,
books
or records of the Borrower.
12.03
Joint
Bookrunners in their Respective Individual Capacities.
Each of
Banco Santander, S.A., Institución de Banca Múltiple Grupo Financiero Santander,
Société Générale, S.A., BNP Paribas, and Calyon, New York Branch, and their
respective Affiliates, may make loans to, accept deposits from and generally
engage in any kind of business with the Borrower or any of its Affiliates as
though they were not the Joint Bookrunners hereunder.
12.04
Credit
Decision.
Each
Lender expressly acknowledges that neither the Joint Bookrunners nor any of
their respective Affiliates, officers, directors, employees, agents or
attorneys-in-fact have made any representation or warranty to it, and that
no
act by the Joint Bookrunners hereafter taken, including any review of the
affairs of the Borrower or the Guarantors, shall be deemed to constitute any
representation or warranty by the Joint Bookrunners to any Lender. Each Lender
acknowledges to the Joint Bookrunners that it has, independently and without
reliance upon the Joint Bookrunners, and based on such documents and information
as it has deemed appropriate, made its own appraisal of and investigation into
the business, prospects, operations, property, financial and other condition
and
creditworthiness of the Borrower or the Guarantors and their Affiliates and
made
its own decision to enter into this Agreement. Each Lender also acknowledges
that it will, independently and without reliance upon the Joint Bookrunners,
and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit analysis, appraisals and decisions in
taking or not taking action under this Agreement and the other Transaction
Documents, and to make such investigations as it deems necessary to inform
itself as to the business, prospects, operations, property, financial and other
condition and creditworthiness of the Borrower or the Guarantors. The Joint
Bookrunners shall not have any duty or responsibility to provide any Lender
with
any information concerning the business, prospects, operations, property,
financial and other condition or creditworthiness of the Borrower which may
come
into the possession of the Joint Bookrunners or any of their respective
officers, directors, employees, agents, attorneys-in-fact or
Affiliates.
MISCELLANEOUS
13.01
Notices.
(a) Except
as
otherwise expressly provided herein, all notices, requests, demands or other
communications to or upon any party hereunder shall be in writing (including
facsimile transmission) and shall be sent by an overnight courier service,
transmitted by facsimile or delivered by hand to such party: (i) in the case
of
the Borrower, the Guarantors or the Administrative Agent, at its address or
facsimile number set forth on the signature pages hereof or at such other
address or facsimile number as such party may designate by notice to the other
parties hereto and (ii) in the case of the Joint Bookrunners or any Lender,
at
its address or facsimile number set forth in Schedule
1.01(c)
or at
such other address or facsimile number as such Lender may designate by notice
to
the Borrower, the Joint Bookrunners and the Administrative Agent.
(b) Unless
otherwise expressly provided for herein, each such notice, request, demand
or
other communication shall be effective (i) if sent by overnight courier service
or delivered by hand, upon delivery, (ii) if given by facsimile, when
transmitted to the facsimile number specified pursuant to paragraph (a) above
and confirmation of receipt of a legible copy thereof is received, or (iii)
if
given by any other means, when delivered at the address specified pursuant
to
paragraph (a) above; provided,
however,
that
notices to the Administrative Agent under Article
II,
III,
IV,
V
or
XI
shall
not be effective until received.
13.02
Amendments
and Waivers.
No
amendment or waiver of any provision of this Agreement, and no consent to any
departure by the Borrower or any Guarantor from the terms of this Agreement,
shall in any event be effective unless the same shall be in writing, consented
to by the Borrower or the applicable Guarantors, as the case may be, and
acknowledged by the Administrative Agent, and signed or consented to in writing
by the Required Lenders, provided,
that
the
Administrative Agent may effect, on behalf of any Lender, any amendment or
waiver permitted by this Section, and the Borrower may effect, as agent of
each
Obligor, any amendment or waiver permitted by this Section
13.02,
and
then
such amendment, waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given and
any
such amendment or waiver will be binding on all parties to this
Agreement;
provided,
however,
that no
amendment, waiver or consent shall:
(a) (i)
except as specifically provided herein, increase or decrease the Commitment
of
any Lender;
(ii) extend
the maturity of any of the Obligations, extend the time of payment of interest
thereon, or extend the Termination Date;
(iii) forgive
any Obligation, reduce the principal amount of the Obligations, reduce the
rate
of interest thereon, reduce the amount or change the method of calculation
of
any Fee hereunder, or change the provisions of Section 3.05(a);
in
each
case without the consent of the Borrower and each Lender directly affected
thereby;
(b) (i)
amend, modify or waive any provision of this Section
13.02;
(ii) change
the percentage specified in the definition of Required Lenders or the number
of
Lenders which shall be required for the Lenders or any of them to take any
action under this Agreement; or
(iii) amend,
modify or waive any provision of Section
4.01;
or
(iv) amend,
modify or waive any provision of Section
13.06;
in
each
case without the consent of the Borrower and all the Lenders;
(c) amend,
modify or waive any provision of Article
XI
without
the written consent of the Administrative Agent; and
(d) amend,
modify or waive any provision of Article
XII
without
the consent of the Joint Bookrunners.
13.03
No
Waiver; Cumulative Remedies.
No
failure to exercise and no delay in exercising, on the part of the
Administrative Agent or any Lender, any right, remedy, power or privilege
hereunder or under any other Transaction Document shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, remedy, power
or
privilege hereunder or thereunder preclude any other or further exercise thereof
or the exercise of any other right, remedy, power or privilege. The rights
and
remedies herein provided are cumulative and not exclusive of any rights or
remedies provided by law.
13.04 Payment
of Expenses, Etc.
The
Borrower agrees to pay on demand
(a) all
reasonable and documented out-of-pocket costs and expenses (including reasonable
legal fees and disbursements of special Mexican and New York counsel to the
Administrative Agent), syndication (including printing, distribution and bank
meetings), travel, telephone and duplication expenses and other reasonable
and
documented costs and out of- pocket expenses in connection with the arrangement,
documentation, negotiation and closing of the Transaction Documents, subject
to
the maximum amount set forth in a letter agreement between the Borrower and
the
Joint Bookrunners;
(b) all
reasonable and documented out-of-pocket costs and expenses incurred by the
Administrative Agent in connection with any amendment to, waiver of, or consent
to any Transaction Document or the transactions contemplated hereby, including
the reasonable fees and reasonable and documented out-of-pocket expenses of
special Mexican and New York counsel to the Administrative Agent and the
allocated cost of in-house counsel thereof; and
(c) all
reasonable and documented, out-of-pocket costs and expenses incurred by the
Administrative Agent or any Lender in connection with the enforcement of and/or
preservation of any rights under this Agreement or any other Transaction
Document (whether through negotiations, legal proceedings or otherwise),
including the reasonable fees and reasonable and documented out-of-pocket
expenses of special Mexican and New York counsel to the Administrative Agent,
such Lender and the allocated costs of in-house counsel thereof.
13.05
Indemnification.
The
Borrower agrees to indemnify and hold harmless the Joint Bookrunners, the
Administrative Agent and each Lender and each of their Affiliates and their
officers, directors, employees, agents and advisors (each, an “Indemnified
Party”)
from
and against any and all claims, damages, losses, liabilities and expenses
(including reasonable fees and expenses of counsel and the allocated cost of
in-house counsel), but excluding taxes that may be incurred by or asserted
or
awarded against any Indemnified Party, in each case arising out of or in
connection with or by reason of (including in connection with any investigation,
litigation or proceeding or preparation of a defense in connection therewith)
(a) the Transaction Documents, any of the transactions contemplated herein
or
the actual or proposed use of the proceeds of the Loans or (b) or any
Environmental Action relating in any way to the Borrower or any of its
Subsidiaries, except to the extent such claim, damage, loss, liability or
expense is found in a final, non-appealable judgment by a court of competent
jurisdiction to have resulted from such Indemnified Party’s gross negligence or
willful misconduct. In the case of an investigation, litigation or other
proceeding to which the indemnity in this Section
13.05
applies,
such indemnity shall be effective whether or not such investigation, litigation
or proceeding is brought by the Borrower, its directors, shareholders or
creditors or an Indemnified Party or any other Person or any Indemnified Party
is otherwise a party thereto and whether or not the transactions contemplated
hereby are consummated. The Borrower and each Guarantor also agrees not to
assert any claim against the Joint Bookrunners, the Administrative Agent, any
Lender, any of their Affiliates, or any of their respective directors, officers,
employees, attorneys and agents, on any theory of liability, for special,
indirect, consequential or punitive damages arising out of or otherwise relating
to the Transaction Documents, any of the transactions contemplated herein or
the
actual or proposed use of the proceeds of the Transaction Documents. Neither
the
Joint Bookrunner, the Administrative Agent, nor any Lender shall be deemed
to
have any fiduciary relationship with the Borrower or the Guarantor.
13.06
Successors
and Assigns.
(a) The
provisions of this Agreement shall be binding upon the Borrower, the Guarantors,
their successors and assigns and shall inure to the benefit of the Joint
Bookrunners, the Administrative Agent and the Lenders and, to the extent
permitted by law, their respective successors and assigns, except that the
Borrower and the Guarantors may not assign or otherwise transfer any of their
rights or obligations under this Agreement without the prior written consent
of
all Lenders except pursuant to the terms of this Agreement.
(b) Unless
an
Event of Default has occurred and is continuing, no Lender may assign or
otherwise transfer all, or a portion, of its Commitment and its rights and
obligations under this Agreement and the Notes, except as provided for under
Section
13.06(c)
as a
result of Sections
2.01(d)
or
3.11;
provided,
however,
following the occurrence and continuation of an Event of Default, any Lender
may, without the prior written consent of the Borrower, assign or otherwise
transfer all, or a portion, of its Commitment and its rights and obligations
under this Agreement and the Notes.
(c) Any
Lender, if demanded by the Borrower pursuant to Section
2.01(d)
or
Section
3.11
upon at
least five Business Days’ notice to such Lender and the Administrative Agent,
shall, assign to one or more commercial banks designated by the Borrower either
(i) registered as a Foreign Financial Institution and a resident (or having
its
principal office as a resident, if lending through a branch or agency) for
tax
purposes in a jurisdiction that is a party to an income tax treaty to avoid
double taxation with Mexico on the date of such assignment, qualified to receive
the benefits of said treaty or (ii) organized and existing under the laws of
Mexico on the date of such assignment (each an “Assignee”)
all,
or a proportionate part of all, of its Commitment and its rights and obligations
under this Agreement and the Notes, and such Assignee shall assume such rights
and obligations, pursuant to an Assignment and Assumption Agreement executed
by
such Assignee and such transferor Lender, with (and subject to) the subscribed
consent of the Borrower and the Administrative Agent (which consents shall
not
be unreasonably withheld or delayed, and if a Default or Event of Default has
occurred and is continuing, the consent of the Borrower shall not be required);
provided,
however,
that if
an Assignee is an Affiliate of such transferor Lender, which Affiliate is
registered as a Foreign Financial Institution and meets the tax residence and
qualification requirements of clause (ii) above and, at the time of such
assignment, the additional amounts payable with respect to Taxes to such
Assignee will not exceed such amounts payable to the transferor Lender, no
such
consent shall be required; and provided further
that, in
the case of an assignment of only part of such rights and obligations, the
Assignee shall acquire a Total Exposure of not less than U.S.$3,000,000 and
integral multiples of U.S.$1,000,000 in excess thereof. Upon execution and
delivery of an Assignment and Assumption Agreement pursuant to this paragraph
(c) and payment by the Assignee to the transferor Lender of all amounts due
pursuant to Section
3.11,
such
Assignee shall be a Lender party to this Agreement and shall have all the rights
and obligations of a Lender with a Commitment as set forth in such instrument
of
assumption (in addition to any Commitment previously held by it), and the
transferor Lender shall be released from its obligations hereunder to a
corresponding extent (except to the extent the same arose prior to the
assignment), and no further consent or action by any party shall be required.
Upon the consummation of any assignment pursuant to this paragraph (c), the
transferor Lender, the Administrative Agent and the Borrower shall make
appropriate arrangements so that a new Note is issued to the Assignee at the
expense of the Assignee. In connection with any such assignment (other than
a
transfer by a Lender to one of its Affiliates), the transferor Lender (or in
the
case of Section
3.11,
the
Borrower), without prejudice to any claims the Borrower may have against any
Defaulting Lender, shall pay to the Administrative Agent an administrative
fee
for processing such assignment in the amount of U.S.$3,500.00.
(d) Notwithstanding
the foregoing, nothing herein shall prohibit any Lender from pledging or
assigning any Note to any Federal Reserve Bank of the United States in
accordance with applicable law and without compliance with the foregoing
provisions of this Section
13.06;
provided,
however,
that
such pledge or assignment shall not release such Lender from its obligations
hereunder.
(e) Following
the occurrence of an Event of Default that is continuing, any Lender may,
without any consent of the Borrower, the Administrative Agent or any other
third
party at any time grant to one or more banks or other institutions (i)
registered as a Foreign Financial Institution and (ii) resident (or having
its
principal office as a resident, if lending through a branch or agency) for
tax
purposes in a jurisdiction that is a party to an income tax treaty to avoid
double taxation with Mexico on the date of such assignment and qualified to
receive the benefits of said treaty and having (at the time such Lender or
financial institution becomes a Participant) a withholding tax rate under such
treaty applicable to payments hereunder no higher than that applicable to
payments to such Lender (each a “Participant”)
participating interests in its Commitment or any or all of its Loans. In the
event of any such grant by a Lender of a participating interest to a
Participant, whether or not upon notice to the Borrower and the Administrative
Agent, such Lender shall remain responsible for the performance of its
obligations hereunder, and the Borrower and the Administrative Agent shall
continue to deal solely and directly with such Lender in connection with such
Lender’s rights and obligations under this Agreement. Any agreement pursuant to
which any Lender may grant such a participating interest shall provide that
such
Lender shall retain the sole right and responsibility to enforce the obligations
of the Borrower hereunder, including the right to approve any amendment,
modification or waiver of any provision of this Agreement; provided,
however,
that
such participation agreement may provide that such Lender will not agree to
any
modification, amendment or waiver of this Agreement extending the maturity
of
any Obligation in respect of which the participation was granted, or reducing
the rate or extending the time for payment of interest thereon or reducing
the
principal thereof, or reducing the amount or basis of calculation of any fees
to
accrue in respect of the participation, without the consent of the Participant.
The Borrower agrees that each Participant shall, to the extent provided in
its
participation agreement, be entitled to the benefits of Sections
3.04,
3.06
and
3.10
with
respect to its participating interest as if it were a Lender named herein;
provided,
however,
that
the Borrower shall not be required to pay any greater amounts pursuant to such
Sections than it would have been required to pay but for the sale to such
Participant of such Participant’s participation interest. An assignment or other
transfer which is not permitted by paragraph (b) or (c) above shall be given
effect for purposes of this Agreement only to the extent of a participating
interest granted in accordance with this paragraph (d).
(f) Following
the occurrence of an Event of Default that is continuing, any Lender may, in
connection with any assignment or participation or proposed assignment or
participation pursuant to this Section
13.06,
disclose to the Assignee or Participant or proposed Assignee or Participant,
any
information relating to the Borrower furnished to such Lender by or on behalf
of
the Borrower; provided
that,
prior to any such disclosure, the Assignee or Participant or proposed Assignee
or Participant shall agree to preserve the confidentiality of any Confidential
Information relating to the Borrower received by it from such
Lender.
13.07
Right
of Set-off.
In
addition to any rights and remedies of the Lenders provided by law, each such
Lender shall have the right, without prior notice to the Borrower or the
Guarantors, any such notice being expressly waived by the Borrower and the
Guarantors to the extent permitted by applicable law, upon any amount becoming
due and payable by the Borrower or the Guarantors hereunder (whether at the
stated maturity, by acceleration or otherwise) to set off and appropriate and
apply against such amount any and all deposits (general or special, time or
demand, provisional or final), in any currency, and any other credits,
indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured, at any time held or
owing by such Lender, or any branch or agency thereof to or for the credit
or
the account of the Borrower or the Guarantors. Each Lender agrees promptly
to
notify the Borrower, or such Guarantor, as the case may be, and the
Administrative Agent after any such set-off and application made by such Lender,
provided that the failure to give such notice shall not affect the validity
of
such set-off and application.
13.08
Confidentiality.
Neither
the Administrative Agent nor any Lender shall disclose any Confidential
Information to any other Person without the prior written consent of the
Borrower, other than (a) to the Administrative Agent’s, or such Lender’s
Affiliates and their officers, directors, employees, agents and advisors and,
as
contemplated by Section
13.06(f),
to
actual or prospective Assignees and Participants, and then only on a
confidential basis, (b) as required by any law, rule or regulation (including
as
may be required in connection with an audit by the Administrative Agent’s, or
such Lender’s independent auditors, and as may be required by any
self-regulating organizations) or as may be required by or necessary in
connection with any judicial process and (c) as requested by any state, federal
or foreign authority or examiner regulating banks or banking.
13.09
Use
of
English Language.
All
certificates, reports, notices and other documents and communications given
or
delivered pursuant to this Agreement shall be in the English language (other
than the documents required to be provided pursuant to Section
4.01(e)(iii), Section
7.01
and
Section
7.02
which
shall be in the English language or in the Spanish language accompanied by
an
English translation or summary). Except in the case of the laws of, or official
communications of, Mexico, the English language version of any such document
shall control the meaning of the matters set forth therein.
13.10
GOVERNING
LAW.
THIS
AGREEMENT AND THE OTHER TRANSACTION DOCUMENTS SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
13.11
Submission
to Jurisdiction
(a) Each
of
the parties hereto hereby irrevocably and unconditionally submits to the
non-exclusive jurisdiction of the United States District Court for the Southern
District of New York and of any New York State court located in the Borough
of
Manhattan in New York City and any appellate court thereof for purposes of
any
suit, legal action or proceeding arising out of or relating to this Agreement,
any other Transaction Document or the transactions contemplated hereby, and
each
of the parties hereto hereby irrevocably agrees that all claims in respect
of
such suit, action or proceeding may be heard and determined in such federal
or
New York State court. Each of the parties hereto also submit to the jurisdiction
of the competent courts of its corporate domicile in respect of actions
initiated against it as a defendant.
(b) Each
of
the parties hereto hereby irrevocably waives, to the fullest extent it may
effectively do so, any objection that it may now or hereafter have to the laying
of venue of any such suit, action or proceeding in any such federal or New
York
State court and irrevocably waives, to the fullest extent permitted by law,
the
defense of an inconvenient forum to the maintenance of any such suit, action
or
proceeding.
(c) Each
of
the parties hereto irrevocably waives the right to object, with respect to
such
claim, suit, action or proceeding brought in any such court, that such court
does not have jurisdiction over it.
(d) Each
of
the parties hereto agrees, to the fullest extent it may effectively do so under
applicable law, that a final judgment in any suit, action or proceeding of
the
nature referred to in paragraph (a) above brought in any such court shall be
conclusive and binding upon such party and may be enforced in other
jurisdictions by suit on the judgment or in any manner provided by
law.
(e) EACH
OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL
BY
JURY IN ANY SUIT, ACTION OR PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR
RELATING TO ANY OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR THE
ACTIONS OF ANY ARRANGER, THE ADMINISTRATIVE AGENT OR ANY LENDER IN THE
NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT
THEREOF.
13.12
Appointment
of Agent for Service of Process.
(a) The
Borrower and each Guarantor hereby irrevocably appoints CT Corporation System,
with an office on the date hereof at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, as its agent (the “Process
Agent”)
to
receive on behalf of itself and its property, service of copies of the summons
and complaint and any other process which may be served in any such action
or
proceeding brought in any New York State or federal court sitting in New York
City. Such service may be made by delivering a copy of such process to the
Borrower or any Guarantor, as the case may be, in care of the Process Agent
at
its address specified above, and the Borrower and each Guarantor, as the case
may be, hereby authorizes and directs the Process Agent to accept such service
on its behalf. The appointment of the Process Agent shall be irrevocable until
the appointment of a successor Process Agent. The Borrower and each Guarantor,
further agrees to promptly appoint a successor Process Agent in New York City
prior to the termination for any reason of the appointment of the initial
Process Agent.
(b) Nothing
in Section
13.11
or in
this Section
13.12
shall
affect the right of any party hereto to serve process in any manner permitted
by
law or limit any right that any party hereto may have to enforce in any lawful
manner a judgment obtained in one jurisdiction in any other
jurisdiction.
13.13
Waiver
of Sovereign Immunity.
To the
extent that the Borrower or a Guarantor has or hereafter may acquire any
immunity from jurisdiction of any court or from any legal process (whether
through service or notice, attachment prior to judgment, attachment in aid
of
execution, or otherwise) with respect to itself or its property, the Borrower
or
the Guarantor, as the case may be, hereby irrevocably waives such immunity
in
respect of its obligations hereunder to the extent permitted by applicable
law.
Without limiting the generality of the foregoing, the Borrower and each
Guarantor agrees that the waivers set forth in this Section 13.13
shall
have force and effect to the fullest extent permitted under the Foreign
Sovereign Immunities Act of 1976 of the United States and are intended to be
irrevocable for purposes of such Act.
13.14
Judgment
Currency.
(a) All
payments made under this Agreement and the other Transaction Documents shall
be
made in Dollars. If for the purposes of obtaining judgment in any court it
is
necessary to convert a sum due from the Borrower in Dollars into another
currency, the parties hereto agree to the fullest extent that they may legally
and effectively do so that the rate of exchange used shall be that at which
in
accordance with normal banking procedures (based on quotations from four major
dealers in the relevant market) the Administrative Agent or each Lender, as
the
case may be, could purchase Dollars with such currency at or about 11:00 a.m.
(New York City time) on the Business Day preceding that on which final judgment
is given.
(b) The
Obligations in respect of any sum due to any Lender or the Administrative Agent
hereunder or under any other Transaction Document shall, to the extent permitted
by applicable law notwithstanding any judgment expressed in a currency other
than Dollars, be discharged only to the extent that on the Business Day
following receipt by such Lender or the Administrative Agent of any sum adjudged
to be so due in such other currency such Lender or the Administrative Agent
may
in accordance with normal banking procedures purchase Dollars with such other
currency. If the amount of Dollars so purchased is less than the sum originally
due to such Lender or the Administrative Agent, the Borrower and each of the
Guarantors agree, to the fullest extent it may legally do so, as a separate
obligation and notwithstanding any such judgment, to indemnify such Lender
or
the Administrative Agent against such resulting loss.
13.15
Counterparts.
This
Agreement may be executed in any number of counterparts and by the different
parties hereto in separate counterparts, each of which when so executed shall
be
deemed to be an original and all of which taken together shall constitute one
and the same agreement. Delivery of an executed counterpart of a signature
page
to this Agreement by facsimile shall be effective as delivery of a manually
executed counterpart of this Agreement.
13.16
USA
PATRIOT Act.
The
Lenders, to the extent that they are subject to the requirements of the USA
PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001))
(the “Act”),
hereby notify the Borrower that pursuant to the requirements of the Act, it
is
required to obtain, verify and record information that identifies the Borrower,
which information includes the name and address of the Borrower and other
information that will allow the Lenders to identify the Borrower in accordance
with the Act.
13.17
Severability.
Any
provision of this Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof or affecting the validity or enforceability of such provision
in any other jurisdiction, and the remaining portion of such provision and
all
other remaining provisions hereof will be construed to render them enforceable
to the fullest extent permitted by law.
13.18
Survival
of Agreements and Representations.
(a) All
representations and warranties made herein or in any other Transaction Document
shall survive the execution and delivery of this Agreement and the consummation
of the transactions contemplated hereby.
(b) The
covenants and agreements contained in Sections
3.05,
3.07,
3.09,
3.10,
13.04,
13.05,
13.08,
13.09,
13.11
and
13.12,
and the
obligations of the Lenders under Section
11.07,
shall
survive the termination of the Commitments and, in the case of any Lender that
may assign any interest in its Commitment or obligations hereunder, with respect
to matters occurring before such assignment, shall survive the making of such
assignment to the extent any claim arising thereunder relates to any period
prior to such assignment, notwithstanding that such assigning Lender may cease
to be a “Lender”
hereunder.
*
* * * *
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.
|
CEMEX,
S.A.B. de C.V.
|
|
| By | /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ |
| Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | |
| Title: Attorney-in-Fact | |
| Address: |
Ave.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇
San
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
México
|
| Fax: |
|
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CEMEX
MÉXICO, S.A. de C.V., as Guarantor
|
|
| By | /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ |
| Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | |
| Title: Attorney-in-Fact | |
| Address: |
Ave.
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▇▇▇▇▇▇▇
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San
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
México
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| Fax: |
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S-1
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EMPRESAS
TOLTECA de MÉXICO, S.A. de C.V., as Guarantor
|
|
| By | /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ |
| Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | |
| Title: Attorney-in-Fact | |
| Address: |
Ave.
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▇▇▇▇▇▇▇
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San
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
México
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| Fax: |
|
|
ING
CAPITAL LLC, as Administrative Agent
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| By | /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇ |
| Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇ | |
| Title: Director | |
| Address: |
▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇
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S-2
|
BANCO
SANTANDER, S.A., INSTITUCIÓN DE BANCA MÚLTIPLE GRUPO FINANCIERO SANTANDER,
as Lender
|
|
| By | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ |
| Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | |
| Title: Directors | |
|
BARCLAYS
BANK PLC, as Lender
|
|
| By | /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇ |
| Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇ | |
| Title: Director | |
|
BNP
PARIBAS, as Lender
|
|
| By | /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇▇ |
| Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇▇ | |
| Title: Director / Director | |
|
CALYON,
NEW YORK BRANCH, as Lender
|
|
| By | /s/ ▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇ |
| Name: ▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇ | |
| Title: Managing Director and Vice President | |
:
|
ING
BANK N.V. (ACTING
THROUGH ITS CURAÇAO BRANCH),
as Lender
|
|
| By | /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ / ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ |
| Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ / ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |
| Title: Director / Director | |
| Chief Financial Officer / Human Resources Manager | |
S-3
:
|
SOCIÉTÉ
GÉNÉRALE, S.A., as Lender
|
|
| By | /s/ Chin-Eav Eap |
| Name: Chin-Eav Eap | |
| Title: Managing Director | |
S-4
SCHEDULE
1.01(a)
Lenders’
Commitments
|
Lenders
|
Allocation
|
Commitment
Percentages
|
Title
|
|
ING
BANK N.V. (ACTING
THROUGH ITS CURAÇAO BRANCH)
|
U.S.$500,000,000.00
|
16.66%
|
Joint
Lead Arranger and Lender
|
|
BARCLAYS
BANK PLC
|
U.S.$500,000,000.00
|
16.66%
|
Joint
Lead Arranger and Lender
|
|
BANCO
SANTANDER, S.A., INSTITUCIÓN DE BANCA MÚLTIPLE GRUPO FINANCIERO
SANTANDER
|
U.S.$500,000,000.00
|
16.66%
|
Joint
Bookrunner, Joint Lead Arranger and Lender
|
|
SOCIÉTÉ
GÉNÉRALE, S.A.
|
U.S.$500,000,000.00
|
16.66%
|
Joint
Bookrunner, Joint Lead Arranger and Lender
|
|
BNP
PARIBAS
|
U.S.$500,000,000.00
|
16.66%
|
Joint
Bookrunner, Joint Lead Arranger and Lender
|
|
CALYON,
NEW YORK BRANCH
|
U.S.$500,000,000.00
|
16.66%
|
Joint
Bookrunner, Joint Lead Arranger and Lender
|
|
Total
|
U.S.$3,000,000,000.00
|
SCHEDULE
1.01(b)
Lenders’
Commitments following an Amendment Event
|
Lenders
|
Allocation
|
Commitment
Percentages
|
Title
|
|
ING
BANK N.V. (ACTING
THROUGH ITS CURAÇAO BRANCH)
|
U.S.$166,666,666.66
|
16.66%
|
Joint
Lead Arranger and Lender
|
|
BARCLAYS
BANK PLC
|
U.S.$166,666,666.66
|
16.66%
|
Joint
Lead Arranger and Lender
|
|
BANCO
SANTANDER, S.A., INSTITUCIÓN DE BANCA MÚLTIPLE GRUPO FINANCIERO
SANTANDER
|
U.S.$166,666,666.66
|
16.66%
|
Joint
Bookrunner, Joint Lead Arranger and Lender
|
|
SOCIÉTÉ
GÉNÉRALE, S.A.
|
U.S.$166,666,666.66
|
16.66%
|
Joint
Bookrunner, Joint Lead Arranger and Lender
|
|
BNP
PARIBAS
|
U.S.$166,666,666.66
|
16.66%
|
Joint
Bookrunner, Joint Lead Arranger and Lender
|
|
CALYON,
NEW YORK BRANCH
|
U.S.$166,666,666.66
|
16.66%
|
Joint
Bookrunner, Joint Lead Arranger and Lender
|
|
Total
|
U.S.$1,000,000,000.00
|