Exhibit 4.10
EXECUTION COPY
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REIMBURSEMENT AND CREDIT AGREEMENT
AMONG
CEMEX, S.A. DE C.V.,
AS ISSUER
CEMEX MEXICO, S.A. DE C.V.,
AS GUARANTOR
EMPRESAS TOLTECA DE MEXICO, S.A. DE C.V.,
AS GUARANTOR
BARCLAYS BANK PLC,
NEW YORK BRANCH,
AS ISSUING BANK, DOCUMENTATION AGENT AND
ADMINISTRATIVE AGENT
AND
THE SEVERAL LENDERS PARTY HERETO,
AND
BARCLAYS CAPITAL,
THE INVESTMENT BANKING DIVISION
OF BARCLAYS BANK PLC,
AS JOINT ARRANGER
AND
BANC OF AMERICA SECURITIES LLC
AS JOINT ARRANGER AND SYNDICATION AGENT
U.S.$275,000,000
DATED AS OF AUGUST 26, 2002
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TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS...................................................................................2
1.01 Certain Definitions...........................................................................2
1.02 Other Definitional Provisions................................................................18
1.03 Accounting Terms and Determinations..........................................................19
ARTICLE II THE LETTER OF CREDIT FACILITY................................................................19
2.01 Issuance of the Letter of Credit.............................................................19
2.02 Reimbursement Obligations....................................................................19
2.03 Obligations Absolute.........................................................................20
2.04 Participating Interests......................................................................21
2.05 Limited Liability of the Issuing Bank........................................................24
2.06 Defaulting Lenders...........................................................................24
2.07 Non-Default Disruption Event.................................................................26
2.08 Maximum Interest Rate........................................................................27
ARTICLE III THE LOAN FACILITY............................................................................28
3.01 Commitments to Lend..........................................................................28
3.02 Notice of Borrowing..........................................................................29
3.03 Notice to Lenders; Funding of Loans..........................................................30
3.04 Notes........................................................................................31
3.05 Conversion and Continuation of Loans.........................................................32
3.06 Maturity of Loans............................................................................33
3.07 Interest Rates...............................................................................33
3.08 Computation of Interest......................................................................33
3.09 Optional Prepayments.........................................................................34
3.10 Mandatory Prepayments........................................................................34
3.11 Maximum Interest Rate........................................................................35
ARTICLE IV THE STANDBY L/C FACILITY.....................................................................35
4.01 Issuance of the Standby L/C..................................................................35
4.02 Reimbursement Obligations....................................................................36
4.03 Obligations Absolute.........................................................................36
4.04 Participating Interests......................................................................37
4.05 Limited Liability of the Issuing Bank........................................................40
ARTICLE V TERMINATION AND REDUCTION OF COMMITMENTS; FEES, TAXES, PAYMENT PROVISIONS....................40
5.01 Termination or Reduction of Commitments......................................................40
5.02 Extension of Commitments.....................................................................42
5.03 Fees.........................................................................................42
(a) Participation Fee.......................................................................42
(b) Letter of Credit Fees...................................................................42
(c) Standby L/C Fees........................................................................42
(d) Agency Fees.............................................................................42
(e) Arrangement Fees........................................................................43
(f) Depositary Fees.........................................................................43
(g) Up-Front Fee............................................................................43
5.04 Computation of Fees..........................................................................43
5.05 Taxes........................................................................................43
5.06 General Provisions as to Payments............................................................45
5.07 Funding Losses...............................................................................46
5.08 Basis for Determining Interest Rate Inadequate or Unfair.....................................46
5.09 Illegality...................................................................................46
5.10 Increased Costs; Capital Adequacy............................................................46
5.11 Substitute Lenders...........................................................................48
5.12 Sharing of Payments, Etc.....................................................................48
ARTICLE VI CONDITIONS PRECEDENT.........................................................................49
6.01 Conditions to Effectiveness..................................................................49
(a) Agreement...............................................................................49
(b) Notes...................................................................................49
(c) Depositary Agreement and Dealer Agreements..............................................49
(d) Opinions of Issuer's and each Guarantor's Counsel.......................................49
(e) Opinion of Counsel to the Administrative Agent..........................................49
(f) Opinion of Counsel to the Issuing Bank..................................................49
(g) Opinions of Counsel to the Depositary...................................................50
(h) Governmental Approvals..................................................................50
(i) Organizational Documents of the Issuer and the Guarantors...............................50
(j) Agent for Service of Process............................................................50
(k) Ratings.................................................................................50
(l) Fees and Expenses.......................................................................50
(m) No Default..............................................................................51
(n) Representations and Warranties..........................................................51
(o) No Material Adverse Effect..............................................................51
(p) Other Documents.........................................................................51
6.02 Conditions Precedent to the Issuance of Commercial Paper Notes...............................51
6.03 Conditions Precedent to Borrowings, Continuation or Conversion of the Loans and Standby L/Cs.52
ARTICLE VII REPRESENTATIONS AND WARRANTIES OF THE ISSUER.................................................53
7.01 Corporate Existence and Power................................................................53
7.02 Power and Authority; Enforceable Obligations.................................................53
7.03 Compliance with Law and Other Instruments....................................................53
7.04 Governmental Approvals.......................................................................54
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7.05 Financial Information........................................................................54
7.06 Litigation...................................................................................54
7.07 No Immunity..................................................................................54
7.08 Investment Company Act.......................................................................55
7.09 Direct Obligations; Pari Passu; Liens........................................................55
7.10 Subsidiaries.................................................................................55
7.11 Ownership of Property........................................................................55
7.12 No Recordation Necessary.....................................................................55
7.13 Taxes........................................................................................56
7.14 Compliance with Laws.........................................................................56
7.15 Absence of Default...........................................................................56
7.16 Full Disclosure..............................................................................56
7.17 Choice of Law; Submission to Jurisdiction and Waiver of Sovereign Immunity...................56
ARTICLE VIII REPRESENTATIONS AND WARRANTIES OF THE GUARANTORS.............................................57
8.01 Corporate Existence and Power................................................................57
8.02 Power and Authority; Enforceable Obligations.................................................57
8.03 Compliance with Law and Other Instruments....................................................57
8.04 Governmental Approvals.......................................................................57
8.05 No Immunity..................................................................................58
8.06 Direct Obligations; Pari Passu; Liens........................................................58
8.07 No Recordation Necessary.....................................................................58
8.08 Choice of Law; Submission to Jurisdiction and Waiver of Sovereign Immunity...................58
ARTICLE IX AFFIRMATIVE COVENANTS........................................................................58
9.01 Financial Reports and Other Information......................................................59
9.02 Notice of Default and Litigation.............................................................59
9.03 Compliance with Laws and Contractual Obligations, Etc........................................60
9.04 Payment of Obligations.......................................................................60
9.05 Maintenance of Insurance.....................................................................60
9.06 Conduct of Business and Preservation of Corporate Existence..................................60
9.07 Books and Records............................................................................61
9.08 Maintenance of Properties, Etc...............................................................61
9.09 Use of Proceeds..............................................................................61
9.10 Pari Passu Ranking...........................................................................61
9.11 Transactions with Affiliates.................................................................61
9.12 Maintenance of Governmental Approvals........................................................61
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ARTICLE X NEGATIVE COVENANTS...........................................................................62
10.01 The Commercial Paper Notes...................................................................62
10.02 Securities Act...............................................................................62
10.03 Offering Statements..........................................................................62
10.04 Depositary; Dealers; Depositary Agreement....................................................62
10.05 Financial Conditions.........................................................................63
10.06 Liens........................................................................................63
10.07 Consolidations and Mergers...................................................................64
10.08 Sales of Assets, Etc.........................................................................65
10.09 Change in Nature of Business.................................................................65
10.10 Margin Regulations...........................................................................66
ARTICLE XI OBLIGATIONS OF GUARANTORS....................................................................66
11.01 The Guaranty.................................................................................66
11.02 Nature of Liability..........................................................................66
11.03 Unconditional Obligations....................................................................66
11.04 Independent Obligation.......................................................................67
11.05 Waiver of Notices............................................................................67
11.06 Waiver of Defenses...........................................................................67
11.07 Bankruptcy and Related Matters...............................................................68
11.08 No Subrogation...............................................................................69
11.09 Right of Contribution........................................................................69
11.10 General Limitation on Guaranty...............................................................70
11.11 Covenants of the Guarantors..................................................................70
ARTICLE XII EVENTS OF DEFAULT............................................................................70
12.01 Events of Default............................................................................70
(a) Payment Defaults........................................................................70
(b) Representation and Warranties...........................................................70
(c) Specific Defaults.......................................................................71
(d) Other Defaults..........................................................................71
(e) Defaults under Other Agreements.........................................................71
(f) Voluntary Bankruptcy....................................................................71
(g) Involuntary Bankruptcy..................................................................71
(h) Monetary Judgment.......................................................................71
(i) Pari Passu..............................................................................72
(j) Validity of Agreement...................................................................72
(k) Governmental Authority..................................................................72
(l) Expropriation, Etc......................................................................72
(m) Moratorium; Availability of Foreign Exchange............................................72
(n) Material Adverse Effect.................................................................72
(o) Attachments of Accounts.................................................................72
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(p) Change of Ownership or Control..........................................................72
12.02 Remedies.....................................................................................73
12.03 Notice of Default............................................................................74
12.04 Default Interest.............................................................................74
ARTICLE XIII THE ADMINISTRATIVE AGENT.....................................................................74
13.01 Appointment and Authorization................................................................74
13.02 Delegation of Duties.........................................................................75
13.03 Liability of Administrative Agent............................................................75
13.04 Reliance by Administrative Agent.............................................................75
13.05 Notice of Default............................................................................76
13.06 Credit Decision..............................................................................76
13.07 Indemnification..............................................................................77
13.08 Administrative Agent in Individual Capacity..................................................77
13.09 Successor Administrative Agent...............................................................77
ARTICLE XIV THE ISSUING BANK.............................................................................78
14.01 Appointment..................................................................................78
14.02 Liability of Issuing Bank....................................................................78
14.03 Reliance by Issuing Bank.....................................................................79
14.04 Credit Decision..............................................................................79
14.05 Indemnification..............................................................................80
14.06 Issuing Bank in Its Individual Capacity......................................................80
14.07 Notice of Default............................................................................80
ARTICLE XV THE ARRANGERS................................................................................81
15.01 The Arrangers................................................................................81
15.02 Liability of Arrangers.......................................................................81
15.03 Arrangers in their respective Individual Capacities..........................................81
15.04 Credit Decision..............................................................................81
ARTICLE XVI MISCELLANEOUS................................................................................82
16.01 Notices......................................................................................82
16.02 Amendments and Waivers.......................................................................82
16.03 No Waiver; Cumulative Remedies...............................................................83
16.04 Payment of Expenses, Etc.....................................................................84
16.05 Indemnification..............................................................................84
16.06 Successor and Assigns........................................................................85
16.07 Right of Set-off.............................................................................87
16.08 Confidentiality..............................................................................87
16.09 Use of English Language......................................................................87
16.10 GOVERNING LAW................................................................................87
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16.11 Submission to Jurisdiction...................................................................88
16.12 Appointment of Agent for Service of Process..................................................88
16.13 Waiver of Sovereign Immunity.................................................................89
16.14 Judgment Currency............................................................................89
16.15 Counterparts.................................................................................89
16.16 Effect of Termination of Commitments.........................................................90
16.17 Severability.................................................................................90
16.18 Survival of Agreements and Representations...................................................90
SCHEDULES
Schedule 1.01(a) Commitments
Schedule 1.01(b) Lending Offices
Schedule 7.06 Litigation
Schedule 7.10 Subsidiaries
Schedule 10.06 Liens
EXHIBITS
Exhibit A Form of Letter of Credit
Exhibit B Form of Note
Exhibit C Form of Depositary Agreement
Exhibit D Form of Notice of Borrowing
Exhibit E Form of Notice of Continuation/Conversion
Exhibit F Form of Assignment and Assumption Agreement
Exhibit G Form of Opinion of Special New York Counsel to the Issuer and the Guarantors
Exhibit H Form of Opinion of Mexican Counsel to the Issuer and the Guarantors
Exhibit I Form of Standby Letter of Credit
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REIMBURSEMENT AND CREDIT AGREEMENT
REIMBURSEMENT AND CREDIT AGREEMENT, dated as of August 26,
2002 among CEMEX, S.A. DE C.V., a sociedad anonima de capital variable
organized and existing pursuant to the laws of the United Mexican States (the
"Issuer"), CEMEX MEXICO, S.A. DE C.V., a sociedad anonima de capital variable
organized and existing pursuant to the laws of the United Mexican States,
EMPRESAS TOLTECA DE MEXICO, S.A. DE C.V., a sociedad anonima de capital
variable organized and existing pursuant to the laws of the United Mexican
States (each a "Guarantor" and together, the "Guarantors"), BARCLAYS BANK PLC,
NEW YORK BRANCH, as Issuing Bank, Documentation Agent and Administrative
Agent, the several Lenders party hereto, and BARCLAYS CAPITAL, THE INVESTMENT
BANKING DIVISION OF BARCLAYS BANK PLC, as a Joint Arranger and BANC OF AMERICA
SECURITIES LLC, as a Joint Arranger and Syndication Agent.
RECITALS
(1) The Issuer proposes to issue and sell its
promissory notes in the United States commercial paper market supported by a
letter of credit issued by the Issuing Bank, and, to provide liquidity support
therefor in the event of certain market disruptions, the Issuer desires to
obtain from the Lenders commitments to make loans in an aggregate principal
amount (together with any outstanding commercial paper notes and outstanding
Standby L/Cs (as defined herein) and unreimbursed drawings under the letters
of credit issued hereunder) not in excess of U.S.$275,000,000 at any one time
outstanding.
(2) The Issuer wishes the Stated Amount (as defined
herein) to include a sublimit of U.S.$100,000,000 for the issuance of standby
letters of credit in accordance with the provisions of this Agreement in
support of certain obligations of the Issuer and any of its Subsidiaries,
including, without limitation, standby letters of credit in support of
contingent liabilities arising in connection with forward sale contracts,
leases, insurance contracts and arrangements, service contracts, equipment
contracts, financing transactions and other payment obligations.
(3) Upon the terms and subject to the conditions set
forth below, the Issuing Bank is willing to issue an irrevocable direct-pay
letter of credit in the stated amount of U.S.$275,000,000 to provide for the
repayment of outstanding commercial paper notes of the Issuer issued in the
United States commercial paper market, in accordance with the provisions of
this Agreement and the Depositary Agreement and to issue standby letters of
credit to provide support for obligations of the Issuer and its Subsidiaries
in accordance with the terms of this agreement.
(4) The Lenders are willing to participate in the
letters of credit issued by the Issuing Bank and to make loans to the Issuer
upon the terms and subject to the conditions hereinafter set forth.
NOW, THEREFORE, the Issuer, the Issuing Bank, the Lenders,
the Administrative Agent and the Joint Arrangers hereby agree as follows:
ARTICLE I
DEFINITIONS
1.01 Certain Definitions. As used in this Agreement,
the following terms shall have the following meanings:
"Acquired Subsidiary" means any Subsidiary acquired by the
Issuer 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 formed by the
Issuer or 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 Issuer or any
Subsidiary thereof has acquired an interest in any Person who is
deemed to be a Subsidiary under this Agreement and was not a
Subsidiary prior thereto.
"Adjusted Consolidated Net Tangible Assets" means, with
respect to any Person, the total assets of such Person and its
Subsidiaries (less applicable depreciation, amortization and other
valuation reserves), including any write-ups or restatements required
under Mexican GAAP (other than with respect to items referred to in
clause (ii) below), after deducting therefrom (i) all current
liabilities of such Person and its Subsidiaries (excluding the
current portion of long-term debt) and (ii) all goodwill, trade
names, trademarks, licenses, concessions, patents, unamortized debt
discount and expense and other intangibles, all as determined on a
consolidated basis in accordance with Mexican GAAP.
"Administrative Agent" means Barclays Bank PLC, New York
Branch, in its capacity as administrative agent for the Issuing Bank
and 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
5.10(a).
"Affiliate" of any specified Person means any other Person
who directly or indirectly, through one or more intermediaries,
controls or is controlled by, or is under common control with such
specified Person. For the purposes of this definition, "control" when
used with respect to any specified Person means the power to direct
the management and policies of such Person, directly or indirectly,
whether through the
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ownership of voting securities, by contract or otherwise; and the
terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Aggregate Reported Proceeds" means the aggregate net sales
price of any Commercial Paper Notes, i.e., the Face Amount thereof
less discount for interest and fees.
"Agreement" means this Reimbursement and Credit Agreement,
as from time to time amended, supplemented or otherwise modified.
"Arrangers" or "Joint Arrangers" means Barclays Capital, the
Investment Banking Division of Barclays Bank PLC, and Banc of America
Securities LLC, in their capacity as joint arrangers hereunder, and
each of their successors in such capacity.
"Assignee" has the meaning specified in Section 16.06(b).
"Assignment and Assumption Agreement" means an assignment
and assumption agreement in substantially the form of Exhibit F.
"Available Commitments" has the meaning specified in Section
3.01(f).
"Available Standby L/C Sublimit" means, at any time, the
lesser of (a)(i) U.S.$100,000,000 minus (ii) the Standby L/C Exposure
at such time, and (b) the Available Commitments.
"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
Bank of America, N.A. shall take effect at the opening of business on
the day specified in the public announcement of such change.
"Base Rate Loan" means any Loan made or maintained at a rate
of interest calculated with reference to the Base Rate.
"Borrowing" means the aggregate amount of Loans hereunder to
be made to the Issuer pursuant to Article III on a particular date by
the Lenders pro rata in accordance with their respective
Participation Percentages.
"Business Day" means any day other than a Saturday or Sunday
or other day on which commercial banks in New York City are
authorized or required by law to close.
"Capital Adequacy Regulation" means any guideline, request
or directive of any central bank or other similar Governmental
Authority, or any other law, rule or regulation, whether or not
having the force of law, in each case, regarding capital adequacy of
the Issuing Bank or any Lender.
"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
3
be classified and accounted for as capital leases on a balance sheet
of such Person under Mexican GAAP and, for the purposes of this
Agreement, the amount of such obligations at any time shall be the
capitalized amount thereof at such time determined in accordance with
Mexican GAAP.
"Capital Stock" means any and all shares, interests,
participations or other equivalents (however designed) of capital
stock of a corporation, any and all equivalent ownership interests in
a Person (other than a corporation) and any and all warrants, rights
or options to purchase any of the foregoing.
"Commercial Paper Account" means a special purpose account
established by the Depositary for the benefit of the Issuing Bank
pursuant to the Depositary Agreement.
"Commercial Paper Notes" means, collectively, the promissory
notes of the Issuer in book-entry form represented by the master note
in the form of Annex A to the Depositary Agreement, in each case
issued in accordance with the terms of the Depositary Agreement.
"Commitment" means, with respect to each Lender, the amount
set forth opposite the name of such Lender in Schedule 1.01(a) or in
any Assignment and Assumption Agreement, as such amount may be
reduced from time to time pursuant to Section 5.01 or 16.06 or
increased pursuant to Section 5.02, 5.11 or 16.06. The aggregate
amount of the Commitments of all the Lenders is referred to as the
"Commitments".
"Confidential Information" means information that the Issuer
or a Guarantor furnishes to the Administrative Agent or the Arrangers
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 Arrangers or such Lender from a source other than the
Issuer or a Guarantor that is not, to the best of the Administrative
Agent's, the Arrangers' or such Lender's knowledge, acting in
violation of a confidentiality agreement with the Issuer or Guarantor
or any other Person.
"Consolidated" refers to the consolidation of accounts in
accordance with Mexican GAAP.
"Consolidated EBITDA" means, for any period, the sum for the
Issuer and its Subsidiaries, determined on a consolidated basis of
(a) operating income (utilidad de operacion), (b) cash interest
income and (c) depreciation and amortization expense, in each case
determined in accordance with Mexican GAAP consistently applied for
such period. For the purposes of calculating Consolidated EBITDA for
any period of four consecutive fiscal quarters (each, a "Reference
Period") pursuant to any determination of the Consolidated Leverage
Ratio (but not Consolidated Fixed Charge Coverage Ratio), (i) if at
any time during such Reference Period the Issuers or any of its
Subsidiaries shall have made any Material Disposition, the
Consolidated EBITDA for such Reference Period shall be reduced by an
amount equal to the Consolidated EBITDA (if positive) attributable to
the property that is the subject of such Material Disposition for
such
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Reference Period and (ii) if at any time during such Reference
Period the Issuer or any of its Subsidiaries shall have made any
Material Acquisition, Consolidated EBITDA for such Reference Period
shall be calculated after giving pro forma effect thereto (including
the incurrence or assumption of any Debt) as if such Material
Acquisition had occurred on the first day of such Reference Period.
Additionally, if since the beginning of such Reference Period any
Person that subsequently shall have become a Subsidiary or was merged
or consolidated with the Issuer or any of its Subsidiaries as a
result of a Material Acquisition occurring during such Reference
Period shall have made any Disposition or Acquisition of property
that would have required an adjustment pursuant to clause (i) or (ii)
above if made by the Issuer or any of its Subsidiaries during such
Reference Period, Consolidated EBITDA for such period shall be
calculated after giving pro forma effect thereto as if such
Disposition or Acquisition had occurred on the first day of such
period.
"Consolidated Fixed Charges" means, for any period, means
the sum (without duplication) of (a) Consolidated Interest Expense
for such period, (b) mandatory dividend payments during such period
in respect of preferred Capital Stock of the Issuer or any of its
Subsidiaries and (c) to the extent not included in (a) above,
payments during such period in respect of the financing costs of
financial derivatives in the form of equity swaps.
"Consolidated Fixed Charge Coverage Ratio" means, for any
period, the ratio of (a) Consolidated EBITDA for such period to (b)
Consolidated Fixed Charges for such period.
"Consolidated Interest Expense" means, for any period, the
total gross interest expense of the Issuer and its consolidated
Subsidiaries allocable to such period in accordance with Mexican
GAAP.
"Consolidated Leverage Ratio" means, at any time during any
fiscal quarter, the ratio of (a) Consolidated Net Debt at such time
to (b) Consolidated EBITDA for the four consecutive fiscal quarters
immediately preceding such fiscal quarter.
"Consolidated Net Debt" means, at any date, the sum (without
duplication) of (a) the aggregate amount of all Debt of the Issuer
and its Subsidiaries at such date, plus (b) to the extent not
included in Debt the aggregate amount of all derivative financing in
the form of equity swaps outstanding at such date plus (c) to the
extent not included in Debt, all payment obligations of such Person
under (i) the 9.66% Puttable Capital Securities issued by CEMEX
International Capital LLC on May 14, 1998 or (ii) the Framework
Agreement, dated November 6, 2000, relating to the financing of the
subscription by New Sunward Holdings B.V. of the equivalent in euro
of U.S.$1,500,000,000 for common stock of Cia. Valenciana de Cementos
Portland, S.A. in connection with the acquisition of Southdown, Inc.
(the "Framework Agreement"), the Facility Agreement (as such term is
defined in the Framework Agreement) and the other documents and
instruments executed in connection with the Framework Agreement, or
under any transaction similar to (i) or (ii), minus (d) all Temporary
Investment of the Issuer and its Subsidiaries at such date.
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"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.
"CP Disruption Event" has the meaning specified in the
definition of "Non-Default Disruption Event" in this Section 1.01.
"Dealer" means Banc of America Securities LLC., Barclays
Capital Inc. and any other dealer or placement agent of the
Commercial Paper Notes appointed by the Issuer and approved by the
Arrangers and the Issuing Bank.
"Dealer Agreement" means any agreement between the Issuer
and any Dealer with respect to the issue and sale or placement of
Commercial Paper Notes, as amended, modified or supplemented from
time to time.
"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.
"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
2.06(a).
"Depositary" means U.S. Bank Trust National Association, in
its capacity as depositary, issuing agent and paying agent under the
Depositary Agreement and any successor depositary appointed in
accordance with the terms hereof and thereof.
"Depositary Agreement" means the Depositary Agreement among
the Issuer, the Issuing Bank, the Administrative Agent and the
Depositary in substantially the form of Exhibit C, as from time to
time amended, supplemented or otherwise modified.
"Disbursement Date" means, with respect to a Drawing, the
Business Day on which such Drawing is paid by the Issuing Bank, with
respect to a Standby L/C Drawing, the Business Day on which such
Standby L/C Drawing is paid by the Issuing Bank and, with respect to
a Loan under Section 3.01(f), the date on which such Loan is made.
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"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.
"Dow Jones Page 3750" means the display designated as page
"3750" on the Dow Jones Market Screen (formerly known as the Telerate
Service) or such other page as may replace the "3750" page on that
service or such other service or services as may be nominated by the
British Bankers' Association for the purpose of displaying London
interbank offered rates for Dollar deposits.
"Downgrading Event" has the meaning set forth in the
definition of "Non-Default Disruption Event" in this Section 1.01.
"Drawing" means a drawing made by the Depositary under the
Letter of Credit.
"Effective Date" has the meaning specified in Section 6.01.
"Environmental Action" means any audit procedure, action,
suit, demand, demand letter, claim, notice of non-compliance or
violation, notice of liability or potential liability, investigation,
proceeding, consent order or consent agreement relating in any way to
any Environmental Law, Environmental Permit or Hazardous Materials or
arising from alleged injury or threat of injury to health, safety or
the environment, including (a) by any Governmental Authority for
enforcement, cleanup, removal, response, remedial or other actions or
damages and (b) by any Governmental Authority or any third party for
damages, contribution, indemnification, cost recovery, compensation
or injunctive relief.
"Environmental Law" means any federal, state, local or
foreign statute, law, ordinance, rule, regulation, technical standard
(norma tecnica or norma oficial Mexicana), code, order, judgment,
decree or judicial agency interpretation, policy or guidance relating
to pollution or protection of the environment, health, safety or
natural resources, including those relating to the use, handling,
transportation, treatment, storage, disposal, release or discharge of
Hazardous Materials.
"Environmental Permit" means any permit, approval,
identification number, license or other authorization required under
any Environmental Law.
"Eurocurrency Liabilities" means, with respect to the
Issuing Bank or any Lender, the full reserve requirement percentage
imposed in respect of "Eurocurrency liabilities", as such term is
defined in Regulation D (or any successor provision) (including any
marginal, emergency, supplemental, special or other reserves) of the
Federal Reserve Board, applicable to the Issuing Bank or such Lender
for any day during an Interest Period.
7
"Eurodollar Business Day" means any Business Day on which
commercial banks are open in London for the transaction of
international business, including dealings in Dollar deposits in the
international interbank markets.
"Eurodollar Loan" means any Loan made or maintained at a
rate of interest calculated with reference to LIBOR.
"Events of Default" has the meaning specified in Section
12.01.
"Face Amount" of any Commercial Paper Note means the full
amount thereof payable at maturity.
"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 any written agreement as to the payment
of fees referred to in Section 5.03.
"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 154 of the Mexican Income Tax Law.
"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 authority), any entity or instrumentality
(including any court or tribunal) exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to
government.
"Guarantor" shall have 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
8
substances designated, classified or regulated as hazardous or toxic
or as a pollutant or contaminant under any applicable Environmental
Law.
"Illegality Event" has the meaning set forth in the
definition of "Non-Default Disruption Event" in this Section 1.01.
"Indemnified Party" has the meaning specified in Section
16.05.
"Interest Period" means, with respect to each Borrowing of
Eurodollar Loans, the period (i) commencing (A) on the date of such
Borrowing or conversion of Base Rate Loans into Eurodollar Loans or
(B) in the case of the continuation of Eurodollar Loans for a further
Interest Period, on the last day of the immediately preceding
Interest Period and (ii) ending one, two or three months thereafter
as the Issuer may elect in the applicable Notice of Borrowing or
Notice of Continuation/Conversion; provided, however, that:
(a) any Interest Period which would otherwise end on a day
which is not a Eurodollar Business Day shall, subject to paragraph
(c) below, be extended to the next succeeding Eurodollar Business Day
unless such Eurodollar Business Day falls in another calendar month,
in which case such Interest Period shall end on the immediately
preceding Eurodollar Business Day;
(b) any Interest Period which begins on the last Eurodollar
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 (c) below, end on
the last Eurodollar Business Day of a calendar month;
(c) any Interest Period which would otherwise end after the
last day of the Loan Period shall end on the last day of the Loan
Period; and
(d) any Interest Period which would otherwise end after the
Maturity Date shall end on the Maturity Date.
"Issuer" has the meaning specified in the preamble hereto.
"Issuer Deposit Amount" has the meaning specified in Section
2.02(d).
"Issuing Bank" means Barclays Bank PLC, New York Branch, in
its capacity as issuer of the Letter of Credit and of Standby L/Cs,
and its successors in such capacity.
"Lender" means each financial institution listed on the
signature pages hereof, each Assignee which becomes a Lender pursuant
to Section 5.02(b) or 16.06(b), each Substitute Lender and each of
their respective successors or assigns.
"Lending Office" means, with respect to any Lender, (a) the
office or offices of such Lender specified as its "Lending Office" or
"Lending Offices" in Schedule 1.01(b) or (b) such other office or
offices of such Lender as it may designate as its Lending
9
Office by notice to the Issuer and the Administrative Agent and with
the consent of the Issuing Bank (which shall not be unreasonably
withheld).
"Letter of Credit" means the irrevocable direct-pay letter
of credit of the Issuing Bank in substantially the form of Exhibit A,
issued to the Depositary, as the Letter of Credit may be amended or
replaced from time to time pursuant to the terms of this Agreement.
"Letter of Credit Account" has the meaning specified in the
Depositary Agreement.
"Letter of Credit Exposure" means, at any time, the sum,
without duplication, of (a) all Outstanding Commercial Paper Notes
plus (b) the aggregate unpaid amount at such time of all unreimbursed
Drawings made under the Letter of Credit which have not been
converted into Loans pursuant to Article III.
"Letter of Credit Facility" means the Letter of Credit, any
drafts presented thereunder, any Drawings (including any unreimbursed
Drawings), any obligations of the Issuer in respect of the foregoing
and any payments received by the Issuing Bank in respect of any of
the foregoing.
"Letter of Credit Fees" has the meaning specified in Section
5.03(b).
"LIBOR", applicable to any Interest Period, means the rate
for deposits in Dollars for a period equal to such Interest Period
quoted on the second Eurodollar Business Day prior to the first day
of such Interest Period, as such rate appears on Dow Jones Page 3750
as of 11:00 a.m. (London time) on such date as determined by the
Administrative Agent and notified to the Lenders and the Issuer on
such second prior Eurodollar Business Day. If LIBOR cannot be
determined based on the Dow Jones Page 3750, LIBOR means the
arithmetic mean (rounded upwards to the nearest 1/16%) of the rates
per annum, as supplied to the Administrative Agent, quoted by the
Reference Banks to prime banks in the London interbank market for
deposits in Dollars at approximately 11:00 a.m. (London time) two
Eurodollar Business Days prior to the first day of such Interest
Period in an amount approximately equal to the principal amount of
the Loans to which such Interest Period is to apply and for a period
of time comparable to such Interest Period.
"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 Issuer or any Subsidiary of the Issuer
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).
"Loan" has the meaning specified in Section 3.01(a).
10
"Loan Period" has the meaning specified in Section 3.01(a).
"Material Acquisition" any (a) acquisition of property or
series of related acquisitions of property that constitutes assets
comprising all or substantially all of an operating unit, division or
line of business or (b) acquisition of or other investment in the
Capital Stock of any Subsidiary or any Person which becomes a
Subsidiary or is merged or consolidated with the Issuer or any of its
Subsidiaries, in each case, which involves the payment of
consideration by the Issuer and its Subsidiaries in excess of
U.S.$25,000,000 (or the equivalent in other currencies).
"Material Adverse Effect" means a material adverse effect on
(a) the business, condition (financial or otherwise), operations,
performance, properties or prospects of the Issuer and its
Subsidiaries taken as a whole, (b) the rights and remedies of the
Administrative Agent or any Lender under this Agreement or any Note
or (c) the ability of the Issuer and/or the Guarantors to perform
their Obligations under this Agreement or any other Transaction
Document.
"Material Debt" means Debt (other than the Notes, the Letter
of Credit Exposure and the Standby L/C Exposure) of the Issuer and/or
one or more of its Subsidiaries, arising in one or more related or
unrelated transactions, in an aggregate principal amount outstanding
exceeding U.S.$50,000,000 (or the equivalent thereof in other
currencies).
"Material Disposition" means any Disposition of property or
series of related Dispositions of property that yields gross proceeds
to the Issuer or any of its Subsidiaries in excess of U.S.$25,000,000
(or the equivalent in other currencies).
"Material Subsidiary" means, at any date, (a) each
Subsidiary of the Issuer (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
Issuer and its Subsidiaries as of the end of the then most recently
ended fiscal quarter 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 Issuer and its Subsidiaries for the then most recently
ended fiscal quarter and (b) each Guarantor.
"Maturity Date" means, with respect to any Loan, the earlier
of (a) the Termination Date and (b) the last day of the Loan Period.
"Mexican GAAP" means, generally accepted accounting
principles in Mexico as in effect from time to time, except that for
purposes of Section 10.05, Mexican GAAP shall be determined on the
basis of such principles in effect on the date hereof and consistent
with those used in the preparation of the most recent audited
financial statements referred to in Section 7.05. In the event that
any change in Mexican GAAP shall occur and such change results in a
change in the method of calculation of financial covenants, standards
or terms in this Agreement, then the Issuer and the Administrative
Agent agree to enter into negotiations in order to amend such
provisions of this Agreement so as to equitably reflect such change
in Mexican GAAP with the desired
11
result that the criteria for evaluating the Issuer's financial
condition shall be the same after such change as if such change had
not been made. Until such time as such an amendment shall have been
executed and delivered by the Issuer, the Administrative Agent and
the Required Lenders, all financial covenants, standards and terms in
this Agreement shall continue to be calculated or construed as if
such change in Mexican GAAP had not occurred.
"Mexico" means the United Mexican States.
"Ministry of Finance" means the Ministry of Finance and
Public Credit of Mexico.
"Moody's" means Moody's Investors Service, Inc. or any
successor to the rating business thereof.
"Non-Default Disruption Date" means the first date to occur
which is both (a) a Disbursement Date and (b) a date on which a
Non-Default Disruption Event has occurred or is continuing.
"Non-Default Disruption Event" means (a) that for any reason
the cost of funds to the Issuer (which shall include all costs
associated with a borrowing, including commitment fees, Letter of
Credit Fees, Mexican withholding tax and all other out-of-pocket
costs actually incurred by or supported by the Issuer directly
related to the borrowing of funds which are customarily included in
determining the all-in cost of funds) from the issuance of Commercial
Paper Notes exceeds the cost to the Issuer of borrowing Loans or as a
result of a disruption in the market for Commercial Paper Notes the
Issuer is unable to sell new Commercial Paper Notes to repay maturing
Commercial Paper Notes (a "CP Disruption Event") as notified in
writing by the Issuer to the Issuing Bank, the Arrangers and the
Administrative Agent in accordance with the terms and provisions of
Section 2.07(a); or (b) (i) any introduction of, or change in, or
change in the interpretation or application of, any Requirement of
Law by any Governmental Authority that would make it unlawful for the
Issuing Bank to issue or maintain the Letter of Credit or (ii) any
declaration of a general banking moratorium by any of the United
States, the State of New York or Mexican banking authority (an
"Illegality Event"); or (c) a downgrading of the Issuing Bank's
short-term credit rating below A-2 by S&P or below P-2 by Moody's, as
notified by the Issuing Bank or the Administrative Agent to the
Issuer and the Dealers (a "Downgrading Event"); provided, however,
that so long as any Default or Event of Default has occurred and is
continuing, no Non-Default Disruption Event shall be deemed to exist.
"Note" means a promissory note of the Issuer in
substantially the form of Exhibit B, evidencing the obligation of the
Issuer to repay the Loans made by a Lender.
"Notice of Acceleration" means a notice from the
Administrative Agent to the Depositary pursuant to Section 12.02(b)
in substantially the form of Annex F to the Letter of Credit.
"Notice of Borrowing" has the meaning specified in Section
3.02(a).
12
"Notice of Continuation/Conversion" has the meaning
specified in Section 3.05(b).
"Notice of Default" means a notice from the Issuing Bank to
the Issuer and the Depositary pursuant to Section 12.02(a) in
substantially the form of Annex E-1 to the Letter of Credit.
"Notice of Default Reduction" means a notice from the
Depositary to the Issuing Bank pursuant to Section 12.02(a) in
substantially the form of Annex E-2 to the Letter of Credit.
"Notice of Reduction of Stated Amount" means a notice from
the Issuing Bank to the Depositary pursuant to Section 2.06(d),
5.01(c) or 5.11 in substantially the form of Annex G to the Letter of
Credit.
"Notice of Termination" means a notice from the Issuing Bank
to the Issuer and the Depositary pursuant to Section 12.02(a) in
substantially the form of Annex D to the Letter of Credit.
"Obligations" means, (a) as to the Issuer, all of the
indebtedness, obligations and liabilities of the Issuer to the
Lenders, the Issuing Bank, the Arrangers 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) as to each Guarantor, all
the indebtedness, obligations and liabilities of such Guarantor to
the Lenders the Issuing Bank, the Arrangers and the Administration
Agent now or in the future existing under or in connection with this
Agreement, whether direct or indirect, absolute or contingent, due or
to become due.
"Obligor" means the Issuer and each Guarantor.
"OECD Bank shall mean any bank organized under the laws of a
member of the Organization for Economic Cooperation and Development.
"Offering Statements" means (a) the Commercial Paper
Offering Memoranda of Barclays Capital Inc. and Banc of America
Securities LLC., relating to the offering of the Commercial Paper
Notes and any amendment or supplement thereto and (b) each other
document used by a Dealer in offering Commercial Paper Notes for
sale.
"Other Taxes" means any present or future stamp or
documentary taxes or any other excise or property taxes, charges,
imposts, duties, fees, deductions, withholdings 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.
"Outstanding" means all or any Commercial Paper Notes issued
at any time under the Depositary Agreement, except Commercial Paper
Notes (a) that have been paid through the Depositary or (b) that have
matured but have not been presented for payment
13
on the date of such maturity, but as to which funds for payment are
available in the Letter of Credit Account or as to which the
Presentment Deadline has passed. Funds which are subject to any writ,
order, judgment, warrant of attachment, execution or similar process
or which the Depositary determines were deposited in the Letter of
Credit Account in error shall be deemed not to be available for
payment in the Letter of Credit Account.
"Participant" has the meaning specified in Section 16.06(d).
"Participation Fee" has the meaning specified in Section
5.03(a).
"Participation Percentage" means, for any Lender, at any
time of determination thereof, a fraction having (a) as its numerator
the Total Exposure of such Lender as in effect at such time and (b)
as its denominator the aggregate amount of the Total Exposures of all
of the Lenders as in effect at such time.
"Permitted Liens" has the meaning specified in Section
10.06.
"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.
"Presentment Deadline" means, as to any Commercial Paper
Note, the date which is two Business Days after the maturity date
thereof.
"Prime Rate" means the rate of interest publicly announced
by Bank of America N.A. 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 Bank of America N.A. or any Lender in connection
with extensions of credit to debtors of any class, or generally.
"Process Agent" has the meaning specified in Section
16.12(a).
"Qualified Receivables Transaction" means any transaction or
series of transactions that may be entered into by the Issuer or any
Subsidiary pursuant to which the Issuer or any Subsidiary may sell,
convey or otherwise transfer to a Special Purpose Vehicle (in the
case of a transfer by the Issuer or any other Seller) and any other
person (in the case of a transfer by a Special Purpose Vehicle), or
may grant a security interest in, any Receivables Program Assets
(whether now existing or arising in the future); provided that:
(a) no portion of the indebtedness or any other obligations
(contingent or otherwise) of a Special Purpose Vehicle (i) is
guaranteed by the Issuer or any other Seller or (ii) is recourse to
or obligates the Issuer or any other Seller in any way such that the
requirements for off balance sheet treatment under Financial
Accounting Standards Bulletin 140 are not satisfied; and
14
(b) the Issuer and the other Sellers do not have any
obligation to maintain or preserve the financial condition of a
Special Purpose Vehicle or cause such entity to achieve certain
levels of operating results.
"Rating Agencies" means Moody's and S&P.
"Receivables" means all rights of the Issuer or any other
Seller to payments (whether constituting accounts, chattel paper,
instruments, general intangibles or otherwise, and including the
right to payment of any interest or finance charges), which rights
are identified in the accounting records of the Issuer or such Seller
as accounts receivable.
"Receivables Documents" means (a) a receivables purchase
agreement, pooling and servicing agreement, credit agreement,
agreements to acquire undivided interests or other agreement to
transfer, or create a security interest in, Receivables Program
Assets, in each case as amended, modified, supplemented or restated
and in effect from time to time entered into by the Issuer, another
Seller and/or a Special Purpose Vehicle, and (b) each other
instrument, agreement and other document entered into by the Issuer,
any other Seller or a Special Purpose Vehicle relating to the
transactions contemplated by the items referred to in clause (a)
above, in each case as amended, modified, supplemented or restated
and in effect from time to time.
"Receivables Program Assets" means (a) all Receivables which
are described as being transferred by the Issuer, another Seller or a
Special Purpose Vehicle pursuant to the Receivables Documents, (b)
all Receivables Related Assets in respect of such Receivables, and
(c) all collections (including recoveries) and other proceeds of the
assets described in the foregoing clauses.
"Receivables Program Obligations" means (a) notes, trust
certificates, undivided interests, partnership interests or other
interests representing the right to be paid a specified principal
amount from the Receivables Program Assets and (b) related
obligations of the Issuer, a Subsidiary of the Issuer or a Special
Purpose Vehicle (including, without limitation, rights in respect of
interest or yield hedging obligations, breach of warranty claims and
expense reimbursement and indemnity provisions).
"Receivables Related Assets" means with respect to any
"Receivables" (i) any rights arising under the documentation
governing or relating to such Receivables (including rights in
respect of liens securing such Receivables), (ii) any proceeds of
such Receivables, (iii) other assets which are customarily
transferred or in respect of which security interests are customarily
granted in connection with asset securitization transactions
involving accounts receivable.
"Reference Banks" means Bank of America N.A. and Barclays
Bank PLC.
"Required Lenders" means, at any time, Lenders (other than
Defaulting Lenders) having more than 50% of the sum of the Total
Exposures of all of the Lenders (other than Defaulting Lenders) at
such time.
15
"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.
"Seller" means the Issuer and any Subsidiary or other
affiliate of the Issuer (other than a Subsidiary or affiliate that is
a Special Purpose Vehicle) which is a party to a Receivables
Document.
"Settlement Limits" has the meaning specified in Section
10.01.
"S&P" means Standard & Poor's Ratings Corporation or any
successor to the rating agency business thereof.
"Special Purpose Vehicle" means a trust, partnership or
other special purpose person established by the Issuer and/or its
Subsidiaries to implement a Qualified Receivables Transaction.
"Standby L/Cs" means the standby letters of credit of the
Issuing Bank in substantially the form of Exhibit I, as they may be
amended or replaced from time to time pursuant to the terms of this
Agreement.
"Standby L/C Drawing" means a drawing made under a Standby
L/C.
"Standby L/C Exposure" means, at any time, the sum of (a)
the aggregate undrawn amount at such time of all outstanding Standby
L/Cs plus (b) the aggregate unpaid amount at such time of all
unreimbursed Standby L/C Drawings under all outstanding Standby L/Cs.
"Standby L/C Facility" means the Standby L/Cs, any Standby
L/C Drawing (including any unreimbursed Standby L/C Drawing), any
obligations of the Issuer in respect of the foregoing and the
payments received by the Issuing Bank in respect of any of the
foregoing.
"Stated Amount" means the stated amount of the Letter of
Credit, initially, U.S.$275,000,000, as such amount may be reduced,
increased or reinstated from time to time in accordance with the
terms of the Letter of Credit.
"Stated Termination Date" means, at any time, the date
specified in the Letter of Credit as the Stated Termination Date,
initially August 25, 2004.
"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
16
stock having ordinary voting power to elect a majority of the board
of directors of such corporation (irrespective of whether at the time
capital stock of any other class or classes of such corporation shall
or might have voting power upon the occurrence of any contingency not
in the control of such Person), (b) in the case of a limited
liability company, partnership or joint venture, the interest in the
capital or profits of such limited liability company, partnership or
joint venture or (c) in the case of a trust or estate, the beneficial
interest in such trust or estate, is at the time directly or
indirectly owned or controlled by (X) such Person, (Y) such Person
and one or more of its other Subsidiaries or (Z) one or more of such
Person's other Subsidiaries. For purposes of determining whether a
trust formed in connection with a Qualified Receivables Transaction
is a Subsidiary, notes, trust certificates, undivided interests,
partnership interests or other interests of the type described in
clause (a) of the definition of Receivables Program Obligations shall
be counted as beneficial interests in such trust.
"Substitute Lender" means a commercial bank or other
financial institution, acceptable to the Issuer, the Issuing Bank and
the Administrative Agent, each in its sole discretion, and approved
by the Arrangers (including such a bank or financial institution
which is already a Lender hereunder) which assumes all or a portion
of the Commitment of a Lender pursuant to the terms of this
Agreement.
"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 Issuing Bank and the
Administrative Agent, such taxes (including income taxes or franchise
taxes) as are imposed on or measured by its net income by the
jurisdiction (or any political subdivision thereof) under the laws of
which such Lender, the Issuing Bank or the Administrative Agent, as
the case may be, is organized or maintains a Lending Office or its
principal office or performs its functions as Administrative Agent or
as are imposed on the Lender, the Issuing Bank and the Administrative
Agent (as the case may be) as a result of a present or former
connection between the Lender, the Issuing Bank and the
Administrative Agent 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, the Issuing Bank 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 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).
"Temporary Investments" means, at any date, all amounts that
would, in conformity with Mexican GAAP consistently applied, be set
forth opposite the caption "cash and cash equivalent" ("efectivo y
equivalentes de efectivo") or "temporary
17
investments" ("inversiones temporales") on a consolidated balance
sheet of the Issuer at such date.
"Termination Date" means the date which is the earliest of
(a) the date on which the Letter of Credit is surrendered by the
Depositary to the Issuing Bank for cancellation, (b) the Stated
Termination Date and (c) the date specified in a Notice of
Termination or a Notice of Default delivered by the Issuing Bank in
accordance with the terms of 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, its share of the aggregate outstanding Letter of
Credit Exposure and its share of the aggregate outstanding Standby
L/C Exposure.
"Transaction Documents" means this Agreement, the Notes, the
Letter of Credit, the Standby L/Cs, the Depositary Agreement, the
Commercial Paper Notes and the Dealer Agreements.
"United States" means the United States of America,
including the States and the District of Columbia, but excluding its
territories and possessions.
"Up-Front Fee" has the meaning specified in Section 5.03(g).
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 Eurodollar
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.
18
1.03 Accounting Terms and Determinations. All accounting
and financing terms not specifically defined herein shall be construed in
accordance with Mexican GAAP.
ARTICLE II
THE LETTER OF CREDIT FACILITY
2.01 Issuance of the Letter of Credit.
(a) Upon at least one Business Day's prior notice from the
Issuer to the Issuing Bank, the Issuing Bank agrees, on the terms and subject
to the conditions hereinafter set forth, to issue and deliver the Letter of
Credit to the Depositary (with a copy to the Administrative Agent and the
Issuer) on the Effective Date, in the Stated Amount and expiring on or,
subject to the terms and conditions thereof, before the Stated Termination
Date.
(b) Each Lender hereby irrevocably authorizes the Issuing Bank
to issue the Letter of Credit under and in accordance with this Agreement, to
pay the amount of any draft presented under the Letter of Credit in accordance
with the terms and conditions thereof, to receive from the Issuer
reimbursement for Drawings and to take such action on its behalf under the
provisions of this Agreement and the Depositary Agreement and to exercise such
powers and to perform such duties hereunder and thereunder as are specifically
delegated to or required of the Issuing Bank by the terms hereof and thereof,
together with such powers as are reasonably incidental thereto.
2.02 Reimbursement Obligations.
(a) The Issuer agrees to reimburse the Issuing Bank (or cause
the Issuing Bank to be reimbursed as provided in the Depositary Agreement by
applying to such reimbursement the Aggregate Reported Proceeds of the sale of
new Commercial Paper Notes and any other amount deposited in the Commercial
Paper Account in accordance with paragraph (d) of this Section 2.02) for the
full amount of any Drawing paid by the Issuing Bank on the Disbursement Date;
provided, however, that in no event shall such reimbursement be made prior to
the time such Drawing is paid by the Issuing Bank.
(b) If a Non-Default Disruption Event occurs or continues to
exist on a Disbursement Date, the unreimbursed amount of the Drawing honored
on such date may, during the Loan Period and subject to the conditions of
Section 6.03, be converted into Loans in accordance with Section 3.01, and, at
the time such conversion becomes effective, the obligation of the Issuer to
reimburse the Issuing Bank under paragraph (a) above shall be discharged in an
amount equal to the aggregate principal amount paid by the Lenders to the
Administrative Agent for the account of the Issuing Bank pursuant to Section
3.03(b) and retained by the Issuing Bank. Any Drawing not converted into Loans
in accordance with Section 3.01 shall remain an unconditional and immediate
payment obligation of the Issuer.
(c) If the amount of any Drawing is not reimbursed in full on
the Disbursement Date (or as of the Disbursement Date as provided in Section
3.03(e)), then the amount thereof which is not so reimbursed shall bear
interest from the Disbursement Date until the date of actual payment
19
thereof or the date of conversion into Loans pursuant to Section 3.01 at a
rate per annum equal to the Base Rate plus 2.10%, payable on demand.
(d) Except as otherwise provided in Sections 2.02(b) and 3.01,
the Issuer agrees that it will meet its obligations under paragraph (a) above
by causing to be deposited on each maturity date of any Commercial Paper Note
in the Commercial Paper Account in immediately available funds an amount equal
to the aggregate Face Amount of all Commercial Paper Notes scheduled to mature
on such day less the Aggregate Reported Proceeds payable on or before 4:30
p.m. (New York City time) on account of the purchase price of Commercial Paper
Notes duly issued and delivered on such day in accordance with the provisions
of this Agreement and the Depositary Agreement and to be deposited in the
Commercial Paper Account (the amount to be so deposited by the Issuer in the
Commercial Paper Account being the "Issuer Deposit Amount").
(e) Except for the first issuance of Commercial Paper Notes
under the Depositary Agreement after the Effective Date, each issuance of
Commercial Paper Notes pursuant to the provisions of the Depositary Agreement
shall be deemed (i) an unconditional, irrevocable and absolute assignment by
the Issuer to the Issuing Bank of the proceeds of the sale of such Commercial
Paper Notes in an amount not to exceed the amount required to reimburse the
Issuing Bank in respect of any Drawing made on the same day under the Letter
of Credit and otherwise not reimbursed by the Issuer and (ii) an irrevocable
and absolute assignment by the Issuer to the Administrative Agent of any
remaining proceeds of the sale of such Commercial Paper Notes; provided,
however, that, the Administrative Agent shall remit or instruct the Depositary
to remit to the Issuer a portion of such remaining proceeds in an amount equal
to the excess of such remaining proceeds over such amount as the
Administrative Agent may instruct the Depositary to apply to payment of
principal and interest due and payable with respect to the Loans or any other
amounts due and payable under this Agreement (including any amounts due under
Section 12.02(c)).
2.03 Obligations Absolute.
(a) The obligations of the Issuer to reimburse the Issuing Bank
shall be absolute, unconditional and irrevocable, and shall be performed
strictly in accordance with the terms of this Agreement, under all
circumstances whatsoever, including the following circumstances:
(i) any lack of validity or enforceability of any
Transaction Document;
(ii) any amendment to or waiver of or any consent to
departure from the terms of any Transaction Document;
(iii) the existence of any claim, set-off, defense or other
right which the Issuer may have at any time against the Depositary or
any transferee of the Letter of Credit (or any Person for whom the
Depositary or any such transferee may be acting), any Dealer, the
Administrative Agent, the Issuing Bank or any Lender or any other
Person, whether in connection with this Agreement, any other
Transaction Document or any unrelated transaction;
20
(iv) any draft, statement or any other document presented
under the Letter of Credit proving to be forged, fraudulent, invalid
or insufficient in any respect or any statement therein being untrue
or inaccurate in any respect whatsoever; or
(v) payment by the Issuing Bank under the Letter of Credit
against presentation of a draft or document which does not comply
with the terms of the Letter of Credit.
(b) The Issuing Bank shall not be responsible to any Person:
(i) for the validity, genuineness or legal effect of any
document submitted to the Issuing Bank by any Person in connection
with the issuance of, or any Drawing under, the Letter of Credit;
provided, however, that nothing in this clause (i) shall relieve the
Issuing Bank from its obligations to honor a Drawing under the Letter
of Credit that strictly complies with the terms of the Letter of
Credit;
(ii) for errors, omissions, interruptions or delays in
transmission or delivery of any messages, by mail, cable, telegraph,
telex or otherwise, whether or not they be in cipher;
(iii) for any loss or delay in the transmission or otherwise
of any document required in order to make a Drawing under the Letter
of Credit or of the proceeds thereof;
(iv) for the misapplication by the beneficiary of the Letter
of Credit of the proceeds of any Drawing under the Letter of Credit;
or
(v) for any consequences arising from causes beyond the
control of the Issuing Bank (including, any acts of any Governmental
Authority);
provided, however, that the provisions of this Section 2.03 shall not limit
any right or claim the Issuer may have against the Issuing Bank to the extent
of any direct, as opposed to consequential or special, damages suffered by the
Issuer which the Issuer proves were caused by the Issuing Bank's gross
negligence or willful misconduct, it being understood that the existence of
any such right or claim shall not in any way affect the obligation of the
Issuer to reimburse the Issuing Bank for all Drawings under the Letter of
Credit.
2.04 Participating Interests.
(a) Each Lender, by its execution and delivery of this
Agreement, severally purchases from the Issuing Bank, without recourse to the
Issuing Bank, and the Issuing Bank hereby sells to each Lender, an undivided
interest, to the extent of such Lender's Participation Percentage, in the
Letter of Credit, all Drawings, all interest thereon and all other rights of
the Issuing Bank hereunder and under the Letter of Credit with respect
thereto.
(b) The liability of each Lender to the Issuing Bank as
described in Section 2.04(a) shall be absolute, irrevocable and unconditional
under any and all circumstances whatsoever and shall not be affected by any
circumstance, including:
21
(i) any set-off, counterclaim, defense or other right which
such Lender or any other Person may have against the Administrative
Agent, the Issuing Bank or any other Person for any reason
whatsoever;
(ii) the occurrence or continuance of a Default or Event of
Default or the termination of the Commitments or the expiration of
the Letter of Credit;
(iii) any adverse change in the condition (financial or
otherwise) of the Issuer;
(iv) any breach of any Transaction Document by any party
thereto;
(v) the fact that any condition precedent to the issuance of
Commercial Paper Notes was not in fact met;
(vi) any violation or asserted violation of law by any
Lender or any affiliate thereof;
(vii) the failure of any Lender to perform its obligations
hereunder; or
(viii) any other circumstance, happening or event
whatsoever, whether or not similar to any of the foregoing;
provided, however, that no Lender shall be liable for any portion of such
liability resulting from the Issuing Bank's gross negligence or willful
misconduct.
(c) As promptly as practicable upon becoming aware that the
Issuer has not reimbursed or will not reimburse or cause the Issuing Bank to
be reimbursed in full for any Drawing under the Letter of Credit in accordance
with Section 2.02(a) or 2.02(b) on any Disbursement Date, the Issuing Bank
shall notify the Administrative Agent which shall promptly notify each Lender
to such effect and each Lender shall (i) not later than 4:30 p.m. (New York
City time) on the Business Day such notice is received from the Administrative
Agent (if such notice is received at or prior to 12:00 noon (New York City
time)) or (ii) not later than 11:00 a.m. (New York City time) on the Business
Day following receipt of such notice (if such notice is received after 12:00
noon (New York City time)) pay to the Administrative Agent, at the
Administrative Agent's Payment Office, for the account of the Issuing Bank, an
amount equal to such Lender's Participation Percentage of such unreimbursed
Drawing. Notwithstanding clause (ii) of this paragraph (c), if a Lender does
not make available to the Administrative Agent on the Disbursement Date such
Lender's Participation Percentage of any unreimbursed Drawing, such Lender
shall be required to pay interest to the Administrative Agent for the account
of the Issuing Bank on its Participation Percentage of the amount of such
unreimbursed Drawing at the Federal Funds Rate from such Disbursement Date
until the date payment is received by the Administrative Agent; provided,
however, that if the Federal Funds Rate does not cover the Issuing Bank's cost
of funds, the applicable rate of interest shall be such rate as determined by
the Issuing Bank, in good faith, to be equal to its cost of funds; and
provided, further, that if any amount remains unpaid by any Lender for more
than five Business Days after receipt of notice, such Lender shall, commencing
on the day next following such fifth Business Day, pay interest to the
Administrative Agent for the account of the Issuing Bank at a rate per annum
equal to the
22
Federal Funds Rate plus 2%. Upon receipt of any such funds, the
Administrative Agent shall promptly pay such funds to the Issuing Bank.
(d) If the Administrative Agent receives a Lender's
Participation Percentage of any unreimbursed Drawing on the Disbursement Date
therefor, or if the Administrative Agent receives such payment together with
interest thereon in accordance with the provisions of the preceding paragraph
(c), such Lender shall be entitled to receive interest on its Participation
Percentage of such Drawing, as provided in paragraph (e)(ii) below, from the
Disbursement Date.
(e) The Issuing Bank agrees to pay promptly upon receipt to the
Administrative Agent for the account of each Lender (i) such Lender's
Participation Percentage of all amounts received from the Issuer directly or
indirectly (from the Commercial Paper Account or otherwise) in payment, in
whole or in part, of any unreimbursed Drawing, but only to the extent that
such Lender has paid in full its Participation Percentage of such Drawing to
the Administrative Agent for the account of the Issuing Bank pursuant to
paragraph (c) above and (ii) such Lender's Participation Percentage of any
interest received from the Issuer with respect to any such unreimbursed
Drawing, but only to the extent such Lender has paid in full its Participation
Percentage of such Drawing to the Administrative Agent for the account of the
Issuing Bank pursuant to paragraph (c) above.
(f) If, on account of the bankruptcy, insolvency, concurso
mercantil or governmental intervention (or similar event) of the Issuer, the
Issuing Bank or the Administrative Agent is required at any time (whether
before or after the Termination Date) to return to the Issuer or to a trustee,
receiver, liquidator, custodian or other similar official or any other Person,
any portion of the payments made by (or on behalf of) the Issuer to the
Administrative Agent for the account of the Issuing Bank (or directly to the
Issuing Bank) in reimbursement of any unreimbursed Drawing and interest
thereon, each Lender shall, on demand of the Issuing Bank or the
Administrative Agent, forthwith return to the Issuing Bank or the
Administrative Agent for the account of the Issuing Bank any amounts
transferred to such Lender by the Issuing Bank or the Administrative Agent in
respect thereof pursuant to the terms hereof plus such Lender's pro rata share
of any interest on such payments required to be paid to the Person recovering
such payments plus interest on all amounts so demanded from the day such
amounts are returned by the Issuing Bank or the Administrative Agent, as the
case may be, to the day such amounts are returned by such Lender to the
Issuing Bank or the Administrative Agent at a rate per annum for each day
equal to the Federal Funds Rate; provided, however, that if the Federal Funds
Rate does not cover the Issuing Bank's or the Administrative Agent's cost of
funds, the applicable rate of interest shall be such rate as determined by the
Issuing Bank or the Administrative Agent, in good faith, to be equal to its
cost of funds; and provided, further, that if any amount remains unpaid by any
Lender for more than five Business Days after demand, such Lender shall,
commencing on the day next following such fifth Business Day, pay interest to
the Issuing Bank or the Administrative Agent, as the case may be, at a rate
per annum equal to the Federal Funds Rate plus 2%. In any case when an amount
is returned to any Person pursuant to this paragraph (f), the reimbursement
obligation of the Issuer contained in Section 2.02(a) will be reinstated as of
the original date such reimbursement obligation arose.
23
(g) The Issuer hereby confirms and acknowledges that each Lender
shall have a direct claim against the Issuer for the principal of and interest
on each portion of any unreimbursed Drawing advanced by such Lender to the
Issuing Bank and that each Lender shall to the extent applicable be entitled
to all the rights of the Issuing Bank against the Issuer (to the extent not
exercised by the Issuing Bank) as if such Lender had funded its Participation
Percentage of the Drawing directly to the Depositary.
(h) The Issuing Bank and each Lender, with respect to the
amounts payable to it in respect of any unreimbursed Drawing, and the
Administrative Agent, with respect to all amounts payable in respect of
unreimbursed Drawings, shall maintain on its books in accordance with its
usual practice, loan accounts, setting forth its Participation Percentage of
each Drawing, the applicable interest rate and the amounts of principal and
interest paid and payable by the Issuer from time to time hereunder with
respect thereto; provided, however, that the failure by the Issuing Bank, any
Lender or the Administrative Agent to record any such amount on its books or
any error in such recordation shall not affect the obligations of the Issuer
with respect thereto. In the case of any dispute, action or proceeding
relating to any amount payable in respect of any unreimbursed Drawings, the
entries in each such account shall be prima facie evidence of such amount. In
case of any discrepancy between the entries in the Administrative Agent's
books and a Lender's books, such Lender's books shall be considered correct in
the absence of manifest error. In the case of any discrepancy between the
entries in the Issuing Bank's books and any Lender's books or the
Administrative Agent's books, the Issuing Bank's books shall be considered
correct in the absence of manifest error.
2.05 Limited Liability of the Issuing Bank. As between
the Issuing Bank on the one hand, and the Issuer on the other, the Issuer
assumes all risks of any acts or omissions of the Depositary with respect to
its use of the Letter of Credit or the proceeds thereof. Neither the Issuing
Bank nor any of its employees, officers, directors or agents shall be liable
or responsible for any acts or omissions of the Depositary in connection
therewith.
2.06 Defaulting Lenders.
(a) If any Lender (i) fails to reimburse the Issuing Bank as
provided in Sections 2.04(c) and 4.04(c) or to make available its
Participation Percentage of any Borrowing as provided in Section 3.03(b)
within five Business Days after the Disbursement Date, (ii) is in receivership
or liquidation, (iii) advises the Issuing Bank or the Administrative Agent or
the Issuer that it will be unable or unwilling to fund its Participation
Percentage of any future unreimbursed Drawing or Standby L/C Drawing, as the
case may be, or make available its Participation Percentage of any future
Borrowing or (iv) is prohibited by the central bank having jurisdiction over
such Lender from performing its obligations hereunder (any such Lender, a
"Defaulting Lender"), then the Issuing Bank may (but shall not be obligated
to) acquire, in exchange for the sum or sums due to it from such Defaulting
Lender, such Defaulting Lender's Participation Percentage of the unreimbursed
amount, without, however, relieving such Defaulting Lender from any liability
to the Issuing Bank as a result of its failure to reimburse the Issuing Bank
or make funds available to the Issuing Bank. Subject to paragraph (b) below,
the Issuing Bank, until repaid in full, shall be entitled to receive all
subsequent payments which the Defaulting Lender would otherwise have received
with respect to principal or interest on its Participation Percentage of any
unreimbursed Drawing, Standby L/C Drawing or any Loan, as
24
the case may be, or any fees or other amounts otherwise payable to it
hereunder, in each case to the extent the Issuing Bank has acquired such
participation. If a Lender shall fail, for any reason, to fund its
participation in any Drawing or Standby L/C Drawing, as the case may be, or
make available its Participation Percentage of any Borrowing, no other Lender
shall be obligated to purchase such Defaulting Lender's participation or make
funds available for such Defaulting Lender's Participation Percentage of any
Borrowing and no such failure shall release the Issuer from its obligation to
reimburse the Issuing Bank.
(b) Upon a Lender becoming a Defaulting Lender, the Arrangers,
at the request of the Issuer, shall use their commercially reasonable efforts
to find one or more Substitute Lenders willing to assume the Commitment of the
Defaulting Lender and, if applicable, purchase such Defaulting Lender's
Participation Percentage of any unreimbursed Drawings or Standby L/C Drawing,
as the case may be, or any outstanding Loans hereunder and become an Assignee
of such Defaulting Lender in accordance with the provisions of Section
16.06(b). Upon such assignment, the Defaulting Lender shall no longer be a
party hereto or have any rights hereunder and the Substitute Lender or
Substitute Lenders shall succeed to the rights and obligations of the
Defaulting Lender hereunder, including the obligation to reimburse the Issuing
Bank in accordance with Section 2.04(c) and 4.04(c) or to make Loans pursuant
to Section 3.03(b) except that such Defaulting Lender shall continue (i) to
have the rights of a Lender that survive assignment as provided in Section
16.18(b) and (ii) to be entitled to be paid for all amounts previously
advanced by it not theretofore paid and not assigned to the Substitute Lender
and to be paid interest thereon and any other amounts to which such Lender is
entitled in accordance with this Agreement.
(c) No Lender shall be deemed to be a Defaulting Lender solely
as a result of its inability to fund its Participation Percentage of any
unreimbursed Drawing or Standby L/C Drawing, as the case may be, or to make
available its Participation Percentage of any Borrowing in a timely manner as
a result of a difference in time zones or a breakdown or delay in the wire
transfer of funds.
(d) In the event a Lender has become a Defaulting Lender and the
Arrangers have been unable to find a Substitute Lender therefor within fifteen
Business Days after payment was due to the Issuing Bank, the Arrangers shall
so notify the Issuer and the Issuing Bank. At the request of the Issuing Bank,
upon delivery of a Notice of Reduction of Stated Amount, the Commitments will
be reduced by an amount equal to the Commitment of the Defaulting Lender with
respect to Commercial Paper Notes and Standby L/Cs thereafter issued and the
Participation Percentage of each other Lender shall be increased with respect
to Commercial Paper Notes and Standby L/Cs thereafter issued so as 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 other than the Defaulting Lender. No such reduction
in the Commitments shall in any way release any Defaulting Lender from any of
its direct or indirect obligations under Section 2.04 in respect of any
Commercial Paper Notes issued prior to the termination of its Commitment and
under Section 4.04 in respect of Standby L/Cs issued prior to the termination
of its Commitment. Upon the termination of the Commitment of the Defaulting
Lender and the payment of all Commercial Paper Notes issued prior to such
termination, the Issuing Bank shall cause the Stated Amount of the Letter of
Credit to be reduced, each time Commercial Paper Notes mature until an amount
equal to the Defaulting Lender's Commitment
25
is reached, by submitting to the Depositary a Notice of Reduction of Stated
Amount. Notwithstanding any reduction of the Commitments pursuant hereto, the
Arrangers will continue to use its commercially reasonable efforts to find a
Substitute Lender to replace the Defaulting Lender in the manner described in
Section 2.06(b). If a Substitute Lender is found, the total Commitments will
be increased by an amount equal to the Commitment of the Substitute Lender and
the Participation Percentage of each other Lender shall be reduced to a
fraction, the numerator of which is the Commitment of such other Lender and
the denominator of which equals the Commitments of all the Lenders, including
the Substitute Lender. Upon a subsequent increase in the Commitments as a
result of a Substitute Lender becoming a party hereto, the Stated Amount of
the Letter of Credit shall be increased by an amount equal to the Commitment
of the Substitute Lender but in no event by more than the Commitment of the
Defaulting Lender being replaced. The Issuing Bank may deliver a new Letter of
Credit to the Depositary in the reduced or increased Stated Amount or deliver
an amendment to the same effect.
(e) In the event a Lender has become a Defaulting Lender and the
Arrangers have been unable to find a Substitute Lender therefor within ten
Business Days after such Lender became a Defaulting Lender, the Issuer shall
pay to the Administrative Agent for the account of the Issuing Bank within
five Business Days after demand from the Issuing Bank all amounts then owing
by such Defaulting Lender to the Issuing Bank, together with interest thereon
at the Federal Funds Rate from the date such amounts became due; provided,
however, that if any amount remains unpaid by the Issuer for more than five
Business Days after demand, the Issuer shall, commencing on the day next
following such fifth Business Day, pay interest to the Issuing Bank at a rate
per annum equal to the Federal Funds Rate plus 2%.
2.07 Non-Default Disruption Event.
(a) If, based upon information provided by the Dealers regarding
prevailing interest rates in the United States commercial paper market, the
Issuer shall determine on any Business Day that a CP Disruption Event shall
have occurred, the Issuer shall cease issuing Commercial Paper Notes, and
written notice of such determination shall be given to the Issuing Bank, the
Arrangers and the Administrative Agent by the Issuer not later than 11:00
a.m., New York City time, on such Business Day. The Administrative Agent as
promptly thereafter as is possible under the circumstances shall give notice
of such determination to the Lenders. The Issuer shall also give notice to the
Depositary pursuant to the Depositary Agreement not to issue and deliver any
Commercial Paper Notes.
(b) If the Issuing Bank shall determine on any Business Day that
a Downgrading Event or an Illegality Event shall have occurred, then the
Issuing Bank shall immediately give notice to the Depositary pursuant to the
Depositary Agreement not to issue and deliver any Commercial Paper Notes. The
Issuing Bank shall give notice of such determination to the Issuer, the
Arrangers, the Administrative Agent and the Dealers as promptly thereafter as
is possible under the circumstances. The Administrative Agent as promptly as
is possible under the circumstances shall give notice of such determination to
the Lenders.
(c) In the event that the issuance of Commercial Paper Notes by
the Issuer is suspended as a result of this Section 2.07, the Issuer may incur
Loans in accordance with the
26
terms and provisions of Sections 3.01 and 3.02 by submitting to the
Administrative Agent a Notice of Borrowing.
(d) If the Dealers shall have advised the Issuer that a CP
Disruption Event has ceased to exist, then notice of such advice or
determination shall be given to the Issuing Bank, the Arrangers and the
Depositary and, if applicable, the Issuing Bank and the Administrative Agent
as soon as practicable. If any Loans are then outstanding, the Issuer shall
promptly either repay such Loans with its own funds or, if the Termination
Date has not yet occurred, instruct the Depositary and the Dealers to
recommence issuing Commercial Paper Notes and apply the Aggregate Reported
Proceeds of such issuance to fully repay the Loans and so notify the
Administrative Agent and the Administrative Agent shall in turn promptly
notify the Lenders and the Issuing Bank; provided, however, that if such Loans
are Eurodollar Loans, the Issuer shall not be required to repay such Loans
prior to the end of the applicable Interest Period therefor.
(e) If the Issuing Bank shall determine that a Downgrading Event
or an Illegality Event, as the case may be, shall have ceased to exist, then
the Issuing Bank shall immediately give written notice of such determination
to the Depositary, the Arrangers, the Administrative Agent, the Dealers, the
Lenders and the Issuer, whereupon the Issuer may recommence issuing Commercial
Paper Notes and the Issuing Bank shall revoke forthwith any instructions to
the Depositary not to issue and deliver Commercial Paper Notes. If any Loans
are then outstanding, the Issuer shall promptly either repay such Loans with
its own funds or, if the Termination Date has not yet occurred, instruct the
Depositary and the Dealers to recommence issuing Commercial Paper Notes and
apply the Aggregate Reported Proceeds of such issuance to fully repay the
Loans and so notify the Administrative Agent and the Administrative Agent
shall in turn promptly notify the Lenders and the Issuing Bank; provided,
however, that if such Loans are Eurodollar Loans, the Issuer shall not be
required to repay such Loans prior to the end of the applicable Interest
Period therefor.
(f) No suspension or termination of the issuance of Commercial
Paper Notes pursuant to this Section 2.07 shall affect, terminate or reduce
(i) the liability of the Issuing Bank under the Letter of Credit with respect
to Commercial Paper Notes validly issued in accordance with the Depositary
Agreement, (ii) the liability of the Issuer with respect to any Drawing under
the Letter of Credit, any Standby L/C Drawing under a Standby L/C or any Loan
hereunder or (iii) the liability of the Lenders to reimburse the Issuing Bank
for any unreimbursed Drawings or any unreimbursed Standby L/C Drawing.
2.08 Maximum Interest Rate. Anything in this Agreement
or any other Transaction Document to the contrary notwithstanding, (a) the
Issuer shall not issue any Commercial Paper Notes if the discount factor
thereof would be in excess of the maximum permitted by applicable law and (b)
if the interest rate provided for in Sections 2.02(c) or 4.04(c) would exceed
the maximum rate permitted by applicable law, such interest rate shall be
automatically reduced to the maximum rate legally allowable.
27
ARTICLE III
THE LOAN FACILITY
3.01 Commitments to Lend.
(a) If at any time during the term of this Agreement there shall
occur a Non-Default Disruption Event, then, on the terms and subject to the
conditions of this Agreement, including the conditions precedent specified in
Section 6.03, each Drawing paid by the Issuing Bank on any Disbursement Date
while such Non-Default Disruption Event is in existence in respect of
Commercial Paper Notes issued and Outstanding on such Non-Default Disruption
Date may be reimbursed by loans made pursuant to this Article III (such loans,
together with any Loans made pursuant to Section 3.01(f), being referred to
herein, collectively, as the "Loans"); provided, however, that no Loans may be
made, based on such Non-Default Disruption Event, after the end of the period
beginning on the Non-Default Disruption Date and ending on the date which is
the earlier of (i) the Stated Termination Date, (ii) 90 days after the
Non-Default Disruption Date and (iii) the date such Non-Default Disruption
Event ceases to exist and; provided, further, that there may be only one
Non-Default Disruption Event during the term of this Agreement (such period,
the "Loan Period").
(b) Each Lender severally agrees, on the terms and subject to
the conditions set forth in this Agreement, to make a Loan to the Issuer
pursuant to this Section 3.01, on the Disbursement Date in respect of each
Drawing made during the Loan Period, in an amount such that:
(i) the Total Outstandings of such Lender at any time will
not exceed the amount of its Commitment at such time; and
(ii) the amount of any Borrowing will not exceed the amount
of any Drawing being reimbursed with the proceeds of such Borrowing.
(c) The proceeds of Loans made under Section 3.01(a) hereof
shall be used solely to reimburse the Issuing Bank for payments made under the
Letter of Credit during the Loan Period (i) to pay Commercial Paper Notes
maturing on the Non-Default Disruption Date or (ii) during the continuance of
the Non-Default Disruption Event existing on the Non-Default Disruption Date,
to pay as they mature Commercial Paper Notes that were issued and Outstanding
on the Non-Default Disruption Date.
(d) The commitment of each Lender hereunder to make Loans is not
revolving in nature and any amounts borrowed hereunder during a Loan Period
and repaid or prepaid prior to the end of such Loan Period may not be
reborrowed during such Loan Period.
(e) Each Borrowing shall be made from the several Lenders
ratably in accordance with their Participation Percentages.
(f) During the existence of a Non-Default Disruption Event and
prior to the earlier of (i) the Stated Termination Date, (ii) 90 days after
the Non-Default Disruption Date and (iii) the date such Non-Default Disruption
Event ceases to exist, on the terms and subject to the conditions set forth in
this Agreement, including the conditions precedent specified in
28
Section 6.03, the Issuer may borrow Loans other than under Section 3.01(a)
above under the Available Commitments (as defined below) in a minimum amount
of U.S.$5,000,000 or in integral multiples of U.S.$1,000,000 in excess thereof
on any Business Day; provided that the Issuer shall give the Administrative
Agent notice as provided in Section 3.02. As used in this paragraph (f),
"Available Commitments" shall mean, as of any date, the total amount of the
Commitments minus the sum of (A) the aggregate principal amount of Commercial
Paper Notes Outstanding and unreimbursed Drawings, (B) the aggregate principal
amount of any Loans made under this Section 3.01 (whether or not still
outstanding) and (C) the Standby L/C Exposure.
3.02 Notice of Borrowing.
(a) Upon the occurrence of a Non-Default Disruption Event, the
Issuer may (but shall not be obligated to) request under Section 3.01(a) that
an amount up to the amount of any Drawing or Drawings made during the Loan
Period be converted into Loans by giving notice to the Administrative Agent on
or prior to 12:00 Noon (New York City time) on the date of any such Drawing.
In addition, the Issuer may (but shall not be obligated to) request Loans
under Section 3.01(f) by giving notice to the Administrative Agent by 3:00
p.m. (New York City time) at least three Business Days prior to the date of
Borrowing. Each such notice (a "Notice of Borrowing") may be made by telephone
to the Administrative Agent, if promptly confirmed in writing in substantially
the form of Exhibit D, and may be made by facsimile transmission to the
Administrative Agent in substantially the form of Exhibit D.
(b) The Notice of Borrowing shall specify (i) the aggregate
amount of such Borrowing, which shall be in a minimum amount equal to
U.S.$5,000,000 or multiples of U.S.$1,000,000 in excess thereof, or such
lesser amount, if necessary, pursuant to Section 3.01(b), (ii) whether the
Loans comprising such Borrowing shall bear interest based on the Base Rate or
LIBOR (provided that, in the case of Loans made under Section 3.01(a), all
such Loans will be Base Rate Loans during the initial period of at least three
Eurodollar Business Days after the date of the Notice of Borrowing) and (iii)
if such Loans are to be made as (in the case of Loans made under Section
3.01(f)) or converted into (in the case of any Loans made under Section
3.01(a)) Eurodollar Loans, the commencement date and the duration of the
initial Interest Period applicable to such Loans. The Notice of Borrowing
shall further certify that as of the date of such Notice of Borrowing:
(A) in the case of Loans made under Section 3.01(a), the
amount of such Borrowing does not exceed the aggregate amount of the
unreimbursed Drawing made on or prior to the date of such Notice of
Borrowing and that the Issuer elects to make a Borrowing in order to
reimburse the amount of such Drawing;
(B) no Default or Event of Default has occurred and is
continuing on such date or will result from such Borrowing;
(C) the representations and warranties of the Issuer
contained in this Agreement are true and correct in all material
respects on and as of such date; and
(D) a Non-Default Disruption Event has occurred and is
continuing.
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The Notice of Borrowing shall not be revocable by the Issuer
after the Administrative Agent has notified any Lender thereof.
3.03 Notice to Lenders; Funding of Loans.
(a) Upon receipt of a Notice of Borrowing, the Administrative
Agent shall promptly notify each Lender of the contents thereof and of such
Lender's Participation Percentage of such Borrowing.
(b) On the date of each Borrowing, each Lender shall, to the
extent such Lender has not already funded its Participation Percentage of the
corresponding unreimbursed Drawing being converted into Loans pursuant to
Section 2.04(c), make available its Participation Percentage of such
Borrowing, in immediately available funds, to the Administrative Agent at the
Administrative Agent's Payment Office not later than 3:00 p.m. (New York City
time) on the date notice is received from the Administrative Agent pursuant to
paragraph (a) above (if such notice is received at or prior to 1:30 p.m. (New
York City time)) or not later than 12:00 noon (New York City time) on the
Business Day following such notice (if such notice is received after 1:30 p.m.
(New York City time)). Unless the Administrative Agent determines that any
applicable condition specified in Section 6.03 has not been satisfied, the
funds so received from the Lenders shall be paid on the date of such Borrowing
(i) in the case of a Borrowing under Section 3.01(a), to the Issuing Bank on
behalf of the Issuer of the then outstanding unreimbursed Drawing and (ii) in
the case of a Borrowing under Section 3.01(f), to the Issuer by transfer to
the Issuer's account with the Administrative Agent. Upon receipt of such
funds, the Administrative Agent shall promptly pay such funds to the Issuing
Bank or to the Issuer, as the case may be.
(c) Unless the Administrative Agent shall have received notice
from a Lender prior to the date of any Borrowing that such Lender will not
make available to the Administrative Agent such Lender's Participation
Percentage of such Borrowing, the Administrative Agent may assume that such
Lender has made its Participation Percentage available to the Administrative
Agent on the date of such Borrowing in accordance with paragraph (b) above and
the Administrative Agent may (but shall not be required to do so), in reliance
upon such assumption, make available to the Issuing Bank or the Issuer, as the
case may be, on such date a corresponding amount. If such amount is made
available to the Administrative Agent on a date after the date on which the
Administrative Agent pays the proceeds of the Borrowing to the Issuing Bank or
the Issuer, as the case may be, such Lender shall pay to the Administrative
Agent on demand interest on such amount at the Federal Funds Rate for the
period from the date of such payment until such amount is made available to
the Administrative Agent. If such amount is not made available to the
Administrative Agent within five Business Days after the date of such payment,
the Issuer agrees to pay such amount to the Administrative Agent together with
interest thereon from the date of such payment at a rate per annum equal to
the Federal Funds Rate plus 2%; provided, however, that in the case of a
Borrowing under Section 3.01(a), if the Issuer fails to pay such amount to the
Administrative Agent within five Business Days after demand, the Issuing Bank
will return to the Administrative Agent the funds made available to it
together with interest thereon at the Federal Funds Rate from the date of
payment to it. If such Lender shall pay to the Administrative Agent such
corresponding amount, such amount so paid shall constitute such Lender's Loan
included in such Borrowing for purposes of this Agreement. Nothing contained
in this paragraph (c) shall be construed to excuse any Lender from performing
30
its obligations under this Agreement or to relieve any Lender from any
liability it may have to the Issuing Bank or the Issuer for any default by
such Lender in the performance of its obligations hereunder. Upon receipt of
such funds, the Administrative Agent shall promptly pay such funds to the
Issuing Bank or the Issuer, as the case may be.
(d) If and to the extent that any Lender is a Defaulting Lender,
the provisions of paragraphs (a), (b) and (e) of Section 2.06 shall apply and
(i) the Issuing Bank shall be entitled to receive all payments which the
Defaulting Lender would otherwise have received in respect of its unfunded
Participation Percentage of the Loans, (ii) the Arrangers, at the request of
the Issuer, may seek one or more Substitute Lenders willing to assume the
Commitment of the Defaulting Lender and to become an Assignee of such
Defaulting Lender in accordance with the provisions of Section 16.06(b) and
(iii) the Issuer shall reimburse the Issuing Bank as provided in paragraph (e)
of Section 2.06 without releasing the Defaulting Lender from any liability to
the Issuer for the default in the performance of its obligations hereunder.
(e) All Loans made to the Issuer shall be deemed made as of the
relevant Disbursement Date. If for any reason a Lender does not fund any Loan
to be made by it under Section 3.01(a) on such Disbursement Date (because
notice from the Administrative Agent was received after 1:30 p.m. (New York
City time) on such date or for any other reason) and the Administrative Agent
does not make the corresponding funds available to the Issuing Bank pursuant
to paragraph (c), such Lender shall also pay interest to the Administrative
Agent for the account of the Issuing Bank on its Participation Percentage of
the unreimbursed Drawing accrued from the Disbursement Date to the date of
payment by such Lender at the Federal Funds Rate; provided, however, that if
the Federal Funds Rate does not cover the Issuing Bank's cost of funds, the
applicable rate of interest shall be such rate as determined by the Issuing
Bank, in good faith, to be equal to its cost of funds; and provided, further,
however, that if any such amount remains unpaid by any Lender for more than
five Business Days after the Disbursement Date, such Lender shall, commencing
on the day next following such fifth Business Day, pay interest to the
Administrative Agent for the account of the Issuing Bank at a rate per annum
equal to the Federal Funds Rate plus 2%. Upon receipt of any such funds, the
Administrative Agent shall promptly pay such funds to the Issuing Bank.
3.04 Notes. The Loans made by each Lender shall be
evidenced by a Note appropriately completed, representing the obligation of
the Issuer to pay to such Lender the unpaid principal amount of all Loans made
by such Lender pursuant to Section 3.01, plus interest thereon as provided in
Section 3.07. The date, type, and principal amount of each Loan made by such
Lender and the date and amount of each payment or prepayment of the principal
amount of each such Loan, the date of each conversion and each continuation
pursuant to Section 3.05 and, in the case of Eurodollar Loans, the rate of
interest with respect thereto, shall be recorded by such Lender on the
Schedules annexed to its Note and such Schedules shall constitute prima facie
evidence of the accuracy of the information so recorded; provided, however,
that the failure of any Lender to make such recordation (or any error in such
recordation) shall not affect the obligations of the Issuer hereunder or under
the Notes.
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3.05 Conversion and Continuation of Loans.
(a) All Loans made under Section 3.01(a) shall initially be made
as Base Rate Loans. If so specified in the applicable Notice of Borrowing,
Loans made under Section 3.01(a) will be converted into Eurodollar Loans on or
after the third Eurodollar Business Day after the date of such Borrowing as
provided in the Notice of Borrowing.
(b) (i) All Eurodollar Loans shall initially have the
Interest Period specified by the Issuer in the applicable Notice of Borrowing.
Subject to the conditions set forth in Section 6.03, on the last day of the
Interest Period for such Loans, (A) provided such day is at least one month
prior to the end of the Loan Period, the Issuer may from time to time elect to
continue such Loans as Eurodollar Loans for an additional identical or
different Interest Period or (B) the Issuer may elect to convert such
Eurodollar Loans into Base Rate Loans.
(ii) Subject to the conditions set forth in Section
6.03, on any Eurodollar Business Day prior to the Maturity Date of any Base
Rate Loans, provided such day is at least one month prior to the end of the
Loan Period, the Issuer may elect to convert such Base Rate Loans into
Eurodollar Loans with an Interest Period ending no later than the last day of
the Loan Period.
(iii)....Each election to convert or continue any Loans
shall be made by giving the Administrative Agent irrevocable notice in
substantially the form of Exhibit E (a "Notice of Continuation/Conversion")
not later than 11:00 a.m. (New York City time) at least three Eurodollar
Business Days before the date on which continuation or conversion selected in
such notice is to be effective.
(iv) Each Notice of Continuation/Conversion shall specify:
(A) the Loans to which such notice applies;
(B) the date on which the continuation or conversion
selected in such notice is to be effective; and
(C) the duration of the Interest Period to be applicable to
the Loans to be continued as, or converted into, Eurodollar Loans
(which must comply with the provisions of the definition of Interest
Period); provided, however, that if the Issuer fails to select the
duration of any Interest Period, it will be deemed to have selected
an Interest Period of one month.
(c) If the Issuer fails to deliver a Notice of
Continuation/Conversion to the Administrative Agent for any Eurodollar Loans
on or prior to the third Eurodollar Business Day before the end of the
Interest Period therefor, the Issuer will be deemed to have elected to
continue such Eurodollar Loans for a further Interest Period of one month or,
if the last day of such Interest Period is less than one month prior to the
end of the Loan Period, to convert such Eurodollar Loans to Base Rate Loans.
If the conditions of Section 6.03 have not been satisfied, such Loans shall
automatically become due and payable on the last day of the then current
Interest Period.
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(d) Upon receipt of a Notice of Continuation/Conversion from the
Issuer, the Administrative Agent shall promptly notify the Lenders thereof.
3.06 Maturity of Loans. Each Loan included in any
Borrowing shall mature, and the principal amount thereof shall be due and
payable, on the Maturity Date.
3.07 Interest Rates.
(a) Each Base Rate Loan shall bear interest on the unpaid
principal amount thereof at a rate per annum equal to the sum of the Base Rate
plus 0.10%.
(b) Each Eurodollar Loan shall bear interest on the outstanding
principal amount thereof, for the Interest Period applicable thereto, at a
rate per annum equal to the sum of LIBOR plus 1.10%.
(c) If all or a portion of the principal amount of any Loan
shall not be paid when due (whether at maturity, by acceleration or
otherwise), (i) all Eurodollar Loans then outstanding shall be converted to
Base Rate Loans at the end of the then current Interest Period with respect
thereto and until such conversion shall bear interest at a rate per annum
equal to the sum of LIBOR plus 3.10% and (ii) the principal amount of all Base
Rate Loans (including any Eurodollar Loans converted to Base Rate Loans
pursuant to this paragraph (c)) shall bear interest at a rate per annum equal
to the sum of the Base Rate plus 2.10% from the date of non-payment (or the
date of conversion) until paid in full (after as well as before judgment) and
shall be payable on demand. If all or any portion of (A) any interest payable
on the principal amount of any Loan or (B) any fee or other amount payable
hereunder shall not be paid when due, such overdue amount shall bear interest
at a rate per annum equal to the sum of the Base Rate plus 2.10% from the date
of such non-payment until such amount is paid in full (after as well as before
judgment) and shall be payable on demand.
(d) Except as otherwise provided in paragraph (c) above,
interest shall be payable in arrears on the Maturity Date of each Loan, on the
last day of each Interest Period therefor, on the date of conversion of Base
Rate Loans into Eurodollar Loans pursuant to Section 3.05(a) or 3.05(b) and on
each date of prepayment or repayment of any Loans on the amount prepaid or
repaid.
3.08 Computation of Interest.
(a) All computations of interest for Base Rate Loans when the
Base Rate is determined by reference to the Prime Rate shall be made on the
basis of a year of 365 or 366 days, as the case may be, and actual days
elapsed. All other computations of interest shall be made on the basis of a
360-day year and actual days elapsed. Interest shall accrue during each period
during which interest is computed from the first day thereof to the last day
thereof.
(b) Each determination of an interest rate by the Administrative
Agent shall be conclusive and binding on the Issuer and the Lenders in the
absence of demonstrable error.
3.09 Optional Prepayments.
(a) The Issuer may, without premium or penalty, (i) upon at
least three Business Days' prior notice to the Administrative Agent prepay
Base Rate Loans in whole or in part and (ii) subject to the provisions of
Section 5.07, upon at least three Eurodollar Business Days' prior notice to
the Administrative Agent, prepay Eurodollar Loans, in whole or in part, by
paying the principal amount to be prepaid together with accrued interest
thereon to the date of prepayment. Each such optional prepayment shall be
applied to prepay the Loans to the Lenders ratably based on their
Participation Percentages. Amounts so applied to the prepayment or repayment
of Loans shall be applied first, if the payment date is the last day of an
Interest Period for any Loans, to pay such Loans until paid in full; and
second to pay such other Loans as the Issuer may, by notice to the
Administrative Agent, elect (or if the Issuer fails to give timely notice of
such election, as the Required Lenders at such time may select).
(b) Upon receipt of a notice of prepayment pursuant to this
Section 3.09, the Administrative Agent shall promptly notify each Lender of
the contents thereof and of such Lender's Participation Percentage of such
prepayment, and such notice of prepayment shall not thereafter be revocable by
the Issuer.
(c) Optional prepayments of Loans shall be in a minimum amount
equal to U.S.$5,000,000 and in integral multiples of U.S.$1,000,000 in excess
thereof or, if less, the aggregate principal amount of the Loans then
outstanding.
3.10 Mandatory Prepayments.
(a) If at any time the aggregate Total Outstandings of the
Lenders exceed the Commitments then in effect, the Issuer shall immediately
prepay outstanding Loans, repay unreimbursed Drawings, if any, and repay
unreimbursed Standby L/C Drawings, if any, to the extent of such excess,
ratably among the Lenders.
(b) Upon determination that a Non-Default Disruption Event has
ceased to exist and any Loans are then outstanding, the Issuer shall, as
provided in Sections 2.07(d) or (e), either repay such Loans with its own
funds or, if the Termination Date has not already occurred, instruct the
Depositary and the Dealers to recommence issuing Commercial Paper Notes as
soon as practicable (provided, that, in the case of Eurodollar Loans, the
Issuer shall recommence issuing Commercial Paper Notes not later than the last
day of the then current Interest Period therefor) and apply the Aggregate
Reported Proceeds of such issuance to repay such Loans. For so long as any
Loans are outstanding hereunder, the Issuer shall prepay or repay, on each
date that the Issuer issues Commercial Paper Notes, an aggregate principal
amount of Loans equal to the Aggregate Reported Proceeds of issuance of such
Commercial Paper Notes less the Face Amount of the Commercial Paper Notes, if
any, maturing on that date. All such prepayments or repayments shall be made
together with accrued and unpaid interest to the date of payment.
(c) Amounts applied to the prepayment or repayment of Loans
pursuant to this Section 3.10 shall be applied to prepay or repay the Loans of
the Lenders ratably in accordance with their Participation Percentages.
Amounts so applied to the prepayment or repayment of Loans shall be applied
first, if the payment date is the last day of an Interest Period for any
34
Loans, to pay such Loans until paid in full; and second to pay such other
Loans as the Issuer may, by notice to the Administrative Agent, elect (or if
the Issuer fails to give timely notice of such election, as the Required
Lenders at such time may select).
(d) Any prepayments of Eurodollar Loans pursuant to this Section
3.10 shall be subject to the provisions of Section 5.07.
3.11 Maximum Interest Rate. Anything in this Agreement
or any other Transaction Document to the contrary notwithstanding, (a) the
interest rate on any Loan or other amount due hereunder shall in no event be
in excess of the maximum permitted by applicable law and (b) if the interest
rate provided for in this ARTICLE III would exceed the maximum rate permitted
by applicable law, such interest rate shall be automatically reduced to the
maximum rate legally allowable.
ARTICLE IV
THE STANDBY L/C FACILITY
4.01 Issuance of the Standby L/C.
(a) Subject to the terms and conditions set forth herein,
including but not limited to the conditions precedent specified in Section
6.03, and so long as no Default or Event of Default shall have occurred and be
continuing, the Issuer may request the Issuing Bank to issue, in support of
certain obligations of the Issuer and any of its Subsidiaries including,
without limitation, contingent liabilities arising in connection with forward
sales contracts, leases, insurance contracts and arrangements, service
contracts, equipment contracts, financing transactions and other payment
obligations, and the Issuing Bank agrees to issue at any time from time to
time during the period from and including the Effective Date to but excluding
the date that is five Business Days prior to the Termination Date, a Standby
L/C denominated in Dollars for the Issuer's own account, and having a stated
amount not exceeding the Available Standby L/C Sublimit at the time of
issuance; provided, however, that the issuance of such requested Standby L/C
shall not cause the Issuing Bank to violate any law or regulation to which it
is subject.
(b) To request the issuance of a Standby L/C, the Issuer shall
deliver notice to the Issuing Bank requesting the issuance of a Standby L/C,
specifying the date of issuance (which shall be a Business Day that is no
earlier than either (i) the Business Day following the Business Day on which
the Issuing Bank shall have received the request for the issuance of the
Standby L/C, if such request is received by the Issuing Bank prior to
11:00a.m. (New York City time), or (ii) the Business Day that is two (2)
Business Days following the Business Day on which the Issuing Bank shall have
received the request for the issuance of the Standby L/C, if such request is
received is by the Issuing Bank after 11:00a.m. (New York City time) but
before 5:00p.m. (New York City time); provided however, that the Issuing Bank,
in its sole discretion and on a request by request basis, may elect to accept
a request for issuance of a Standby L/C specifying an issuance date not
complying with the terms of this parenthetical), the date on which such
Standby L/C is to expire, the amount of such Standby L/C, the name and address
of the beneficiary thereof and any such other information as shall be
necessary to prepare such Standby L/C. On the requested date of issuance, the
Issuing Bank shall, subject to the terms and
35
conditions set forth herein and so long as no Default or Event of Default
shall have occurred or be continuing, issue a Standby L/C in accordance with
the Issuer's request pursuant to this clause (b).
(c) Each Standby L/C shall have a minimum stated amount equal to
U.S.$3,000,000 and shall expire at or prior to the close of business on the
earlier of (a) the date that is 360 days after the date of issuance of such
Standby L/C and (b) the date that is five Business Days prior to the Stated
Termination Date.
(d) Each Lender hereby irrevocably authorizes the Issuing Bank
to issue Standby L/Cs under and in accordance with this Agreement, to pay the
amount of any draft presented under any Standby L/C in accordance with the
terms and conditions thereof, to receive from the Issuer reimbursement for
Standby L/C Drawings and to take such action on its behalf under the
provisions of this Agreement and the other Transaction Documents and to
exercise such powers and to perform such duties hereunder and thereunder as
are specifically delegated to or required of the Issuing Bank by the terms
hereof or thereof, together with such powers as are reasonably incidental
thereto.
4.02 Reimbursement Obligations.
(a) The Issuer agrees to reimburse the Issuing Bank for the full
amount of any Standby L/C Drawing paid by the Issuing Bank on the Disbursement
Date; provided, however, that in no event shall such reimbursement be made
prior to the time such Standby L/C Drawing is paid by the Issuing Bank.
(b) If the amount of any Standby L/C Drawing is not reimbursed
in full on the Disbursement Date, then the amount thereof which is not so
reimbursed shall bear interest from the Disbursement Date until the date of
actual payment thereof at a rate per annum equal to the Base Rate plus 2.10%,
payable on demand.
4.03 Obligations Absolute.
(a) The obligations of the Issuer to reimburse the Issuing Bank
shall be absolute, unconditional and irrevocable, and shall be performed
strictly in accordance with the terms of this Agreement, under all
circumstances whatsoever, including the following circumstances:
(i) any lack of validity or enforceability of any
Transaction Document;
(ii) any amendment to or waiver of or any consent to
departure from the terms of any Transaction Document;
(iii) the existence of any claim, set-off, defense or other
right which the Issuer may have at any time against the beneficiary
of any Standby L/C or any transferee of any Standby L/C (or any
Person for whom any such transferee may be acting), the
Administrative Agent, the Issuing Bank or any Lender or any other
Person, whether in connection with this Agreement, any other
Transaction Document or any unrelated transaction;
36
(iv) any draft, statement or any other document presented
under the a Standby L/C proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect whatsoever; or
(v) payment by the Issuing Bank under a Standby L/C against
presentation of a draft or document which does not comply with the
terms of such Standby L/C.
(b) The Issuing Bank shall not be responsible to any Person:
(i) for the validity, genuineness or legal effect of any
document submitted to the Issuing Bank by any Person in connection
with the issuance of, or any Standby L/C Drawing under, any Standby
L/C; provided, however, that nothing in this clause (i) shall relieve
the Issuing Bank from its obligations to honor a Standby L/C Drawing
under a Standby L/C that strictly complies with the terms of such
Standby L/C;
(ii) for errors, omissions, interruptions or delays in
transmission or delivery of any messages, by mail, cable, telegraph,
telex or otherwise, whether or not they be in cipher;
(iii) for any loss or delay in the transmission or otherwise
of any document required in order to make a Standby L/C Drawing under
a Standby L/C or of the proceeds thereof;
(iv) for the misapplication by the beneficiary of a Standby
L/C of the proceeds of a Standby L/C Drawing under such Standby L/C;
or
(v) for any consequences arising from causes beyond the
control of the Issuing Bank (including, any acts of any Governmental
Authority);
provided, however, that the provisions of this Section 4.03 shall not limit
any right or claim the Issuer may have against the Issuing Bank to the extent
of any direct, as opposed to consequential or special, damages suffered by the
Issuer which the Issuer proves were caused by the Issuing Bank's gross
negligence or willful misconduct, it being understood that the existence of
any such right or claim shall not in any way affect the obligation of the
Issuer to reimburse the Issuing Bank for all Standby L/C Drawings under
Standby L/Cs.
4.04 Participating Interests.
(a) Upon the issuance of each Standby L/C, without further
action on the part of the Issuing Bank and the Lenders, each Lender severally
purchases from the Issuing Bank, without recourse to the Issuing Bank, and the
Issuing Bank hereby sells to each Lender, an undivided interest, to the extent
of such Lender's Participation Percentage, in such Standby L/C, all
corresponding Standby L/C Drawings, all interest thereon and all other rights
of the Issuing Bank hereunder and under such Standby L/C with respect thereto.
(b) The liability of each Lender to the Issuing Bank as
described in Section 4.04(a) shall be absolute, irrevocable and unconditional
under any and all circumstances whatsoever and shall not be affected by any
circumstance, including:
37
(i) any set-off, counterclaim, defense or other right which
such Lender or any other Person may have against the Administrative
Agent, the Issuing Bank or any other Person for any reason
whatsoever;
(ii) the occurrence or continuance of a Default or Event of
Default or the termination of the Commitments or the expiration the
applicable Standby L/C;
(iii) any adverse change in the condition (financial or
otherwise) of the Issuer;
(iv) any breach of any Transaction Document by any party
thereto;
(v) any violation or asserted violation of law by any Lender
or any affiliate thereof;
(vi) the failure of any Lender to perform its obligations
hereunder; or
(vii) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing;
provided, however, that no Lender shall be liable for any portion of such
liability resulting from the Issuing Bank's gross negligence or willful
misconduct.
(c) As promptly as practicable upon becoming aware that the
Issuer has not reimbursed or will not reimburse or cause the Issuing Bank to
be reimbursed in full for a Standby L/C Drawing under any Standby L/C in
accordance with Section 4.02(a) or 4.02(b) on applicable Disbursement Date,
the Issuing Bank shall notify the Administrative Agent which shall promptly
notify each Lender to such effect and each Lender shall (i) not later than
4:30 p.m. (New York City time) on the Business Day such notice is received
from the Administrative Agent (if such notice is received at or prior to 12:00
noon (New York City time)) or (ii) not later than 11:00 a.m. (New York City
time) on the Business Day following receipt of such notice (if such notice is
received after 12:00 noon (New York City time)) pay to the Administrative
Agent, at the Administrative Agent's Payment Office, for the account of the
Issuing Bank, an amount equal to such Lender's Participation Percentage of
such unreimbursed Standby L/C Drawing. Notwithstanding clause (ii) of this
paragraph (c), if a Lender does not make available to the Administrative Agent
on the applicable Disbursement Date such Lender's Participation Percentage of
any unreimbursed Standby L/C Drawing, such Lender shall be required to pay
interest to the Administrative Agent for the account of the Issuing Bank on
its Participation Percentage of the amount of such unreimbursed Standby L/C
Drawing at the Federal Funds Rate from such Disbursement Date until the date
payment is received by the Administrative Agent; provided, however, that if
the Federal Funds Rate does not cover the Issuing Bank's cost of funds, the
applicable rate of interest shall be such rate as determined by the Issuing
Bank, in good faith, to be equal to its cost of funds; and provided, further,
that if any amount remains unpaid by any Lender for more than five Business
Days after receipt of notice, such Lender shall, commencing on the day next
following such fifth Business Day, pay interest to the Administrative Agent
for the account of the Issuing Bank at a rate per annum equal to the Federal
Funds Rate plus 2%. Upon receipt of any such funds, the Administrative Agent
shall promptly pay such funds to the Issuing Bank.
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(d) If the Administrative Agent receives a Lender's
Participation Percentage of an unreimbursed Standby L/C Drawing on the
corresponding Disbursement Date therefor, or if the Administrative Agent
receives such payment together with interest thereon in accordance with the
provisions of the preceding paragraph (c), such Lender shall be entitled to
receive interest on its Participation Percentage of such Standby L/C Drawing,
as provided in paragraph (e)(ii) below, from the applicable Disbursement Date.
(e) The Issuing Bank agrees to pay promptly upon receipt to the
Administrative Agent for the account of each Lender (i) such Lender's
Participation Percentage of all amounts received from the Issuer in payment,
in whole or in part, of an unreimbursed Standby L/C Drawing, but only to the
extent that such Lender has paid in full its Participation Percentage of such
Standby L/C Drawing to the Administrative Agent for the account of the Issuing
Bank pursuant to paragraph (c) above and (ii) such Lender's Participation
Percentage of any interest received from the Issuer with respect to any such
unreimbursed Standby L/C Drawing, but only to the extent such Lender has paid
in full its Participation Percentage of such Standby L/C Drawing to the
Administrative Agent for the account of the Issuing Bank pursuant to paragraph
(c) above.
(f) If, on account of the bankruptcy, insolvency, concurso
mercantil or governmental intervention (or similar event) of the Issuer, the
Issuing Bank or the Administrative Agent is required at any time (whether
before or after the Termination Date) to return to the Issuer or to a trustee,
receiver, liquidator, custodian or other similar official or any other Person,
any portion of the payments made by (or on behalf of) the Issuer to the
Administrative Agent for the account of the Issuing Bank (or directly to the
Issuing Bank) in reimbursement of any unreimbursed Standby L/C Drawing and
interest thereon, each Lender shall, on demand of the Issuing Bank or the
Administrative Agent, forthwith return to the Issuing Bank or the
Administrative Agent for the account of the Issuing Bank any amounts
transferred to such Lender by the Issuing Bank or the Administrative Agent in
respect thereof pursuant to the terms hereof plus such Lender's pro rata share
of any interest on such payments required to be paid to the Person recovering
such payments plus interest on all amounts so demanded from the day such
amounts are returned by the Issuing Bank or the Administrative Agent, as the
case may be, to the day such amounts are returned by such Lender to the
Issuing Bank or the Administrative Agent at a rate per annum for each day
equal to the Federal Funds Rate; provided, however, that if the Federal Funds
Rate does not cover the Issuing Bank's or the Administrative Agent's cost of
funds, the applicable rate of interest shall be such rate as determined by the
Issuing Bank or the Administrative Agent, in good faith, to be equal to its
cost of funds; and provided, further, that if any amount remains unpaid by any
Lender for more than five Business Days after demand, such Lender shall,
commencing on the day next following such fifth Business Day, pay interest to
the Issuing Bank or the Administrative Agent, as the case may be, at a rate
per annum equal to the Federal Funds Rate plus 2%. In any case when an amount
is returned to any Person pursuant to this paragraph (f), the reimbursement
obligation of the Issuer contained in Section 4.02(a) will be reinstated as of
the original date such reimbursement obligation arose.
(g) The Issuer hereby confirms and acknowledges that each Lender
shall have a direct claim against the Issuer for the principal of and interest
on each portion of any unreimbursed Standby L/C Drawing advanced by such
Lender to the Issuing Bank and that each Lender shall to the extent applicable
be entitled to all the rights of the Issuing Bank against the Issuer (to the
39
extent not exercised by the Issuing Bank) as if such Lender had funded its
Participation Percentage of the Standby L/C Drawing directly to the
beneficiary of the applicable Standby L/C.
(h) The Issuing Bank and each Lender, with respect to the
amounts payable to it in respect of any unreimbursed Standby L/C Drawing, and
the Administrative Agent, with respect to all amounts payable in respect of
unreimbursed Standby L/C Drawings, shall maintain on its books in accordance
with its usual practice, loan accounts, setting forth its Participation
Percentage of each Standby L/C Drawing, the applicable interest rate and the
amounts of principal and interest paid and payable by the Issuer from time to
time hereunder with respect thereto; provided, however, that the failure by
the Issuing Bank, any Lender or the Administrative Agent to record any such
amount on its books or any error in such recordation shall not affect the
obligations of the Issuer with respect thereto. In the case of any dispute,
action or proceeding relating to any amount payable in respect of any
unreimbursed Standby L/C Drawings, the entries in each such account shall be
prima facie evidence of such amount. In case of any discrepancy between the
entries in the Administrative Agent's books and a Lender's books, such
Lender's books shall be considered correct in the absence of manifest error.
In the case of any discrepancy between the entries in the Issuing Bank's books
and any Lender's books or the Administrative Agent's books, the Issuing Bank's
books shall be considered correct in the absence of manifest error.
4.05 Limited Liability of the Issuing Bank. As between
the Issuing Bank on the one hand, and the Issuer on the other, the Issuer
assumes all risks of any acts or omissions of the beneficiaries of Standby
L/Cs with respect to their use of the Standby L/Cs or the proceeds thereof.
Neither the Issuing Bank nor any of its employees, officers, directors or
agents shall be liable or responsible for any acts or omissions of the
beneficiaries in connection therewith.
ARTICLE V
TERMINATION AND REDUCTION OF
COMMITMENTS; FEES, TAXES, PAYMENT PROVISIONS
5.01 Termination or Reduction of Commitments.
(a) Subject to Section 5.02, the Commitments shall terminate on
the Stated Termination Date.
(b) Upon at least five Business Days' notice to the
Administrative Agent, the Arrangers, the Issuing Bank and the Depositary (with
a copy thereof to each Dealer and each of Moody's and S&P), but no sooner than
six months after the Effective Date unless a Non-Default Disruption Event has
occurred and is continuing, in which case such termination may occur at any
time upon five Business Days' prior notice, the Issuer may terminate the
Letter of Credit Facility by instructing the Depositary to surrender the
Letter of Credit to the Issuing Bank for cancellation; provided, however, that
in connection with an extension of the term of this Agreement pursuant to
Section 5.02 occurring not earlier than 90 days prior to the then Stated
Termination Date, the Issuer may terminate the existing Commitments upon five
Business Days' prior notice; and provided, further, however, that the Letter
of Credit shall not be surrendered for cancellation so long as any Commercial
Paper Note is Outstanding. Upon at least five Business
40
Days prior notice to the Administrative Agent and the Issuing Bank, the Issuer
may terminate any Standby L/C, in accordance with its terms, by surrendering,
or causing the beneficiary thereof to surrender, such Standby L/C to the
Issuing Bank for cancellation.
(c) Upon at least five Business Days' prior notice to the
Administrative Agent, the Arrangers, the Issuing Bank and the Depositary (with
a copy thereof to each Dealer and each of Moody's and S&P), but no sooner than
six months after the Effective Date, the Issuer may permanently reduce the
Commitments and the Stated Amount of the Letter of Credit by a minimum amount
of U.S.$5,000,000 or any integral multiple of U.S.$1,000,000 in excess thereof
by causing the Issuing Bank to deliver a Notice of Reduction of Stated Amount
and instructing the Depositary either (i) to surrender the Letter of Credit to
the Issuing Bank for cancellation in exchange for a new Letter of Credit
having the reduced Stated Amount and otherwise having the same terms as the
Letter of Credit being cancelled or (ii) to obtain an amendment to the Letter
of Credit to the same effect; provided, however, that the Stated Amount of the
Letter of Credit shall not as a result of any reduction be reduced below the
aggregate Face Amount of all Commercial Paper Notes then Outstanding. Any
reduction of the Stated Amount pursuant to this paragraph (c) shall be
irrevocable. Upon at least five Business Days' prior notice to the
Administrative Agent and the Issuing Bank, the Issuer may reduce the stated
amount of any Standby L/C to be reduced, in accordance with its terms, by
surrendering, or causing the beneficiary thereof to surrender, such Standby
L/C to the Issuing Bank for cancellation in exchange for a new Standby L/C
having the reduced stated amount and otherwise having the same terms as the
Standby L/C being cancelled; provided, however, that the stated amount of any
Standby L/C shall not as a result of such reduction be reduced below
U.S.$3,000,000.
(d) (i) Any reduction in the Stated Amount pursuant to
paragraph (c) above shall cause the Commitments to be reduced by the same
amount.
(ii) Any reduction of the Commitments shall reduce the
Commitment of each Lender pro rata in accordance with the respective
Participation Percentages of the Lenders.
(iii) No reduction of the Stated Amount will be permitted
if, after giving effect thereto, the Commitments would be less than
U.S.$100,000,000.
(e) The Stated Amount shall be automatically reduced or
reinstated, as the case may be, as specified in the Letter of Credit.
(f) The Letter of Credit may be terminated and the Stated Amount
may also be reduced as provided in Section 2.06 and 12.02(a).
(g) No reduction or termination of the Commitments shall in any
event release any Lender from any of its direct or indirect obligations to the
Issuer or the Issuing Bank in respect of (i) any Commercial Paper Notes issued
prior to such termination or reduction or (ii) any Drawing made under the
Letter of Credit or (iii) any Standby L/C Drawing under the Standby L/Cs.
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5.02 Extension of Commitments.
(a) The Commitment of each Lender will expire on the Stated
Termination Date then in effect; provided, however, that the term of this
Agreement may be extended by agreement of the Issuer, the Issuing Bank, and,
subject to paragraph (c) below, all the Lenders, the Administrative Agent and
the Arrangers not earlier than 90 days prior to the Stated Termination Date on
such terms and conditions as such parties may agree in writing.
(b) In connection with the extension of the Stated Termination
Date, the Arrangers may at the request of the Issuer and with the consent of
the Issuing Bank, in the Issuing Bank's sole discretion, invite each Lender to
increase its Commitment by amending and restating this Agreement by executing
a counterpart of such amendment and restatement. Nothing contained in this
Section 5.02 shall obligate any Lender to extend its Commitment or to increase
its Commitment without its consent.
(c) If, in connection with an extension of the term of this
Agreement, this Agreement is amended and restated and any Lender elects not to
extend its Commitment, such Lender agrees that such amendment and restatement
will become effective without the signature of such Lender subject to the
termination of its Commitment on the effective date of such amendment and
restatement, the payment of all amounts owed to such Lender under this
Agreement and the payment by such Lender of all amounts owed by it to the
Issuing Bank hereunder.
5.03 Fees.
(a) Participation Fee. The Issuer agrees to pay to the
Administrative Agent for the account of the Lenders ratably in accordance with
their Participation Percentages a participation fee (the "Participation Fee")
at the rate of 0.60% per annum on the amount of the Commitments as from time
to time in effect less the aggregate amount of (i) any unreimbursed Drawings
not converted into Loans (ii) any unreimbursed Standby L/C Drawing and (iii)
any outstanding Loans. The Participation Fee shall accrue from August 26, 2002
to the Termination Date and shall be payable in arrears on the 26th day in
each of November, February, May and August and on the Termination Date
commencing on November 26, 2002, provided that if any day or the Termination
Date is not a Business Day, then the Participation Fee shall be payable on the
next preceding Business Day.
(b) Letter of Credit Fees. The Issuer will pay to the Issuing
Bank Letter of Credit administration fees (the "Letter of Credit Fees") in the
amounts and at the times agreed to by the Issuing Bank and the Issuer in a
separate fee letter among the Administrative Agent and the Issuer, dated
August 26, 2002 (the "Fee Letter").
(c) Standby L/C Fees. The Issuer will pay to the Issuing Bank
Standby L/C administration fees (the "Standby L/C Fees") in the amounts and at
the times agreed to by the Issuing Bank and the Issuer in the Fee Letter.
(d) Agency Fees. The Issuer will pay to the Administrative
Agent, for the sole account of the Administrative Agent, an agency fee (the
"Agency Fees") in the amount and at the times agreed to by the Administrative
Agent and the Issuer in the Fee Letter.
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(e) Arrangement Fees. The Issuer will pay to the Arrangers, for
the sole account of the Arrangers, the arrangement fees (the "Arrangement
Fees") and other fees in the amounts and at the times agreed to by the
Arrangers and the Issuer in the Fee Letter.
(f) Depositary Fees. The Issuer will pay to the Depositary, for
the sole account of the Depositary, a depositary fee (the "Depositary Fees")
in the amount and at the times agreed to by the Depositary and the Issuer in a
separate fee letter (the "Depositary Fee Letter").
(g) Up-Front Fee. The Issuer will pay to the Administrative
Agent, for the account of the Lenders, an up-front fee (the "Up-front Fee")
payable on the Effective Date in accordance with the Summary of Terms and
Conditions agreed to by the Issuer and the Arrangers on June 25, 2002.
5.04 Computation of Fees. All fees calculated on a per
annum basis shall be computed on the basis of a year of 360 days and paid for
the actual number of days elapsed.
5.05 Taxes.
(a) Any and all payments by the Issuer or the Guarantor, as the
case may be, to any Lender, the Issuing Bank 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 Issuer shall promptly pay all Other Taxes.
(b) The Issuer and the Guarantors agree to indemnify and hold
harmless each Lender, the Issuing Bank and the Administrative Agent for the
full amount of Taxes or Other Taxes (including any Taxes or Other Taxes
imposed by any jurisdiction on amounts payable under this Section 5.05) paid
by or assessed against any Lender, the Issuing Bank 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 unless such penalties, interest or addition to tax are
incurred solely as a result of any gross negligence or willful misconduct of
such Lender, Issuing Bank or Administrative Agent, as the case may be. Payment
under this indemnification shall be made within 30 days after the date any
Lender, the Issuing Bank or the Administrative Agent makes written demand
therefor.
(c) If the Issuer 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, the Issuing Bank 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 5.05), such Lender, the Issuing Bank 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 Issuer shall not be required to increase any
amounts payable to such Lender or Issuing Bank to the extent such
amounts would be in excess of amounts that would have been payable to
such Lender or Issuing Bank had such Lender, Issuing Bank or
Administrative Agent complied with the requirements of paragraph (f)
of this section;
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(ii) the Issuer or the Guarantors, as the case may be, shall
make such deductions and withholdings; and
(iii) the Issuer 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 Issuer
or the Guarantors, as the case may be, of Taxes or Other Taxes, the Issuer 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 satisfactory to the Administrative Agent.
(e) If the Issuer or the Guarantors, as the case may be, is
required to pay additional amounts to any Lender or the Issuing Bank pursuant
to paragraph (c) of this Section 5.05, then such Lender or the Issuing Bank,
as the case may be, shall use reasonable efforts (consistent with legal and
regulatory restrictions) to change the jurisdiction of its Lending Office or
issuing office, as the case may be, so as to eliminate the obligation of the
Issuer or the Guarantor, as the case may be, to pay any such additional
amounts which may thereafter accrue or to indemnify such Lender or the Issuing
Bank in the future, if such change in the reasonable judgment of such Lender
or the Issuing Bank is not otherwise disadvantageous to such Lender or the
Issuing Bank.
(f) The Issuing Bank and each Lender shall, from time to time at
the request of the Issuer or the Administrative Agent, promptly furnish to the
Issuer and the Administrative Agent, 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, otherwise applicable Taxes; provided, however, that neither the Issuing
Bank nor any Lender shall be obliged to disclose information regarding its tax
affairs or computations to the Issuer in connection with this paragraph (f).
Each of the Issuer and the Administrative Agent shall be entitled to rely upon
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
become payable by such Person had such documentation been accurate.
(g) If the Issuing Bank, 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 Issuer or a Guarantor, as the case may be,
pursuant to Section 5.05(b) and such refund or credit is directly and clearly
attributable to this Agreement, it shall notify the Issuer or such Guarantor,
as the case may be, of the amount of such refund or credit and shall return to
the Issuer or such Guarantor, as the case may be, such refund or the benefit
of such credit; provided, however, that (A) the Issuing Bank, 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
Issuer or the Guarantors with any information on or justification for the
arrangement of its tax affairs or otherwise disclose to the Issuer, the
Guarantors or any other Person any information that it considers to be
proprietary or confidential ,and (B) the Issuer or such Guarantor, as the case
may be, upon the request of the Issuing Bank, 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 Issuing Bank, the
44
Administrative Agent or such Lender, as the case may be, if the Issuing Bank,
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 Issuer or such Guarantor, as the
case may be, is paid such amount by the Issuing Bank, the Administrative Agent
or such Lender, as the case may be.
5.06 General Provisions as to Payments.
(a) All payments to be made by the Issuer or the Guarantors, as
the case may be, shall be made without set-off, counterclaim or other defense.
Except as otherwise expressly provided herein and in the Depositary Agreement,
all payments by the Issuer shall be made to the Administrative Agent for the
account of the Lenders or the Issuing Bank, as the case may be, 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) (but
not earlier than 11:30 a.m. (New York City time)) in respect of any Drawing
under the Letter of Credit or any Standby L/C Drawing under a Standby L/C, on
the dates specified herein but in no event prior to the payment by the Issuing
Bank of such Drawing or Standby L/C Drawing, as the case may be, to be
reimbursed. The Administrative Agent will promptly distribute to the Issuing
Bank or to each Lender its Participation 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 Issuer prior to the date on which any payment is due to the Issuing
Bank or the Lenders hereunder that the Issuer will not make such payment in
full, the Administrative Agent may assume that the Issuer 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 the Issuing Bank or each Lender, as the
case may be, on such due date an amount equal to the amount then due the
Issuing Bank or such Lender. If and to the extent that the Issuer shall not
have made such payment, the Issuing Bank or each Lender, as the case may be,
shall repay to the Administrative Agent forthwith on demand such amount
distributed to the Issuing Bank or such Lender together with accrued interest
thereon, for each day from the date such amount is distributed to the Issuing
Bank or such Lender until the date the Issuing Bank or such Lender repays such
amount to the Administrative Agent, at the Federal Funds Rate; provided,
however, that if any amount remains unpaid by the Issuing Bank or any Lender
for more than five Business Days after the Administrative Agent has made a
demand for such amount, the Issuing Bank or such Lender shall,
45
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 the
Issuing Bank or any Lender for more than ten Business Days, the Issuing Bank or
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%.
5.07 Funding Losses. If the Issuer makes any payment of
principal with respect to any Eurodollar Loan on any day other than the last
day of the Interest Period applicable thereto (including a prepayment pursuant
to Section 3.09, 3.10 or 12.02), or if the Issuer fails to borrow any
Eurodollar Loans after notice has been given to any Lender in accordance with
Section 3.02 or to convert or continue a Loan as a Eurodollar Loan after a
Notice of Continuation/Conversion has been delivered by the Issuer pursuant to
Section 3.05, or if the Issuer fails to prepay any Eurodollar Loans after
notice has been given pursuant to Section 3.09, the Issuer 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, provided such Lender shall have delivered to the Issuer 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.
5.08 Basis for Determining Interest Rate Inadequate or
Unfair. If on or prior to the first day of any Interest Period for any
Eurodollar Loan:
(a) the Administrative Agent determines that by reason of
circumstances affecting the London interbank market, 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 such Lenders of funding their Loans for such Interest
Period, the Administrative Agent shall forthwith give notice thereof to the
Issuer and the Lenders. Thereafter, for so long as paragraph (a) or paragraph
(b) above applies, all Loans hereunder shall be made or continued as Base Rate
Loans.
5.09 Illegality. If any Requirement of Law or any change
therein or in the interpretation or application thereof shall make it unlawful
for any Lender to make or maintain Loans as contemplated by this Agreement,
(a) the obligation of such Lender hereunder to make Loans shall forthwith be
cancelled to the extent required by law and (b) all outstanding Loans, if any,
shall (i) if so required by law be repaid or (ii) in the case of Eurodollar
Loans, if so permitted by law, at the option of the Issuer either (A) be
repaid or (B) be converted to Base Rate Loans, in each case, on the last day
of the Interest Period therefor. If any such repayment or conversion of a
Eurodollar Loan is made on a day which is not the last day of the Interest
Period therefor, the Issuer shall pay to such Lender such amounts, if any, as
may be required pursuant to Section 5.07.
5.10 Increased Costs; Capital Adequacy.
(a) If the Issuing Bank or any Lender determines that due to
either (x) the introduction of any Requirement of Law, including any Capital
Adequacy Regulation, or any change in any Requirement of Law or in the
interpretation thereof (including those relating to
46
reserves, special deposits, the basis of taxation, capital adequacy or
Eurocurrency Liabilities or any other form of banking or monetary requirements
or controls) or (y) compliance therewith by the Issuing Bank or any Lender:
(i) the cost to the Issuing Bank or such Lender of
maintaining its Commitment or maintaining the Letter of Credit or
maintaining the Standby L/Cs or making or maintaining its Loans or
its participation in the Letter of Credit Facility or Standby L/C
Facility is increased;
(ii) the Issuing Bank or such Lender incurs a cost or
suffers a reduction in yield (including the cost of, or reduction in
yield arising from, complying with such taxation, reserve, special
deposit, cash ratio, liquidity, capital adequacy, Eurocurrency
Liabilities or other requirement or control as aforesaid) as a result
of its having agreed to issue the Letter of Credit, to participate in
the Letter of Credit Facility, to issue the Standby L/Cs or to
participate in the Standby L/C Facility or to give effect to its
obligations contemplated hereunder; or
(iii) the Issuing Bank or such Lender makes any additional
payment or suffers a reduction in yield or forgoes any interest or
other return on or calculated by reference to any amount received or
receivable by it hereunder or calculated by reference to the amount
of its Loans, its issuance of the Letter of Credit or its
participation in the Letter of Credit Facility, its issuance of
Standby L/Cs, or participation in the Standby L/C Facility or its
Commitment;
then and in each such case:
(A) the Issuing Bank or such Lender (an "Affected Lender")
shall notify the Issuer through the Administrative Agent in writing
of such event promptly upon its becoming aware of the event entitling
it to make a claim; provided, however, that the failure to give such
notice shall not affect the rights of any Affected Lender under this
Section 5.10(a); and
(B) upon demand from time to time by such Affected Lender
through the Administrative Agent, the Issuer shall pay to the
Administrative Agent for the account of such Affected Lender such
amount as shall compensate such Affected Lender for such increased
cost, reduction in yield, or shortfall in return, additional payment
or forgone interest or other return. The certificate of such Affected
Lender specifying the amount of such compensation shall be conclusive
except in the case of manifest error.
(b) The Issuing Bank and each Lender agree that, upon the
occurrence of any event giving rise to the operation of paragraph (a) above as
to it, it will, if so requested by the Issuer, use its commercially reasonable
efforts to avoid or minimize the consequences of such event; provided,
however, that such action shall not, in the judgment of the Issuing Bank or
such Lender, as the case may be, be illegal or economically or otherwise
disadvantageous to it.
(c) It is understood that paragraph (a) above does not apply to
the introduction of or any increase in the income or franchise taxes of the
Issuing Bank or any Lender levied by any jurisdiction (or political
subdivision or taxing authority thereof) under the laws of which the
47
Issuing Bank or any Lender is organized or in which a Lending Office or the
principal place of business of the Issuing Bank or such Lender is located.
5.11 Substitute Lenders. If any Lender has demanded
compensation pursuant to Section 5.05(c) or to Section 5.10(a), and such
Lender does not waive its right to future additional compensation pursuant to
Section 5.05(c) or Section 5.10(a), the Issuer shall have the right (a) 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 Issuer of the related
processing fee of U.S.$3,500 to the Administrative Agent and a fee of
U.S.$1,500 payable directly to the Issuing Bank; or (b) to remove such Lender,
reduce the Commitments by the amount of the Commitment of such Lender, adjust
the Participation Percentage of each Lender in the manner set forth in Section
2.06 and, by requesting the Issuing Bank to submit a Notice of Reduction of
Stated Amount to cause the Stated Amount of the Letter of Credit to be reduced
by an amount equal to the Commitment of such Lender; 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 5.05(c) and Section 5.10(a))
unless any such amount is being contested by the Issuer in good faith and;
provided, further, however, that no such reduction shall be permitted if after
giving effect thereto, the sum of the aggregate Face Amount of Commercial
Paper Notes Outstanding, any unreimbursed Drawings, the Standby L/C Exposure
and any Loans then outstanding would exceed the Commitments as so reduced or
the Commitments as so reduced would aggregate less than U.S.$100,000,000.
5.12 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 Participation 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 Participation
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 5.12 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
48
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 Issuer agrees that any Lender so purchasing a
participation from another Lender pursuant to this Section 5.12 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 Issuer in the amount of such
participation.
ARTICLE VI
CONDITIONS PRECEDENT
6.01 Conditions to Effectiveness. The obligation of the
Issuing Bank to issue the Letter of Credit is 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) Notes. All the Notes shall have been duly executed and
delivered by the Issuer to the Administrative Agent.
(c) Depositary Agreement and Dealer Agreements. The
Administrative Agent shall have received (i) counterparts of the Depositary
Agreement duly executed by each party thereto together with evidence from the
Depositary that the Commercial Paper Account and the Letter of Credit Account
have been established at the office of the Depositary and copies of all
documents to be delivered pursuant to the Depositary Agreement, (ii) copies of
each Dealer Agreement duly executed by the parties thereto and (iii) evidence
reasonably satisfactory to it that each Dealer has approved the Offering
Statement to be used in connection with the issuance and sale of the
Commercial Paper Notes.
(d) Opinions of Issuer's and each Guarantor's Counsel. The
Administrative Agent shall have received (i) the opinion of Skadden, Arps,
Slate, Meagher & Flom LLP, New York counsel to the Issuer and the Guarantors,
in substantially the form of Exhibit G, (ii) the opinion of Lic. Ramiro G.
Villareal Morales, Mexican counsel to the Issuer, in substantially the form of
Exhibit H and (iii) a favorable opinion of Skadden, Arps, Slate, Meagher &
Flom LLP, New York counsel to the Issuer and the Guarantors, as to certain
securities laws issues as the Dealers may request and bankruptcy law issues as
the Rating Agencies may request.
(e) Opinion of Counsel to the Administrative Agent. The
Administrative Agent shall have received a favorable opinion of Basham, Ringe
y Correa, special Mexican counsel to the Administrative Agent.
(f) Opinion of Counsel to the Issuing Bank. The Administrative
Agent shall have received (i) the opinion of Lovells, English counsel to the
Issuing Bank, and (ii) the opinion of
49
Hughes Hubbard & Reed LLP, New York counsel to the Issuing Bank, each as to the
enforceability of the Letter of Credit.
(g) Opinions of Counsel to the Depositary. The Administrative
Agent shall have received the opinion of Emmet, Marvin & Martin, LLP, counsel
to the Depositary, as to the due authorization and delivery of the Depositary
Agreement and the validity and enforceability of the Depositary Agreement
against the Depositary.
(h) Governmental Approvals. The Administrative Agent shall have
received certified copies of all necessary approvals, authorizations, or
consents of, or notices to, or registrations with, any Governmental Authority
required for the Issuer and each Guarantor to enter into, or perform its
obligations under, the Transaction Documents, including the approval of the
Mexican National Banking and Securities Commission (Comision Nacional Bancaria
y de Valores) for the registration of the Commercial Paper Notes with the
Special Section of the National Registry of Securities and Intermediaries
(Registro Nacional de Valores e Intermediarios).
(i) Organizational Documents of the Issuer and the Guarantors.
The Administrative Agent shall have received certified copies of (i) the acta
constitutiva and estatutos sociales in effect on the Effective Date of the
Issuer and each Guarantor, (ii) the powers-of-attorney of each Person
executing any Transaction Document on behalf of the Issuer 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).
(j) Agent for Service of Process. The Administrative Agent shall
have received a power of attorney, notarized under Mexican law, granted by the
Issuer 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 16.12.
(k) Ratings. The Administrative Agent shall have received copies
of letters, addressed to the Issuer and delivered by the Issuer to each
Dealer, from Moody's and S&P confirming that upon the issuance of the Letter
of Credit the Commercial Paper Notes will be rated at least P-1 by Moody's and
A-1 by S&P or similarly rated by another nationally recognized rating agency
mutually acceptable to the Issuer and the Arrangers.
(l) Fees and Expenses. The Issuer shall have paid (i) to the
Administrative Agent, the Agency Fees and the Up-Front Fee due on the
Effective Date, (ii) to the Arrangers the fees specified in the Fee Letter due
on the Effective Date, (iii) to the Issuing Bank the Letter of Credit Fees due
on the Effective Date, (iv) to the Depositary, the fees specified in the
Depositary Fee Letter due on the Effective Date, and (v) all other reasonable
fees and amounts payable by the Issuer hereunder pursuant to Section 16.04 on
or prior to the Effective Date and as otherwise agreed.
50
(m) No Default. No Default or Event of Default shall have
occurred and be continuing as of the Effective Date and the Issuer and each
Guarantor shall have provided a certificate from a Responsible Officer of the
Issuer to such effect to the Administrative Agent.
(n) Representations and Warranties. The representations and
warranties of the Issuer 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 Issuer and each Guarantor shall have provided a certificate to such
effect to the Administrative Agent.
(o) No Material Adverse Effect. No Material Adverse Effect shall
have occurred since December 31, 2001 and there shall have occurred no
circumstance and/or event of a financial, political or economic nature in
Mexico which has a reasonable likelihood of having a material adverse effect
on the ability of the Issuer or the Guarantors to perform their obligations
under this Agreement and the other Transaction Documents.
(p) 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 the Issuing Bank or any Lender through the
Administrative Agent.
6.02 Conditions Precedent to the Issuance of Commercial
Paper Notes. Each issuance of Commercial Paper Notes is subject to the
satisfaction of the following conditions precedent on the date of issuance:
(a) other than in connection with the first issuance of
Commercial Paper Notes on the Effective Date, the Issuer shall have deposited
or caused to be deposited in the Commercial Paper Account an amount equal to
the Issuer Deposit Amount for such date;
(b) immediately after giving effect to such issuance, the
aggregate Face Amount of all Commercial Paper Notes issued and Outstanding
shall not be greater than the Stated Amount of the Letter of Credit;
(c) immediately after giving effect to such issuance, the
aggregate Face Amount of all Commercial Paper Notes Outstanding shall not
exceed an amount equal to (i) the amount of the Commitments at such time less
(ii) the sum of (A) the aggregate principal amount of all outstanding Loans,
(B) the aggregate amount of all unreimbursed Drawings not converted into Loans
and (C) the Standby L/C Exposure;
(d) immediately before and after such issuance, no Default or
Event of Default shall have occurred and be continuing;
(e) (i) no Notice of Termination or Notice of Default shall have
been delivered by the Issuing Bank, (ii) no Notice of Acceleration shall have
been delivered by the Administrative Agent and (iii) no instruction to cease
issuing Commercial Paper Notes shall have been delivered to the Depositary by
the Administrative Agent, the Issuer or the Issuing Bank pursuant to Section
2.07 or 12.02(e) or as provided in the Depositary Agreement;
51
(f) no writ, order, judgment, warrant of attachment, execution
or similar process or stay or legal restraint shall have been imposed on the
Commercial Paper Account or the Letter of Credit Account or on the proceeds of
the Commercial Paper Notes;
(g) the Commercial Paper Notes shall be rated at least P-2 by
Moody's and A-2 by S & P;
(h) no Non-Default Disruption Event shall have occurred and be
continuing; and
(i) each of the representations and warranties made by the
Issuer in or pursuant to the Transaction Documents shall be true and correct
in all material respects on and as of such date as if made on and as of such
date.
6.03 Conditions Precedent to Borrowings, Continuation or
Conversion of the Loans and Issuances of Standby L/Cs. The obligation of any
Lender to make a Loan on the occasion of any Borrowing or to continue or
convert any Loan or for the Issuing Bank to issue a Standby L/C is subject to
the satisfaction of the following conditions:
(a) in the case of Borrowings, continuance or conversion of
Loans, the Administrative Agent shall have received a Notice of Borrowing or a
Notice of Continuation/Conversion as required by Section 3.02 or 3.05
respectively and, in the case of issuances of Standby L/Cs, the Issuing Bank
shall have received the notice and all other documents, instruments and
agreements referred to in Section 4.01(b);
(b) in the case of Borrowings continuance or conversion of
Loans, (i) the Issuer shall have certified to the Administrative Agent no
later than 11:00 a.m. (New York City time) on the date of such Borrowing or
continuation or conversion of any Loan that a CP Disruption Event has occurred
and is continuing or that the CP Disruption Event which existed on the
Non-Default Disruption Date is continuing to exist or (ii) the Issuing Bank
shall have confirmed to the Administrative Agent that a Downgrading Event or
an Illegality Event, as the case may be, has occurred and is continuing or
that the Downgrading Event or the Illegality Event, as the case may be, which
existed on the Non-Default Disruption Date is continuing to exist;
(c) immediately after such Borrowing (after giving effect to the
payment of any unreimbursed Drawing with the proceeds of such Borrowing), the
continuation or conversion of any Loan or the issuance of the Standby L/C, as
the case may be, the Total Outstandings of any Lender shall not exceed the
Commitment of such Lender;
(d) in the case of Borrowings of Loans pursuant to Section
3.01(a), the amount of such Borrowing shall not exceed the amount of the
payment under the Letter of Credit in respect of a Drawing being reimbursed
with the proceeds of such Borrowing;
(e) in the case of issuances of Standby L/Cs, the stated amount
of the Standby L/C subject of such issuance shall not exceed the Available
Standby Sublimit.
(f) immediately before and after such Borrowing or the
continuation or conversion of any Borrowing or the issuance of such Standby
L/C, no Default or Event of Default shall have
52
occurred and be continuing and such Borrowing or continuation or conversion of
any Loan or issuance of a Standby L/C thereof will not cause or result in a
Default or Event of Default; and
(g) the representations and warranties of the Issuer 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, continuation or conversion of any Loan
or issuance of a Standby L/C thereof.
(h) in the case of issuances of Standby L/Cs the Issuer shall
have paid to the Issuing Bank all of the Standby L/C Fees due and payable on
or before the issuance of such Standby L/C.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES OF THE ISSUER
The Issuer represents and warrants that:
7.01 Corporate Existence and Power.
(a) The Issuer is a corporation (sociedad anonima de capital
variable) duly incorporated, validly existing and in good standing under the
laws of Mexico and has all requisite corporate power and authority (including
all governmental licenses, permits and other approvals except for such
licenses, permits and approvals the absence of which will not have a Material
Adverse Effect) to own its assets and carry on its business as now conducted
and as proposed to be conducted.
(b) All of the outstanding stock of the Issuer has been validly
issued and is fully paid and non-assessable.
7.02 Power and Authority; Enforceable Obligations.
(a) The execution, delivery and performance by the Issuer 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 Issuer's corporate powers and have been duly authorized by all necessary
corporate action pursuant to the estatutos sociales of the Issuer.
(b) This Agreement and the other Transaction Documents to which
the Issuer is a party have been duly executed and delivered by the Issuer and
constitute, and each Commercial Paper Note, when executed by the Issuer,
countersigned by the Depositary as provided in the Depositary Agreement, and
delivered, will constitute, legal, valid and binding obligations of the Issuer
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.
7.03 Compliance with Law and Other Instruments. The
execution, delivery and performance of this Agreement and any of the other
Transaction Documents to which the Issuer is a party and the consummation of
the transactions herein or therein contemplated, and
53
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 Issuer pursuant to, any Contractual Obligation of the Issuer or
(b) result in any violation of the estatutos sociales of the Issuer or any
provision of any Requirement of Law applicable to the Issuer.
7.04 Governmental Approvals. No order, permission,
consent, approval, license, authorization, registration or validation of, or
notice to or filing with, or exemption by, any Governmental Authority is
required to authorize, or is required in connection with, the execution,
delivery and performance by the Issuer of this Agreement and the other
Transaction Documents to which the Issuer is a party or the taking of any
action contemplated hereby or by any other Transaction Document except for the
registration of the Commercial Paper Notes with the Special Section of the
Registro Nacional de Valores e Intermediarios of the Comision Nacional
Bancaria y de Valores, in respect of which an authorization has been obtained
and is in full force and effect.
7.05 Financial Information.
(a) The consolidated balance sheet of the Issuer and its
Subsidiaries as at December 31, 2001, and the related consolidated statements
of income and cash flows of the Issuer and its Subsidiaries for the fiscal
year then ended, accompanied by an opinion of KPMG Cardenas Dosal, S.C.,
independent public accountants, and the consolidated balance sheet of the
Issuer and its Subsidiaries as at June 30, 2002, and the related consolidated
statements of income and cash flows of the Issuer and its Subsidiaries for the
six months then ended, duly certified by the chief financial officer of the
Issuer, copies of which have been furnished to each Lender, fairly present,
subject, in the case of said balance sheet as at June 30, 2002, and said
statements of income and cash flows for the six months then ended, to year-end
audit adjustments, the consolidated financial condition of the Issuer and its
Subsidiaries as at such dates and the consolidated results of the operations
of the Issuer and its Subsidiaries for the periods ended on such dates, all in
accordance with Mexican GAAP, consistently applied.
(b) Since December 31, 2001 there has been no development or
event which has had or is reasonably likely to have a Material Adverse Effect.
7.06 Litigation. Except as set forth in Schedule 7.06,
there is no pending or threatened action, suit, investigation, litigation or
proceeding, including any Environmental Action, affecting the Issuer or any of
its Subsidiaries before any court, Governmental Authority or arbitrator that
(a) would be reasonably likely to have a Material Adverse Effect or (b)
purports to affect the legality, validity or enforceability of any Transaction
Document or the consummation of the transactions contemplated thereby, and
there has been no adverse change in the status, or financial effect on the
Issuer or any of its Subsidiaries, of the litigation described in Schedule
7.06.
7.07 No Immunity. The Issuer 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 Issuer constitute private and commercial acts rather than public or
54
governmental acts. Under the laws of Mexico neither the Issuer 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).
7.08 Investment Company Act. The Issuer is not, and is
not controlled by, an "investment company" within the meaning of the United
States Investment Company Act of 1940, as amended.
7.09 Direct Obligations; Pari Passu; Liens.
(a) (i) This Agreement constitutes a direct, unconditional
unsubordinated and unsecured obligation of the Issuer, and (ii) the Notes and
the Commercial Paper Notes, when issued and delivered, will constitute direct,
unconditional unsubordinated and unsecured obligations of the Issuer.
(b) The obligations of the Issuer under this Agreement and the
Notes rank and will rank in priority of payment at least pari passu with all
other senior unsecured Debt of the Issuer.
(c) There are no Liens on the property of the Issuer or any of
its Subsidiaries other than Permitted Liens.
7.10 Subsidiaries. All Material Subsidiaries of the
Issuer are listed on Schedule 7.10.
7.11 Ownership of Property. Except as, in the aggregate,
could not reasonably be expected to have a Material Adverse Effect, each of
the Issuer and its Subsidiaries has title in fee simple to, or a valid
leasehold interest in, all its real property, and good title to, or a valid
leasehold interest in, all its other property, and none of such property is
subject to any Lien except Permitted Liens.
7.12 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 Issuer under the law
of Mexico. Except for the registration referred to in Section 7.04, 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; 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, the Issuing Bank 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
55
Agent, the Issuing Bank or any Lender, that the Administrative Agent, the
Issuing Bank or such Lender be licensed or qualified with any Mexican
Governmental Authority or be entitled to carry on business in Mexico.
7.13 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 assessment received by the Issuer, 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 Issuer, 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 Issuer pursuant
to this Agreement or any of the other Transaction Documents. The Issuer is
permitted to pay any additional amounts payable pursuant to Section 5.05.
7.14 Compliance with Laws. The Issuer 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.
7.15 Absence of Default. No Default or Event of Default
has occurred and is continuing.
7.16 Full Disclosure. All information heretofore
furnished by the Issuer to the Administrative Agent, the Arrangers, the
Issuing Bank or any Lender for purposes of or in connection with this
Agreement or any transaction contemplated hereby is, and all such information
hereafter furnished by the Issuer to the Administrative Agent, the Arrangers,
the Issuing Bank or any Lender will be, true and accurate in all material
respects on the date as of which such information is stated or certified. The
Issuer has disclosed to the Lenders in writing any and all facts which may
have a Material Adverse Effect.
7.17 Choice of Law; Submission to Jurisdiction and
Waiver of Sovereign Immunity. In any action or proceeding involving the Issuer
arising out of or relating to this Agreement in any Mexican court or tribunal,
a Lender, the Issuing Bank, the Arrangers 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 16.10, 16.11 and 16.13.
56
ARTICLE VIII
REPRESENTATIONS AND WARRANTIES OF THE GUARANTORS
Each of the Guarantors separately represents and warrants
that:
8.01 Corporate Existence and Power.
(a) Such Guarantor is a corporation (sociedad anonima de capital
variable) duly incorporated, validly existing and in good standing under the
laws of Mexico and has all requisite corporate power and authority (including
all governmental licenses, permits and other approvals except for such
licenses, permits and approvals the absence of which will not have a Material
Adverse Effect) to own its assets and carry on its business as now conducted
and as proposed to be conducted.
(b) All of the outstanding stock of such Guarantor has been
validly issued and is fully paid and non-accessible.
8.02 Power and Authority; Enforceable Obligations.
(a) The execution, delivery and performance by such Guarantor of
each Transaction Document to which it is or will be a party, and the
consummation of the transactions contemplated hereby and thereby, are within
such Guarantor's corporate powers and have been duly authorized by all
necessary corporate action pursuant to the estatutos sociales of such
Guarantor.
(b) This Agreement and the other Transaction Documents to which
such Guarantor is a party have been duly executed and delivered by such
Guarantor and constitute legal, valid and binding obligations of such
Guarantor enforceable in accordance with their respective terms, except as
enforceability may be limited by applicable concurso mercantil, bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors'
rights generally or general equity principals.
8.03 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.
8.04 Governmental Approvals. No order, permission,
consent, approval, license, authorization, registration or validation of, or
notice to or filing with, or exemption by, any Governmental Authority 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 except for the
registration of the Commercial Paper Notes with the Special Section of the
Registro Nacional de Valores e
57
Intermediarios of the Comision Nacional Bancaria y de Valores, in respect of
which an authorization has been obtained and is in full force and effect.
8.05 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).
8.06 Direct Obligations; Pari Passu; Liens.
(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.
8.07 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. Except for the registration referred
to in Section 8.04, 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;
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.
8.08 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, a Lender, the Issuing Bank, the Arrangers 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 16.10, 16.11 and 16.13.
ARTICLE IX
AFFIRMATIVE COVENANTS
The Issuer covenants and agrees that for so long as any
Obligation under this Agreement or any other Transaction Document remains
unpaid, the Letter of Credit remains outstanding, any Standby L/Cs remain
outstanding or any Lender has any Commitment hereunder:
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9.01 Financial Reports and Other Information. The Issuer
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 Issuer, a copy of the annual audit report
for such year for the Issuer and its Subsidiaries containing consolidated and
consolidating balance sheets of the Issuer and its Subsidiaries, as of the end
of such fiscal year and consolidated statements of income and cash flows of
the Issuer and its Subsidiaries, for such fiscal year, in each case
accompanied by an opinion acceptable to the Required Lenders by KPMG Cardenas
Dosal, S.C. or other independent public accountants of recognized standing
acceptable to the Required Lenders, together with (i) a certificate of such
accounting firm to the Lenders stating that in the course of the regular audit
of the business of the Issuer 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 Issuer, 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 Issuer 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 Issuer
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 7.05 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 Issuer,
consolidated balance sheets of the Issuer and its Subsidiaries, as of the end
of such quarter and consolidated statements of income and cash flows of the
Issuer 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
Issuer as having been prepared in accordance with Mexican GAAP and together
with a certificate of a Responsible Officer of the Issuer, 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 Issuer 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 Issuer 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 7.05 and
provided further that all such documents will be prepared in English.
9.02 Notice of Default and Litigation. The Issuer will
furnish to the Administrative Agent (and the Administrative Agent will notify
the Issuing Bank, each Lender, the Depositary and each Dealer):
(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
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chief financial officer of the Issuer setting forth details of such Default or
Event of Default and the action that the Issuer has taken and proposes to take
with respect thereto; and
(b) promptly after the commencement thereof, notice of all
actions and proceedings before any court, Governmental Authority or arbitrator
affecting the Issuer or any of its Subsidiaries of the type described in
Section 7.06.
9.03 Compliance with Laws and Contractual Obligations,
Etc. The Issuer 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.
9.04 Payment of Obligations. The Issuer 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 Issuer 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.
9.05 Maintenance of Insurance. The Issuer 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 Issuer or such Subsidiary operates.
9.06 Conduct of Business and Preservation of Corporate
Existence. The Issuer will continue to engage in business of the same general
type as now conducted by the Issuer 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 Issuer nor any of its Subsidiaries shall be required to
maintain its corporate existence in connection with a merger or consolidation
in compliance with Section 10.07; and provided, further that neither the
Issuer nor any of its Subsidiaries shall be required to preserve any right or
franchise if the Issuer or any such Subsidiary shall in its good faith
judgment, determine that the preservation thereof is no longer in the best
interests of the Issuer or such Subsidiary, as the case may be, and that the
loss thereof could not reasonably be expected to have a Material Adverse
Effect.
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9.07 Books and Records. The Issuer 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 Issuer and each such Subsidiary in accordance with
Mexican GAAP, consistently applied.
9.08 Maintenance of Properties, Etc. The Issuer 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 Issuer or its Subsidiaries, provided
neither paragraph (a) nor this paragraph (b) shall prevent the Issuer 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.
9.09 Use of Proceeds.
(a) the Issuer will use the proceeds of the Commercial Paper
Notes and the proceeds of Loans made under Section 3.01(f) for general
corporate purposes, including but not limited to the repayment of short term
debt.
(b) The Issuer will use the proceeds of the Loans made under
Section 3.01(a) to reimburse the Issuing Bank as provided in Section 3.01(c).
9.10 Pari Passu Ranking. The Issuer will ensure that at
all times the Obligations of the Issuer under the Transaction Documents and
the Obligations of the Guarantors under this Agreement 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.
9.11 Transactions with Affiliates. The Issuer 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 Issuer or such
Subsidiary than it would obtain in a comparable arm's-length transaction with
a Person not an Affiliate.
9.12 Maintenance of Governmental Approvals. The Issuer
will maintain in full force and effect at all times all approvals of and
filings with any Governmental Authority 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 Issuer 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.
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ARTICLE X
NEGATIVE COVENANTS
The Issuer covenants and agrees that for so long as any
Obligation under this Agreement or any other Transaction Document remains
unpaid, the Letter of Credit remains outstanding, any Standby L/C remain
outstanding or any Lender has any Commitment hereunder:
10.01 The Commercial Paper Notes. The Issuer shall not
permit (a) any Commercial Paper Note to have a stated date of maturity more
than 360 days after its date of issuance, (b) any Commercial Paper Notes to
mature after the Stated Termination Date or (c) Commercial Paper Notes having
an aggregate Face Amount in excess of an amount equal to the product of (i)
50% and (ii) the Stated Amount to mature on any one Business Day (the
"Settlement Limits"); provided, however, that in connection with an extension
of the Stated Termination Date, the aggregate Face Amount of all Commercial
Paper Notes Outstanding may mature on one Business Day on or prior to such
Stated Termination Date and provided, further, notwithstanding any provision
contained herein to the contrary, these Settlement Limits are for the benefit
of the Issuing Bank, which may in its sole discretion waive these requirements
without the prior written consent of any party to any Transaction Document.
10.02 Securities Act. The Issuer shall not take or permit
to be taken, to the extent within the control of the Issuer, any action that
would result in the issuance and sale of the Commercial Paper Notes being
subject to the registration requirements of the United States Securities Act
of 1933, as amended.
10.03 Offering Statements. The Issuer shall not issue
Commercial Paper Notes except pursuant to an Offering Statement and shall not
include in any Offering Statement in connection with the issuance, sale and
distribution of the Commercial Paper Notes any information with respect to the
Issuing Bank, the Letter of Credit, the Standby L/Cs, the Administrative Agent
or any Lender unless the same shall have been previously approved in writing,
in the case of the Issuing Bank, the Letter of Credit and the Standby L/Cs, by
the Issuing Bank or, in the case of the Administrative Agent or a Lender, by
the Administrative Agent or such Lender, as the case may be, prior to the
inclusion in such Offering Statement.
10.04 Depositary; Dealers; Depositary Agreement.
(a) The Issuer shall not replace, or agree to any replacement
of, the Depositary without the prior consents of the Issuing Bank and the
Administrative Agent, which consents shall not be unreasonably withheld or
delayed.
(b) The Issuer shall not appoint or replace any Dealer without
the approvals of the Issuing Bank and the Arrangers, which approvals shall not
be unreasonably withheld or delayed.
(c) The Issuer shall not agree to any amendment to the
Depositary Agreement or waive any of its rights thereunder without the consent
of the Administrative Agent, which consent shall not be unreasonably withheld
or delayed.
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10.05 Financial Conditions.
(a) The Issuer shall not permit the Consolidated Leverage Ratio
at any time to exceed 3.5 to 1.
(b) The Issuer shall not permit the Consolidated Fixed Charge
Coverage Ratio for any period of four consecutive fiscal quarters to be less
than 2.5 to 1.
(c) Concurrently with the delivery by the Issuer of any
financial statements pursuant to Section 9.01 the Issuer shall deliver to
Administrative Agent (with a copy to each Lender) a certificate from a
Responsible Officer containing all information and calculations necessary for
determining compliance by the Issuer with Sections 10.5(a) and (b) above.
10.06 Liens. The Issuer 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
Issuer 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 10.06 hereto;
(f) any Lien on property acquired by the Issuer 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 Issuer 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
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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 Issuer
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 Issuer; 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 Issuer's or any
Subsidiary's interest in such trust, corporation or entity are applied as
provided under Section 10.08; and provided, further that such Liens may not
secure Debt of the Issuer or any Subsidiary (unless permitted under another
clause of this Section 10.06);
(i) any Liens on securities securing repurchase obligations in
respect of such securities;
(j) any Liens in respect of any Receivables Program Assets which
are or may be sold or transferred pursuant to a Qualified Receivables
Transaction; and
(k) in addition to the Liens permitted by the foregoing clauses
(a) through (j), Liens securing Debt of the Issuer and its Subsidiaries (taken
as a whole) not in excess of 5% of the Adjusted Consolidated Net Tangible
Assets of the Issuer and its Subsidiaries;
unless, in each case, the Issuer 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.
10.07 Consolidations and Mergers. The Issuer shall not,
and shall not permit any Material Subsidiary to, 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 Issuer or such Material Subsidiary, or the Person that acquires by
transfer, conveyance, sale, lease or other disposition all or substantially
all of the properties and assets of the Issuer or such Material Subsidiary
(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 Issuer shall be Mexico, the United States, Canada,
France, Belgium, Germany, Italy, Luxembourg, the Netherlands, Portugal, Spain,
Switzerland or the United Kingdom, or any
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political subdivision thereof, (ii) in the case of a Successor to the Issuer,
shall expressly assume, pursuant to a written agreement in form and substance
satisfactory to the Required Lenders, the Obligations of the Issuer pursuant to
this Agreement and the performance of every covenant on part of the Issuer to be
performed and observed and (iii) in the case of a Successor to any Guarantor,
shall expressly assume, pursuant to a written agreement in form and substance
satisfactory to the Required Lenders, the performance of every covenant of this
Agreement on part of such Guarantor to be performed and observed;
(b) in the case of any such transaction involving the Issuer or
any Guarantor, the Issuer or such Guarantor, or the Successor of any thereof,
as the case may be, shall expressly agree to indemnify each Lender, the
Administrative Agent and the Issuing Bank against any tax, levy, assessment or
governmental charge payable by withholding or deduction thereafter imposed on
such Lender, the Administrative Agent and/or the Issuing Bank 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 Issuer for the Issuer or the substitution of any Successor to a Subsidiary
for such Subsidiary and treating any Debt or Lien incurred by the Issuer or
any Successor to the Issuer, or by a Subsidiary of the Issuer or any Successor
to such Subsidiary, as a result of such transactions as having been incurred
at the time of such transaction, no Event of Default or an event or condition
which, after the giving of notice or lapse of time, or both, would have become
an Event of Default shall have occurred and be continuing; and
(d) the Issuer shall have delivered to the Administrative Agent
an officer's certificate and an opinion of counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a written
agreement is required in connection with such transaction, such written
agreement comply with the relevant provisions of this Article X and that all
conditions precedent provided for in this Agreement relating to such
transaction have been complied with.
10.08 Sales of Assets, Etc. The Issuer will not, and will
not permit any of its Material Subsidiaries to, sell, lease or otherwise
dispose of its assets (including the capital stock of any Subsidiary), other
than (a) inventory, trade receivables and assets surplus to the needs of the
business of the Issuer or any Subsidiary sold in the ordinary course of
business and (b) assets not used, usable or held for use in connection with
cement operations and related operations, unless the proceeds of the sale of
such assets are retained by the Issuer or such Subsidiary, as the case may be,
and, as promptly as practicable after such sale (but in any event within 180
days of such sale), the proceeds are applied to (i) expenditures for property,
plant and equipment usable in the cement industry or related industries; (ii)
the repayment of senior Debt of the Issuer or any of its Subsidiaries, whether
secured or unsecured; or (iii) investments in companies engaged in the cement
industry or related industries.
10.09 Change in Nature of Business. The Issuer 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.
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10.10 Margin Regulations. The Issuer shall not use any
part of the proceeds of the Commercial Paper Notes or the Loans for any
purpose which would result in any violation (whether by the Issuer, the
Administrative Agent, the Issuing Bank or the Lenders) of Regulation T, U or X
of the Federal Reserve Board or to extend credit to others for any such
purpose. The Issuer shall not engage in, or maintain as one of its important
activities, the business of extending credit for the purpose of purchasing or
carrying any margin stock (as defined in such regulations).
ARTICLE XI
OBLIGATIONS OF GUARANTORS
11.01 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 Issuer to the Issuing Bank, each Lender, the
Administrative Agent and, the Arrangers under this Agreement and the other
Transaction Documents and any Fee Letter, as and when such amounts become
payable (whether at stated maturity, by acceleration or otherwise).
11.02 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 Issuer have been validly, finally and
irrevocably paid in full, and shall not be affected in any way by the absence
of any action to obtain such amounts from the Issuer 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.
11.03 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 Issuer, the
Administrative Agent, the Issuing Bank, 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 Issuer or either of the
Guarantors for any reason (including for the reason that the obtaining of the
Letter of Credit or the Standby L/Cs may be in excess of the powers of the
Issuer or of its officers, directors or other agents, acting or purporting to
act on its behalf, or be in any way irregular or defective);
(c) any provision of applicable law or regulation purporting to
prohibit the payment by the Issuer of any amount payable by the Issuer under
this Agreement or any of the other
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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 Issuer; or
(e) any other act or omission to act or delay of any kind by the
Issuer, the Administrative Agent, the Issuing Bank, 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.
11.04 Independent Obligation. The obligations of each of
the Guarantors hereunder are independent of the Issuer's obligations under the
Transaction Documents and of any guaranty or security that may be obtained for
the Obligations. The Administrative Agent, the Issuing Bank 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,
the Issuing Bank or the Lenders shall not be obligated to exhaust recourse or
take any other action against the Issuer or under any agreement to purchase or
security which the Administrative Agent, the Issuing Bank 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, the Issuing Bank
or the Lenders in favor of the Issuer or each of the Guarantors. Without
limiting the generality of the foregoing, the Administrative Agent, the
Issuing Bank 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
Issuer and/or the other Guarantor.
11.05 Waiver of Notices. Each of the Guarantors hereby
waives notice of acceptance of this Article XI 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, the Issuing Bank or the Lenders
against, and any other notice, to the Guarantors.
11.06 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 XI, including failure of consideration, breach
of warranty, statute of frauds, merger or consolidation of the Issuer, 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, the Issuing Bank 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 XI shall apply to the
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Obligations as so changed, extended, renewed or altered; (b) exercise or refrain
from exercising any right against the Issuer 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 Issuer to creditors of the Issuer
other than the Administrative Agent, the Issuing Bank 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 Issuer under the Transaction Documents or any instruments or
agreements referred to herein or therein, to the Issuing Bank, the
Administrative Agent and the Lenders regardless of which of such liability or
liabilities of the Issuer 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 XI, or allow the release, impairment, surrender,
exchange, substitution, compromise, settlement, rescission or subordination
thereof.
11.07 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 Issuing Bank), commence
or join with any other Person in commencing any bankruptcy, liquidation,
reorganization, concurso mercantil or insolvency proceedings of, or against,
the Issuer.
(b) If acceleration of the time for payment of any amount
payable by the Issuer under this Agreement or the Notes is stayed upon the
insolvency, bankruptcy, reorganization, concurso mercantil or any similar
event of the Issuer 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
XI 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 Issuer or similar proceedings or actions or
by any defense which the Issuer 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 Issuer 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
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above in paragraph (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, the Issuing Bank and the Lenders that the Obligations
which are to be purchased by the Guarantors pursuant to this Article XI shall be
determined without regard to any rule of law or order which may relieve the
Issuer 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, the Issuing Bank 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
Issuer, 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, the Issuing Bank 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 XI, to the extent
permitted by applicable law.
11.08 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 Issuing Bank, the Administrative
Agent or any Lender, no Guarantor shall be entitled to be subrogated to any of
the rights of the Issuing Bank, the Administrative Agent or any Lender against
the Issuer or any other Guarantor or any collateral security or guarantee or
right of offset held by the Issuing Bank, 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 Issuer or any
other Guarantor in respect of payments made by such Guarantor hereunder, until
all amounts owing to the Issuing Bank, the Administrative Agent and the
Lenders by the Issuer 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 Issuing Bank, 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.
11.09 Right of Contribution. Subject to Section 11.08,
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 11.09 shall in no respect limit the
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obligations and liabilities of any Guarantor to the Issuing Bank, the
Administrative Agent, the Arrangers and the Lenders, and each Guarantor shall
remain liable to the Issuing Bank, the Administrative Agent, the Arrangers and
the Lenders for the full amount guaranteed by such Guarantor hereunder.
11.10 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 11.01 would otherwise, taking into account the
provisions of Section 11.09, 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 11.01, 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, the Issuing Bank 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.
11.11 Covenants of the Guarantors. Each Guarantor hereby
covenants and agrees that, so long as any Obligations under this Agreement and
any other Transaction Document remains unpaid, the Letter of Credit remain
outstanding, any Standby L/C remain outstanding 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 Issuer.
ARTICLE XII
EVENTS OF DEFAULT
12.01 Events of Default. The following specified events
shall constitute "Events of Default" for the purposes of this Agreement:
(a) Payment Defaults. The Issuer shall (i) fail to reimburse any
Drawing or Standby L/C Drawing or 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 Drawing, Standby L/C Drawing or 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 Issuer herein or in any other Transaction Document on 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 Issuer
or such Guarantor, as the case may be, becomes aware of such incorrectness or
(ii) written notice thereof shall have been given to the Issuer by the
Administrative Agent; or
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(c) Specific Defaults. The Issuer or a Guarantor, as applicable,
shall fail to perform or observe any term, covenant or agreement contained in
Section 9.01, 9.02(a), 9.06 (with respect to the Issuer's and each Guarantor's
existence only), 9.09(b) or 9.10 or ARTICLE X; or
(d) Other Defaults. The Issuer 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 Issuer becomes aware of such failure or (ii) written
notice thereof shall have been given to the Issuer 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 Issuer 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 Issuer 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, suspension de pagos,
reorganization or other similar law now or hereafter in effect or seeking the
appointment of a trustee, receiver, liquidator, custodian or other similar
official of it or any substantial part of its property, or shall consent to
any such relief or to the appointment of or taking possession by any such
official in an involuntary case or other proceeding commenced against it, or
shall make a general assignment for the benefit of creditors, or shall fail
generally to pay its debts as they become due, or shall take any corporate
action to authorize any of the foregoing or the equivalent thereof under
Mexican law (including the Ley de Concursos Mercantiles); or
(g) Involuntary Bankruptcy. An involuntary case or other
proceeding shall be commenced against the Issuer or any Material Subsidiary
seeking liquidation, reorganization, suspension de pagos 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 Issuer
or any Material Subsidiaries under any bankruptcy, insolvency suspension de
pagos or other similar law as now or hereafter in effect; or
(h) Monetary Judgment. A final judgment or judgments or order or
orders not subject to further appeal for the payment of money in an aggregate
amount in excess of U.S.$50,000,000 shall be rendered against the Issuer
and/or any of its one or more Subsidiaries of the Issuer that are neither
discharged nor bonded in full within 30 days thereafter; or
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(i) Pari Passu. The Obligations of the Issuer under this
Agreement or the Commercial Paper Notes or of any Guarantor under this
Agreement shall fail to rank at least pari passu with all other senior
unsecured Debt of the Issuer or such Guarantor, as the case may be; or
(j) Validity of Agreement. The Issuer shall contest the validity
or enforceability of any Transaction Document or shall deny generally the
liability of the Issuer 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 XI hereof shall
not be (or is claimed by either Guarantor not to be) in full force and effect;
(k) Governmental Authority. Any governmental or other consent,
license, approval, permit or authorization which is now or may in the future
be necessary or appropriate under any applicable Requirement of Law for the
execution, delivery, or performance by the Issuer 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, the
Issuing Bank or 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 Issuer or
either Guarantor or take any action that would prevent the Issuer or either
Guarantor from performing its obligations under the Transaction Documents; or
(m) Moratorium; Availability of Foreign Exchange. A moratorium
shall be agreed or declared in respect of any Debt of the Issuer 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 Issuer or either Guarantor for the purpose of performing any
material obligation under any Transaction Document to which it is a party; or
(n) Material Adverse Effect. There shall occur any circumstance,
event or condition of a financial or other nature which the Required Lenders
determine in good faith is reasonably likely to have a material adverse effect
on the ability of the Issuer or either Guarantor to perform its obligations
under this Agreement or any of the other Transaction Documents; or
(o) Attachments of Accounts. The Commercial Paper Account or the
Letter of Credit Account or funds on deposit in, or otherwise to the credit
of, the Commercial Paper Account or the Letter of Credit Account shall be
subject to any writ, order, judgment, warrant of attachment, execution or
similar process or stay or other similar legal restraint; or
(p) 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 Issuer or either
Guarantor is acquired by any Person; provided that the acquisition of
beneficial ownership of capital stock of the Issuer or either Guarantor by
Lorenzo H. Zambrano or any member of his immediate family shall not constitute
an Event of Default.
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12.02 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, do any or all of the following:
(a) direct the Issuing Bank (i) if and only if no Commercial
Paper Notes are Outstanding, to deliver a Notice of Termination to the Issuer
and the Depositary (with a copy to the Administrative Agent and each Dealer)
whereupon the Letter of Credit shall terminate upon the terms and subject to
the conditions stated in the Letter of Credit and the Notice of Termination
and whereupon the Commitments shall terminate or (ii) if any Commercial Paper
Notes are Outstanding, to deliver a Notice of Default to the Issuer and the
Depositary (with a copy to the Administrative Agent and each Dealer) whereupon
(A) the Stated Amount shall be reduced, as directed by the Depositary pursuant
to a Notice of Default Reduction delivered to the Issuing Bank, such that the
Stated Amount equals the aggregate Face Amount of the Commercial Paper Notes
then Outstanding, (B) no amounts shall be reinstated to the Stated Amount of
the Letter of Credit and (C) the Letter of Credit shall expire and the
Commitments shall terminate two Business Days following the date which the
Depositary advises the Issuing Bank is the latest maturity date of any
Commercial Paper Note Outstanding on the date of such Notice of Default;
(b) deliver a Notice of Acceleration to the Depositary with a
copy to the Issuer, the Issuing Bank and each Dealer directing the Depositary
to make a Drawing under the Letter of Credit in the aggregate amount required
to pay in full all Outstanding Commercial Paper Notes entitled to the benefit
of the Letter of Credit upon maturity, the proceeds of such Drawing to be
deposited in the Letter of Credit Account, and require from the Issuer
immediate reimbursement for payments pursuant to such Drawing;
(c) if no Notice of Acceleration has been delivered pursuant to
paragraph (b) above, direct the Issuer immediately to pay into an account
specified by the Administrative Agent, and under the exclusive dominion and
control of the Administrative Agent, an amount in immediately available funds
(to which neither the Issuing Bank nor the Lenders shall have any right in
respect of any Drawing until the Issuing Bank shall have honored the same)
equal to the Stated Amount or, if less, the aggregate Face Amount of all
Commercial Paper Notes Outstanding, whereupon such amount shall become
immediately due and payable without presentment, demand, protest or other
notice, all of which are hereby expressly waived;
(d) declare by notice to the Issuer 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 paragraph (f) or (g) of Section 12.01, without notice
or any other act by the Lenders, the Loans (together with accrued interest
thereon) and all other Obligations of the Issuer 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 Issuer;
(e) notify the Issuer, the Depositary and each Dealer (which
notice may be by telephone to be confirmed in writing within two Business
Days) that an Event of Default has occurred and is continuing and in such
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notice direct the Issuer and the Depositary not to issue any Commercial Paper
Notes from and after the actual receipt by the Depositary of such notice until
such Event of Default has been waived or cured and such notice has been
rescinded in writing; and/or
(f) direct the Issuer immediately to pay into an account
specified by the Administrative Agent, and under the exclusive dominion and
control of the Administrative Agent, an amount in immediately available funds
(to which neither the Issuing Bank nor the Lenders shall have any right in
respect of any Standby L/C Drawing until the Issuing Bank shall have honored
the same) equal to the aggregate stated amount of all Standby L/Cs issued and
outstanding hereunder, whereupon such amount shall become immediately due and
payable without presentment, demand, protest or other notice, all of which are
hereby expressly waived.
provided, however, that nothing in this Section 12.02 shall (x) impair the
obligation of the Issuing Bank to make payments in accordance with the Letter
of Credit with respect to maturing Commercial Paper Notes or in accordance
with the Standby L/Cs or (y) impair the obligation of the Issuer to reimburse
the Issuing Bank for, or the obligation of any Lender to fund its
participation in, any Drawing or Standby L/C Drawing, as the case may be, made
subsequent to the time any remedy provided in this paragraph shall have been
exercised and, provided, further, that nothing in this Section 12.02 shall
give the Issuing Bank the right to request the Depositary to debit the
Commercial Paper Account on any Business Day until after such time as the
Issuing Bank shall have honored any demand for payment under the Letter of
Credit required to be paid on such Business Day.
12.03 Notice of Default. The Administrative Agent shall
give notice to the Issuer of any event occurring under Section 12.01(b) or (d)
promptly upon being requested to do so by any Lender and shall thereupon
notify all the Lenders thereof.
12.04 Default Interest. In the event of default by the
Issuer in the payment on the due date of any sum due under this Agreement, the
Issuer 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(c), 3.07(c) or
4.02(c). 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 Issuer is in default.
ARTICLE XIII
THE ADMINISTRATIVE AGENT
13.01 Appointment and Authorization. Each Lender and the
Issuing Bank hereby irrevocably designate and appoint Barclays Bank PLC, New
York Branch as the Administrative Agent of such Lender and the Issuing Bank
under this Agreement, and each Lender and the Issuing Bank hereby irrevocably
authorize 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,
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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 or the Issuing Bank, 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.
13.02 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.
13.03 Liability of Administrative Agent. Neither the
Administrative Agent nor any of its officers, directors, employees, agents,
attorneys-in-fact or Affiliates shall (a) be 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) be responsible in any manner to any of the Lenders or the
Issuing Bank for any recital, statement, representation or warranty made by
the Issuer, 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 Issuer, 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 or the Issuing Bank 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
Issuer or the Guarantors.
13.04 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
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or consent of the Required Lenders (or when expressly required hereby, all the
Lenders), and such request and any action taken or failure to act pursuant
thereto shall be binding upon all the Lenders.
(b) For purposes of determining compliance with the conditions
specified in Section 6.01, 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.
13.05 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 Issuing Bank and the Lenders) unless the Administrative Agent
shall have received written notice from a Lender, the Issuing Bank or the
Issuer 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 Issuing Bank and the Lenders of
its receipt of any such notice. The Administrative Agent shall take such
action with respect to such Default or Event of Default as may be requested by
the Required Lenders; provided, however, that unless and until the
Administrative Agent has received any such request, the Administrative Agent
may (but shall not be obligated to) take such action, or refrain from taking
such action, with respect to such Default or Event of Default as it shall deem
advisable or in the best interest of the Lenders and the Issuing Bank.
13.06 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 Issuer, 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 Issuer, 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 Issuer 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 Issuer or the
Guarantors which may come
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into the possession of the Administrative Agent or any of its Affiliates,
officers, directors, employees, agents or attorneys-in-fact.
13.07 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 Issuer and without
limiting the obligation of the Issuer to do so), ratably according to the
respective amounts of their Participation 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 Issuer.
13.08 Administrative Agent in Individual Capacity.
Barclays Bank PLC, New York Branch 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
Issuer, the Guarantors or any of their Affiliates as though Barclays Bank PLC,
New York Branch were not the Administrative Agent hereunder and without notice
to or consent of the Lenders. The Lenders acknowledge that, pursuant to such
activities, Barclays Bank PLC, New York Branch or its Affiliates may receive
information regarding the Issuer, the Guarantors and their Affiliates
(including information that may be subject to confidentiality obligations in
favor of the Issuer or the Guarantors) and acknowledge that the Administrative
Agent shall be under no obligation to provide such information to them. With
respect to the Obligations, Barclays Bank PLC, New York Branch shall have the
same rights and powers under this Agreement as any other Lender and may
exercise the same as though it were not the Administrative Agent, and the
terms "Lender" and "Lenders" include Barclays Bank PLC, New York Branch in its
individual capacity.
13.09 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 Issuer. If
the Administrative Agent resigns under this Agreement, the Required Lenders
shall appoint from among the Lenders a successor agent for the Lenders,
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which appointment shall be subject to the approval of the Issuer, 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 Issuer, 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 XIII and
Sections 16.04 and 16.05 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
Issuer 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.$250,000,000.
ARTICLE XIV
THE ISSUING BANK
14.01 Appointment. Each Lender hereby irrevocably
designates and appoints Barclays Bank PLC, New York Branch, as the Issuing
Bank under this Agreement, and each Lender hereby irrevocably authorizes
Barclays Bank PLC, New York Branch, as the Issuing Bank, to take such action
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 Issuing Bank 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 elsewhere in this
Agreement or in any other Transaction Document, the Issuing Bank shall not
have any duties or responsibilities, except those expressly set forth herein
or in any other Transaction Document, nor shall the Issuing Bank 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 Issuing Bank; provided, however, that nothing
contained in this ARTICLE XIV shall be deemed to limit or impair the rights
and obligations of the Issuing Bank under the Letter of Credit or Standby L/Cs
issued hereunder.
14.02 Liability of Issuing Bank. Neither the Issuing Bank
nor any of its officers, directors, employees, agents, attorneys-in-fact or
Affiliates shall (a) be 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 (except for its or such Person's own gross negligence or
willful misconduct), or (b) be responsible in any manner to any Lender for any
recital, statement, representation or warranty made by the Issuer or any
officer thereof contained in this Agreement
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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 Issuing
Bank 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 Issuer or any other party to any Transaction Document to perform
its obligations hereunder or thereunder. Except as otherwise expressly stated
herein, and except for the obligation to examine all documents stipulated in the
Letter of Credit or any Standby L/C issued hereunder, in accordance with the
Uniform Customs and Practice for Documentary Credits and applicable law, the
Issuing Bank 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 Issuer or the Guarantors.
14.03 Reliance by Issuing Bank. The Issuing Bank 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 Issuing Bank. Except for the issuance of the Letter of
Credit, or any Standby L/Cs issued hereunder, in accordance with the terms of
this Agreement and the payment of Drawings or Standby L/C Drawings, as the
case may be, thereunder, the Issuing Bank 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 the Issuing Bank 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 Issuing Bank shall
in all cases be fully protected in acting, or in refraining from acting, under
this Agreement and the other Transactions Documents in accordance with a
request of the Required Lenders, and such request and any action taken or
failure to act pursuant thereto shall be binding upon all the Lenders.
14.04 Credit Decision. Each Lender expressly acknowledges
that neither the Issuing Bank 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 Issuing Bank hereafter taken, including any
review of the affairs of the Issuer, the Guarantors or any of their
Affiliates, shall be deemed to constitute any representation or warranty by
the Issuing Bank to any Lender. Each Lender acknowledges to the Issuing Bank
that it has, independently and without reliance upon the Issuing Bank, 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 Issuer,
the Guarantors and their Affiliates and all applicable bank 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 Issuing Bank, 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
79
inform itself as to the business, prospects operations, property, financial and
other condition and creditworthiness of the Issuer and the Guarantors.
14.05 Indemnification. Whether or not the transactions
contemplated hereby are consummated, the Lenders agree to indemnify upon
demand the Issuing Bank and its Affiliates, directors, officers, agents and
employees (to the extent not reimbursed by the Issuer and without limiting the
obligation of the Issuer to do so in accordance with Section 16.05), ratably
according to the respective amounts of their Participation Percentages in
effect on the date the cause for indemnification arose, from and against any
and all 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 Issuing Bank (or any of its Affiliates, directors, officers,
agents or 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 Issuing Bank under or in connection with any of the
foregoing; provided, however, that no Lender shall be liable for (a) the
payment of any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements to the
extent it results from the Issuing Bank's gross negligence or willful
misconduct or (b) any untrue statement of a material fact in the material
furnished in writing by the Issuing Bank to the Issuer for inclusion in any
Offering Statement or any omission in such Offering Statement to state a
material fact required to be stated therein in light of the circumstances
under which they were made. Notwithstanding the foregoing, no Lender shall be
required to fund any other Lender's portion of an unreimbursed Drawing or
Standby L/C Drawing, as the case may be, which such other Lender fails to fund
hereunder.
14.06 Issuing Bank in Its Individual Capacity. Barclays
Bank PLC and its Affiliates 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 Issuer or
any of its Affiliates as though Barclays Bank PLC, New York Branch were not
the Issuing Bank hereunder and without notice to or consent of the Lenders.
The Lenders acknowledge that, pursuant to such activities, the Issuing Bank or
its Affiliates may receive information regarding the Issuer, the Guarantors
and their Affiliates (including information that may be subject to
confidentiality obligations in favor of the Issuer or the Guarantors) and
acknowledge that the Issuing Bank shall be under no obligation to provide such
information to them. With respect to the Obligations, Barclays Bank PLC, New
York Branch shall have the same rights and powers under this Agreement as any
other Lender and may exercise the same as though it were not the Issuing Bank,
and the terms "Lender" and "Lenders" shall include Barclays Bank PLC, New York
Branch in its individual capacity.
14.07 Notice of Default. The Issuing Bank shall not be
deemed to have knowledge or notice of any Default or Event of Default unless
the Issuing Bank shall have received written notice from the Administrative
Agent, any Lender, the Issuer or a Guarantor referring to this Agreement and
describing such Default or Event of Default.
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ARTICLE XV
THE ARRANGERS
15.01 The Arrangers. The Issuer hereby confirms the
designation of Barclays Capital, the Investment Banking Division of Barclays
Bank PLC, and Banc of America Securities LLC, as arrangers and book-runners of
the Letter of Credit Facility and the Standby L/C Facility. The Arrangers
assume no responsibility or obligation hereunder for servicing, enforcement or
collection of the Obligations, or any duties as agent for the Lenders. The
title "Arranger" or "Book-runner" implies no fiduciary responsibility on the
part of the Arrangers to the Administrative Agent, the Issuing Bank or the
Lenders and the use of either such title does not impose on the Arrangers any
duties or obligations under this Agreement except as may be expressly set
forth herein.
15.02 Liability of Arrangers. Neither the Arrangers nor
any of their respective officers, directors, employees, agents,
attorneys-in-fact or Affiliates shall (a) be 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 the
Arrangers or such Person's own gross negligence or willful misconduct), or (b)
be responsible in any manner to any Lender for any recital, statement,
representation or warranty made by the Issuer 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 Issuer or any other party to
any other Transaction Document to perform its obligations hereunder or
thereunder. Except as otherwise expressly stated herein, the Arrangers 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 Issuer.
15.03 Arrangers in their respective Individual
Capacities. Each of Barclays Capital, the Investment Banking Division of
Barclays Bank PLC and its Affiliates, and Banc of America Securities LLC, and
its Affiliates may make loans to, accept deposits from and generally engage in
any kind of business with the Issuer or any of its Affiliates as though they
were not the Arrangers or Book-runners hereunder.
15.04 Credit Decision. Each Lender expressly acknowledges
that neither the Arrangers 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 Arrangers hereafter taken, including
any review of the affairs of the Issuer or the Guarantors, shall be deemed to
constitute any representation or warranty by the Arrangers to any Lender. Each
Lender acknowledges to the Arrangers that it has, independently and without
reliance upon the Arrangers, 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 Issuer 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 Arrangers, and based
on such documents and
81
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 Issuer or the Guarantors. The Arrangers 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 Issuer which may come into the possession of the
Arrangers or any of their respective officers, directors, employees, agents,
attorneys-in-fact or Affiliates.
ARTICLE XVI
MISCELLANEOUS
16.01 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 Issuer, the Guarantors, the Issuing Bank,
the Arrangers 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 any Lender, at its address or facsimile number set forth
in Schedule 1.01(b) or at such other address or facsimile number as such
Lender may designate by notice to the Issuer, the Issuing Bank, the Arrangers
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 or III or IV or ARTICLE
XIII shall not be effective until received.
16.02 Amendments and Waivers. No amendment or waiver of
any provision of this Agreement, and no consent to any departure by the Issuer
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 Issuer or
the applicable Guarantors, as the case may be, and acknowledged by the
Administrative Agent (which shall be a purely ministerial action), and signed
or consented to by the Required Lenders, and then such amendment, waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given; provided, however, that no amendment, waiver or
consent shall:
(a) (i) except as specifically provided herein, increase or
decrease the Commitment of any Lender;
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(ii) extend the maturity of any of the Obligations, extend
the time of payment of interest thereon, or, other than as provided
in Section 5.02, extend the Stated Termination Date;
(iii) forgive any Obligation, reduce the principal amount of
the Obligations, reduce the rate of interest thereon, or reduce the
amount or change the method of calculation of any Fee hereunder
(other than the Letter of Credit Fees, Standby L/C Fees, Agency Fees
or Arrangement Fees);
in each case without the consent of the Issuer and each Lender directly affected
thereby;
(b) (i) amend, modify or waive any provision of this
Section 16.02;
(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 6.01;
(iv) amend or modify the definition of "Available Standby
L/C Sublimit" in Section 1.01 hereof;
(v) amend, modify or waive any provision of Section 5.12; or
(vi) amend, modify or waive any provision of Section 16.06;
in each case without the consent of the Issuer and all the Lenders;
(c) amend, modify or waive any provision of ARTICLE XIII without
the written consent of the Administrative Agent;
(d) amend, modify or waive any provision of ARTICLE II, IV, V or
XIV or any other provision of this Agreement (including an increase in the
initial Stated Amount and waiver of the Settlement Limits in Section 10.01)
affecting the Issuing Bank without the consent of the Issuing Bank; or
(e) amend, modify or waive any provision of ARTICLE XV without
the consent of the Arrangers.
In addition, no amendment, waiver or consent to or under
this Agreement which could reasonably be expected to affect adversely the
rights of the holders of Commercial Paper Notes will become effective unless
Moody's and S&P have confirmed that such amendment, waiver or consent will not
cause their rating of the Commercial Paper Notes to be lowered or withdrawn.
16.03 No Waiver; Cumulative Remedies. No failure to
exercise and no delay in exercising, on the part of the Issuing Bank, the
Administrative Agent or any Lender, any right, remedy, power or privilege
hereunder or under any other Transaction Document shall operate as
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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.
16.04 Payment of Expenses, Etc. The Issuer 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
counsel to the Administrative Agent, English and New York counsel to the
Issuing Bank and the allocated cost of in-house counsel to the Administrative
Agent), syndication (including printing, distribution and bank meetings),
travel, telephone and duplication expenses and other reasonable and documented
costs and out of- pocket expenses in connection with the arrangement,
documentation, negotiation and closing of the Transactions Documents, subject
to the maximum amount set forth in a letter agreement between the Issuer and
the Arrangers;
(b) all reasonable and documented out-of-pocket costs and
expenses incurred by the Administrative Agent and the Issuing Bank 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 counsel for the
Administrative Agent and the Issuing Bank 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, the Issuing Bank 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 counsel for the
Administrative Agent, the Issuing Bank or such Lender and the allocated costs
of in-house counsel thereof.
16.05 Indemnification. The Issuer agrees to indemnify and
hold harmless the Arrangers, the Administrative Agent, the Issuing Bank 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) 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 Commercial Paper Notes or (b) or
any Environmental Action relating in any way to the Issuer 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 or to have been incurred by reason of any untrue
statement contained in information furnished in writing by the Indemnified
Party expressly for use in an Offering Statement. In the case of an
investigation, litigation or other proceeding to which the indemnity in this
Section 16.05 applies, such indemnity shall be effective whether or not such
investigation, litigation or proceeding is brought
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by the Issuer, 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 Issuer
also agrees not to assert any claim against the Arrangers, the Administrative
Agent, the Issuing Bank, 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 Arranger, the Administrative Agent,
the Issuing Bank nor any Lender shall be deemed to have any fiduciary
relationship with the Issuer or the Guarantor.
16.06 Successor and Assigns.
(a) The provisions of this Agreement shall be binding upon the
Issuer, the Guarantors, their successors and assigns and shall inure to the
benefit of the Issuing Bank, the Arrangers, the Administrative Agent and the
Lenders and their respective successors and assigns, except that the Issuer
and the Guarantors may not assign or otherwise transfer any of their rights or
obligations under this Agreement without the prior written consent of all
Lenders except pursuant to the terms of this Agreement.
(b) Any Lender (other than the Issuing Bank in its capacity as
Issuing Bank) may at any time, and any Lender, if demanded by the Issuer or
the Issuing Bank pursuant to Section 2.06 or Section 5.11 upon at least five
Business Days' notice to such Lender and the Administrative Agent, shall,
assign to one or more commercial banks (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, qualified to receive the benefits of said treaty
(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 Issuer and the
Administrative Agent (which consents shall not be unreasonably withheld and
shall not be required by the Issuer if a Default or an Event of Default has
occurred and is continuing) and the Issuing Bank (which consent may be
withheld for any reason; except that where such Assignee is an OECD Bank,
consent may not be unreasonably withheld); 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 other than from the Issuing Bank; and provided
further that, in the case of an assignment of only part of such rights and
obligations, the Assignee shall acquire a Total Exposure of not less than
U.S.$3,000,000 and integral multiples of U.S.$1,000,000 in excess thereof.
Upon execution and delivery of an Assignment and Assumption Agreement and
payment by the Assignee to the transferor Lender of an amount equal to the
purchase price agreed between such transferor Lender and such Assignee, such
Assignee shall be a Lender party to this Agreement and shall have all the
rights and obligations of a Lender with a Commitment as set forth in such
instrument of assumption (in addition to any
85
Commitment previously held by it), and the transferor Lender shall be released
from its obligations hereunder to a corresponding extent (except to the extent
the same arose prior to the assignment), and no further consent or action by any
party shall be required. Upon the consummation of any assignment pursuant to
this paragraph (b), the transferor Lender, the Administrative Agent and the
Issuer 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 2.06(b) or 5.11, the Issuer), without
prejudice to any claims the Issuer 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.$2,000 and to the Issuing Bank a fee of
U.S.$1,000.
(c) Nothing herein shall prohibit any Lender from pledging or
assigning any Note to any Federal Reserve Bank of the United States in
accordance with applicable law and without compliance with the foregoing
provisions of this Section 16.06; provided, however, that such pledge or
assignment shall not release such Lender from its obligations hereunder.
(d) Any Lender may, without any consent of the Issuer, the
Administrative Agent, the Issuing Bank 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 or its share of the Letter of Credit Exposure or
its share of the Standby L/C Exposure. In the event of any such grant by a
Lender of a participating interest to a Participant, whether or not upon
notice to the Issuer, the Issuing Bank and the Administrative Agent, such
Lender shall remain responsible for the performance of its obligations
hereunder, and the Issuer 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 Issuer 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 Issuer agrees that each Participant shall, to the extent
provided in its participation agreement, be entitled to the benefits of
Sections 5.07 and 5.10 with respect to its participating interest as if it
were a Lender named herein; provided, however, that the Issuer 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
86
effect for purposes of this Agreement only to the extent of a participating
interest granted in accordance with this paragraph (d).
(e) Any Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
16.06, disclose to the Assignee or Participant or proposed Assignee or
Participant, any information relating to the Issuer furnished to such Lender
by or on behalf of the Issuer; 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
Issuer received by it from such Lender.
16.07 Right of Set-off. In addition to any rights and
remedies of the Lenders and the Issuing Bank provided by law, each Lender and
the Issuing Bank shall have the right, without prior notice to the Issuer or
the Guarantors, any such notice being expressly waived by the Issuer and the
Guarantors to the extent permitted by applicable law, upon any amount becoming
due and payable by the Issuer 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 the Issuing Bank, as the case may be, or any branch or
agency thereof to or for the credit or the account of the Issuer or the
Guarantors. Each Lender and the Issuing Bank agree promptly to notify the
Issuer, or such Guarantor, as the case may be, and the Administrative Agent
after any such set-off and application made by such Lender or the Issuing
Bank, provided that the failure to give such notice shall not affect the
validity of such set-off and application.
16.08 Confidentiality. Neither the Administrative Agent,
the Issuing Bank nor any Lender shall disclose any Confidential Information to
any other Person without the prior written consent of the Issuer, other than
(a) to the Administrative Agent's, the Issuing Bank's or such Lender's
Affiliates and their officers, directors, employees, agents and advisors and,
as contemplated by Section 16.06(e), to actual or prospective Assignees and
Participants, and then only on a confidential basis, (b) as required by any
law, rule or regulation (including as may be required in connection with an
audit by the Administrative Agent's, the Issuing Bank's or such Lender's
independent auditors) 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.
16.09 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 Sections 6.01(i)(i), (ii) and (iii) 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.
16.10 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.
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16.11 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 and, with respect to the Issuer and the Guarantors, to the
competent courts of their own corporate domicile for purposes of any suit,
legal action or proceeding arising out of or relating to this Agreement, any
other Transaction Document or the transactions contemplated hereby, and each
of the parties hereto hereby irrevocably agrees that all claims in respect of
such suit, action or proceeding may be heard and determined in such federal or
New York State court and, with respect to the Issuer and the Guarantors, as
well as in the competent court of their own corporate domicile.
(b) Each of the parties hereto hereby irrevocably waives, to the
fullest extent it may effectively do so, any objection that it may now or
hereafter have to the laying of venue of any such suit, action or proceeding
in any such federal or New York State court or, with respect to the Issuer and
the Guarantors, any such competent court in the place of their corporate
domicile 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 THE ARRANGER, THE ADMINISTRATIVE AGENT, THE
ISSUING BANK OR ANY LENDER IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR
ENFORCEMENT THEREOF.
16.12 Appointment of Agent for Service of Process.
(a) The Issuer and each Guarantor hereby irrevocably appoints CT
Corporation System, with an office on the date hereof at 111 Eighth Avenue,
13th Floor, New York, New York 10011, as its agent (the "Process Agent") to
receive on behalf of itself and its property, service of copies of the summons
and complaint and any other process which may be served in any such action or
proceeding brought in any New York State or federal court sitting in New York
City. Such service may be made by delivering a copy of such process to
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the Issuer or the Guarantor, as the case may be, in care of the Process Agent at
its address specified above, and the Issuer or the 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 Issuer 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 16.11 or in this Section 16.12 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.
16.13 Waiver of Sovereign Immunity. To the extent that
the Issuer 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 Issuer 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 Issuer and each
Guarantor agrees that the waivers set forth in this Section 16.13 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.
16.14 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
Issuer 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, the Issuing Bank 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, the
Issuing Bank 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, the Issuing Bank or the Administrative Agent of any sum adjudged
to be so due in such other currency such Lender, the Issuing Bank 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 the Issuing Bank, such Lender or the
Administrative Agent, the Issuer 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 the Issuing Bank, such Lender
or the Administrative Agent against such resulting loss.
16.15 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
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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.
16.16 Effect of Termination of Commitments. Any
Commercial Paper Notes issued and sold in accordance with the terms of the
Transaction Documents and which are Outstanding on the date of the termination
of any Commitment hereunder shall remain valid obligations of the Issuer and
shall be entitled to the benefits of the Letter of Credit to the extent
provided therein.
16.17 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.
16.18 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 5.05,
5.07, 5.09, 5.10, 16.04, 16.05, 16.08, 16.09, 16.11 and 16.12, and the
obligations of the Lenders under Sections 13.07 and 14.05, shall survive the
termination of the Commitments, the expiration of Standby L/Cs and the
expiration of the Letter of Credit 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.