EXHIBIT 4.15
EXECUTION COPY
CREDIT AGREEMENT
among
CEMEX, S.A. de C.V.,as Borrower and CEMEX MEXICO, S.A. de C.V., as Guarantor
and EMPRESAS TOLTECA de MEXICO, S.A. de C.V., as Guarantor and BARCLAYS BANK
PLC, as Issuing Bank and Documentation Agent and ING BANK N.V., as Issuing Bank
and The Several Lenders Party Hereto, as Lenders and BARCLAYS CAPITAL,THE
INVESTMENT BANKING DIVISION OF BARCLAYS BANK PLC, as Joint Bookrunner and ING
CAPITAL LLC, as Joint Bookrunner and Administrative Agent
US$800,000,000
Dated as of June 23, 2004
TABLE OF CONTENTS
-----------------
Page
----
ARTICLE I DEFINITIONS.......................................................1
1.01 Certain Definitions...........................................1
1.02 Other Definitional Provisions. ..............................18
1.03 Accounting Terms and Determinations. ........................18
ARTICLE II THE LOAN FACILITIES.............................................18
2.01 Revolving Loans..............................................18
2.02 Swing Line Loans.............................................22
2.03 Interest.....................................................25
ARTICLE III THE STANDBY L/C FACILITY.......................................26
3.01 Issuance of the Standby L/C. ..................................26
3.02 Reimbursement Obligations......................................28
3.03 Obligations to Reimburse Standby L/C Drawing Absolute..........28
3.04 Participating Interests........................................29
3.05 Limited Liability of the Issuing Banks.. ......................32
ARTICLE IV TERMINATION AND REDUCTION OF COMMITMENTS; FEES, TAXES,
PAYMENT PROVISIONS..............................................33
4.01 Termination or Reduction of Commitments......................33
4.02 Extension of Termination Date................................33
4.03 Fees.........................................................35
4.04 Computation of Fees..........................................36
4.05 Taxes........................................................36
4.06 General Provisions as to Payments............................38
4.07 Funding Losses...............................................39
4.08 Basis for Determining Interest Rate Inadequate or Unfair. ...39
4.09 Capital Adequacy.............................................40
4.10 Illegality...................................................40
4.11 Requirements of Law..........................................41
4.12 Substitute Lenders...........................................42
Sharing of Payments, Etc..........................................42
Conditions to Effectiveness. .....................................43
ARTICLE V CONDITIONS PRECEDENT ............................................43
5.02 Conditions Precedent to Borrowings, Continuation or
Conversion of the Loans and Issuances of Standby L/Cs........45
ARTICLE VI REPRESENTATIONS AND WARRANTIES OF THE BORROWER..................46
6.01 Corporate Existence and Power...............................46
6.02 Power and Authority; Enforceable Obligations................46
6.03 Compliance with Law and Other Instruments...................47
6.04 Consents/Approvals..........................................47
6.06 Litigation..................................................47
6.07 No Immunity.................................................48
6.08 Governmental Regulations....................................48
6.09 Direct Obligations; Pari Passu; Liens.......................48
6.10 Subsidiaries................................................48
6.11 Ownership of Property.......................................48
6.12 No Recordation Necessary....................................48
6.13 Taxes.......................................................49
6.14 Compliance with Laws........................................49
6.15 Absence of Default..........................................49
6.16 Full Disclosure.............................................50
6.17 Choice of Law; Submission to Jurisdiction and Waiver
of Sovereign Immunity.......................................50
6.18 Total Outstandings..........................................50
6.19 Existing Standby L/C's......................................50
6.20 Pension and Welfare Plans...................................50
6.21 Environmental Matters.......................................50
6.22 Margin Regulations..........................................51
ARTICLE VII REPRESENTATIONS AND WARRANTIES OF THE GUARANTORS...............52
7.01 Corporate Existence and Power................................52
7.02 Power and Authority; Enforceable Obligations.................52
7.03 Compliance with Law and Other Instruments. ..................52
7.04 Consents/Approvals. .........................................53
7.05 Litigation; Material Adverse Effect..........................53
7.06 No Immunity..................................................53
7.07 Governmental Regulations.....................................53
7.09 No Recordation Necessary.....................................53
7.10 Choice of Law; Submission to Jurisdiction and Waiver
of Sovereign Immunity........................................54
ARTICLE VIII AFFIRMATIVE COVENANTS.........................................54
8.01 Financial Reports and Other Information. ....................54
8.02 Notice of Default and Litigation.............................55
8.03 Compliance with Laws and Contractual Obligations, Etc........55
8.04 Payment of Obligations.......................................56
8.05 Maintenance of Insurance.....................................56
8.06 Conduct of Business and Preservation of Corporate
Existence....................................................56
8.07 Books and Records............................................56
8.08 Maintenance of Properties, Etc...............................56
8.09 Use of Proceeds..............................................57
8.10 Pari Passu Ranking...........................................57
8.11 Transactions with Affiliates.................................57
8.12 Maintenance of Governmental Approvals........................57
8.13 Measurement Date.............................................57
8.14 Inspection of Property.......................................58
ARTICLE IX NEGATIVE COVENANTS..............................................58
9.01 Financial Conditions. ...........................................58
9.02 Liens............................................................58
9.03 Consolidations and Mergers. .....................................60
9.04 Sales of Assets, Etc.............................................61
9.05 Change in Nature of Business.....................................61
9.06 Margin Regulations...............................................61
ARTICLE X OBLIGATIONS OF GUARANTORS .......................................61
10.01 The Guaranty.. .................................................61
10.02 Nature of Liability. ...........................................62
10.03 Unconditional Obligations.......................................62
10.04 Independent Obligation..........................................62
10.05 Waiver of Notices. .............................................63
10.06 Waiver of Defenses..............................................63
10.07 Bankruptcy and Related Matters..................................64
10.08 No Subrogation..................................................65
10.09 Right of Contribution...........................................65
10.10 General Limitation on Guaranty..................................66
10.11 Covenants of the Guarantors.....................................66
ARTICLE XI EVENTS OF DEFAULT...............................................66
11.01 Events of Default. .............................................66
11.02 Remedies........................................................69
11.03 Notice of Default. .............................................69
11.04 Default Interest. ..............................................69
ARTICLE XII THE ADMINISTRATIVE AGENT.......................................69
12.01 Appointment and Authorization. .................................69
12.02 Delegation of Duties............................................70
12.03 Liability of Administrative Agent..............................70
12.04 Reliance by Administrative Agent...............................70
12.05 Notice of Default..............................................71
12.06 Credit Decision................................................71
12.07 Indemnification................................................72
12.08 Administrative Agent in Individual Capacity....................72
12.09 Successor Administrative Agent.................................73
ARTICLE XIII THE ISSUING BANKS.............................................73
13.01 Appointment. ...................................................73
13.02 Liability of Issuing Bank. .....................................74
13.03 Reliance by Issuing Banks.......................................74
13.04 Credit Decision. ...............................................74
13.05 Indemnification.................................................75
13.06 Issuing Banks in their Individual Capacities. ..................75
13.07 Notice of Default. .............................................76
ARTICLE XIV THE JOINT BOOKRUNNERS..........................................76
14.01 The Joint Bookrunners...........................................76
14.02 Liability of Joint Bookrunners..................................76
14.03 Joint Bookrunners in their respective Individual Capacities. ...76
14.04 Credit Decision. ...............................................76
ARTICLE XV MISCELLANEOUS...................................................77
15.01 Notices. .......................................................77
15.02 Amendments and Waivers..........................................77
15.03 No Waiver; Cumulative Remedies. ................................79
15.04 Payment of Expenses, Etc........................................79
15.05 Indemnification.................................................79
15.06 Successor and Assigns...........................................80
15.07 Right of Set-off. ..............................................82
15.08 Confidentiality. ...............................................82
15.09 Use of English Language.........................................83
15.10 GOVERNING LAW...................................................83
15.11 Submission to Jurisdiction......................................83
15.12 Appointment of Agent for Service of Process.....................84
15.13 Waiver of Sovereign Immunity. ..................................84
15.14 Judgment Currency...............................................84
15.15 Counterparts....................................................85
15.16 USA PATRIOT Act. ...............................................85
15.17 Severability. ..................................................85
15.18 Survival of Agreements and Representations......................85
SCHEDULES
Schedule 1.01(a) Commitments
Schedule 1.01(b) Lending Offices
Schedule 3.01 Existing Standby L/Cs
Schedule 6.06 Litigation
Schedule 6.10 Subsidiaries
Schedule 7.05 Litigation
Schedule 9.02 Liens
EXHIBITS
Exhibit A Form of Note
Exhibit B Notice of Borrowing
Exhibit C Form of Notice of Extension/Conversion
Exhibit D Form of Assignment and Assumption Agreement
Exhibit E Form of Opinion of Special New York Counsel to
the Borrower and the Guarantors
Exhibit F Form of Opinion of Mexican Counsel to the Borrower
and the Guarantors
Exhibit G Form of Standby Letter of Credit
CREDIT AGREEMENT
CREDIT AGREEMENT, dated as of June 23, 2004 among CEMEX, S.A. de C.V.,
a sociedad anonima de capital variable organized and existing pursuant to the
laws of the United Mexican States (the "Borrower"), CEMEX MEXICO, S.A. de C.V.,
a sociedad anonima de capital variable organized and existing pursuant to the
laws of the United Mexican States, EMPRESAS TOLTECA DE MEXICO, S.A. de C.V., a
sociedad anonima de capital variable organized and existing pursuant to the
laws of the United Mexican States (each a "Guarantor" and together, the
"Guarantors"), BARCLAYS BANK PLC, NEW YORK BRANCH ("Barclays"), as an Issuing
Bank and Documentation Agent, ING BANK N.V., as an Issuing Bank (together with
Barclays in its capacity as an Issuing Bank, the "Issuing Banks"), the several
Lenders party hereto, BARCLAYS CAPITAL, THE INVESTMENT BANKING DIVISION OF
BARCLAYS BANK PLC, as a Joint Bookrunner and ING CAPITAL LLC, as a Joint
Bookrunner and Administrative Agent.
RECITALS
WHEREAS, Barclays issued its letter of credit (the "CP Letter of
Credit") in the maximum face amount of US$300,000,000 to provide for the
repayment of outstanding promissory notes of the Borrower issued in the United
States commercial paper market and issued certain standby letters of credit,
each in accordance with the provisions of (i) a First Amended and Restated
Reimbursement and Credit Agreement, dated as of August 8, 2003 (the "Prior
Agreement"), among the Borrower, the Guarantors, Barclays, as issuing bank,
documentation agent and administrative agent thereunder, the several lenders
party thereto, Barclays Capital, the Investment Banking Division of Barclays,
as a joint arranger thereunder and Banc of America Securities LLC, as a joint
arranger and syndication agent thereunder, and (ii) an existing Depositary
Agreement, dated as of August 8, 2003, by and among the parties thereto, upon
the terms and subject to the conditions set forth therein.
WHEREAS, the Borrower proposes to terminate its existing commercial
paper program (the "CP Program"), the CP Letter of Credit issued in connection
therewith and the Prior Agreement and enter into a new three-year revolving
credit facility.
NOW, THEREFORE, each of the Parties hereto hereby agrees as follows:
ARTICLE I
DEFINITIONS
1.01 Certain Definitions. As used in this Agreement, the following
terms shall have the following meanings:
"Acquired Subsidiary" means any Subsidiary acquired by the Borrower or
any other Subsidiary after the date hereof in an Acquisition, and any
Subsidiaries of such Acquired Subsidiary on the date of such Acquisition.
"Acquiring Subsidiary" means any Subsidiary of the Borrower or any one
of its Subsidiaries solely for the purpose of participating as the acquiring
party in any Acquisition, and any Subsidiaries of such Acquiring Subsidiary
acquired in such Acquisition.
"Acquisition" means any merger, consolidation, acquisition or lease of
assets, acquisition of securities or business combination or acquisition, or
any two or more of such transactions, if upon the completion of such
transaction or transactions, the Borrower or any Subsidiary thereof has
acquired an interest in any Person who is deemed to be a Subsidiary under this
Agreement and was not a Subsidiary prior thereto.
"Additional Commitment Lender" has the meaning specified in Section
4.02(f).
"Adjusted Consolidated Net Tangible Assets" means, with respect to
any Person, the total assets of such Person and its Subsidiaries (less
applicable depreciation, amortization and other valuation reserves), including
any write-ups or restatements required under Mexican GAAP (other than with
respect to items referred to in clause (ii) below), after deducting therefrom
(i) all current liabilities of such Person and its Subsidiaries (excluding the
current portion of long-term debt) and (ii) all goodwill, trade names,
trademarks, licenses, concessions, patents, unamortized debt discount and
expense and other intangibles, all as determined on a consolidated basis in
accordance with Mexican GAAP.
"Administrative Agent" means ING Capital LLC, in its capacity as
administrative agent for each of the Participating 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 4.10(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 ownership of voting securities, by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Aggregate Available Standby L/C Sublimit" means, as of any date, the
lesser of (a)(i) the aggregate amount of the Available Standby L/C Sublimit of
each Issuing Bank minus (ii) the aggregate amount of the Standby L/C Exposure
of each Issuing Bank at such time, and (b) the Available Commitments.
"Aggregate Committed Amount" means the aggregate amount of all of the
Commitments.
"Aggregate Exposure" means the sum of (i) the Outstanding Borrowings
under this Agreement and (ii) the Aggregate Standby L/C Exposure.
"Aggregate Standby L/C Sublimit" means, initially $200,000,000, as
such amount may be reduced in accordance with Section 4.01.
"Aggregate Standby L/C Exposure" means the sum the Standby L/C
Exposure of each Issuing Bank.
"Agreement" means this Credit Agreement, as the same may hereafter be
amended, supplemented or otherwise modified from time to time.
"Applicable Margin" means, at any date, the applicable margin set
forth below based upon the Borrowers latest twelve-month total Consolidated Net
Debt/EBITDA Ratio as of such date (it being understood that measurement of the
Consolidated Net Debt/EBITDA Ratio as of the most recent Measurement Date is
sufficient for this purpose):
Applicable Margin
Consolidated Net Debt/EBITDA Ratio Base Rate Loans LIBOR Loans
3.00 to 1 or greater 0.70% 0.70%
2.99 to 1 or less, but greater than 2.50 to 1 0.60% 0.60%
2.49 to 1 or less, but greater than 2.00 to 1 0.55% 0.55%
2.00 to 1 or less 0.50% 0.50%
; provided, however, the initial Applicable margin shall be 0.55.
"Appropriate Issuing Bank" means, at any time, the Issuing Bank with
the greatest Available Standby L/C Sublimit, or if the Available Standby L/C
Sublimit for each Issuing Bank is equal, then the Issuing Bank designated as
such in the Notice of Borrowing.
"Assignee" has the meaning specified in Section 15.06(b).
"Assignment and Assumption Agreement" means an assignment and
assumption agreement in substantially the form of Exhibit D.
"Available Commitments" means, as of any date, the total amount of the
Aggregate Committed Amount minus the Aggregate Exposure.
"Available Standby L/C Sublimit" means, with respect to each Issuing
Bank, as of any date, the lesser of (a)(i) Standby L/C Sublimit for such
Issuing Bank minus (ii) the Standby L/C Exposure for such Issuing Bank 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 the Reference Banks shall
take effect at the opening of business on the day specified in the public
announcement of such change.
"Base Rate Loan" means any Loan made or maintained at a rate of
interest calculated with reference to the Base Rate.
"Bookrunners" or "Joint Bookrunners" means Barclays Capital, the
Investment Banking Division of Barclays Bank PLC, and ING Capital LLC, in
their capacity as joint bookrunners hereunder, and each of their successors in
such capacity.
"Borrower" has the meaning specified in the preamble hereto.
"Borrowing" means the aggregate amount of Loans hereunder to be made
to the Borrower pursuant to Article II on a particular date by each of the
Lenders.
"Borrowing Request" means a Notice of Borrowing, a Swing Line Notice
of Borrowing or a Standby L/C Request.
"Business Day" means any day other than a Saturday or Sunday or other
day on which commercial banks in New York City or The Netherlands Antilles are
authorized or required by law to close.
"Capital Lease" means, as to any Person, the obligations of such
Person to pay rent or other amounts under any lease of (or other arrangement
conveying the right to use) real or personal property, or a combination
thereof, which obligations are required to be classified and accounted for as
capital leases on a balance sheet of such Person under Mexican GAAP and, for
the purposes of this Agreement, the amount of such obligations at any time
shall be the capitalized amount thereof at such time determined in accordance
with Mexican GAAP.
"Capital Stock" means any and all shares, interests, participations
or other equivalents (however designed) of capital stock of a corporation, any
and all equivalent ownership interests in a Person (other than a corporation)
and any and all warrants, rights or options to purchase any of the foregoing.
"Commitment" means, with respect to each Lender, the aggregate
principal amount set forth opposite the name of such Lender in Schedule
1.01(a) or in any Assignment and Assumption Agreement, as such amount may be
reduced or increased from time to time in accordance with the provisions
hereof.
"Commitment Percentage" means, with respect to each Lender, a
fraction (expressed as a decimal) the numerator of which is the Commitment of
such Lender at such time and the denominator of which is the Aggregate
Committed Amount at such time. The initial Commitment Percentages are set out
on Schedule 1.01(a).
"Commitment Period" means the period from and including the Effective
Date to but excluding the earlier of (i) the Termination Date, or (ii) the
date on which the Commitments terminate in accordance with the provisions of
this Agreement.
"Confidential Information" means information that the Borrower or a
Guarantor furnishes to the Administrative Agent, the Joint Bookrunners or any
Lender in a writing designated as confidential, but does not include any such
information that is or becomes generally available to the public or that is or
becomes available to the Administrative Agent or the Joint Bookrunners or such
Lender from a source other than the Borrower or a Guarantor that is not, to
the best of the Administrative Agent's, the Joint Bookrunners' or such
Lender's knowledge, acting in violation of a confidentiality agreement with
the Borrower or Guarantor or any other Person.
"Consolidated" refers to the consolidation of accounts in accordance
with Mexican GAAP.
"Consolidated Fixed Charges" means, for any period, the sum (without
duplication) of (a) Consolidated Interest Expense for such period, (b)
mandatory dividend payments during such period in respect of preferred Capital
Stock of the Borrower 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) EBITDA for such period to (b) Consolidated Fixed Charges for such
period.
"Consolidated Interest Expense" means, for any period, the total
gross interest expense of the Borrower and its consolidated Subsidiaries
allocable to such period in accordance with Mexican GAAP.
"Consolidated Leverage Ratio" means, at any time during any fiscal
quarter, the ratio of (a) Consolidated Net Debt at such time to (b) 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 Borrower and its
Subsidiaries at such date, plus (b) to the extent not included in Debt the
aggregate amount of all derivative financing in the form of equity swaps
outstanding at such date plus (c) to the extent not included in Debt, all
payment obligations of such Person under the 9.66% Puttable Capital Securities
issued by CEMEX International Capital LLC on May 14, 1998, or under any
transaction similar thereto, minus (d) all Temporary Investments of the
Borrower and its Subsidiaries at such date.
"Contractual Obligation" means, as to any Person, any provision of any
security issued by such Person or of any indenture, mortgage, deed of trust,
loan agreement or other agreement to which such Person is a party or by which
it or any of its property or assets is bound.
"CP Letter of Credit" has the meaning set forth in the recitals.
"Credit Party" means any of the Borrower or the Guarantors.
"Debt" of any Person means, without duplication, (i) all obligations
of such Person for borrowed money, (ii) all obligations of such Person
evidenced by bonds, debentures, notes or other similar instruments, (iii) all
obligations of such Person to pay the deferred purchase price of property or
services, except trade accounts payable arising in the ordinary course of
business, (iv) all obligations of such Person as lessee under Capital Leases,
(v) all Debt of others secured by a Lien on any asset of such Person, up to the
value of such asset, as recorded in such Person's most recent balance sheet,
(vi) all obligations of such Person with respect to product invoices incurred
in connection with export financing, and (vii) all obligations of such Person
under repurchase agreements for the stock issued by such Person or another
Person. For the avoidance of doubt, Debt does not include Derivatives. With
respect to the Borrower and its subsidiaries, the aggregate amount of Debt
outstanding shall be adjusted by the Value of Debt Currency Derivatives solely
for the purposes of calculating the Consolidated Leverage Ratio. If the Value
of Debt Currency Derivatives is a positive mark-to-market valuation for the
Borrower and its subsidiaries, then Debt shall decrease accordingly, and if the
Value of Debt Currency Derivatives is a negative mark-to-market valuation for
the Borrower and its subsidiaries, then Debt shall increase by the absolute
value thereof.
"Debt Currency Derivatives" means derivatives of the Borrower and its
subsidiaries related to currency entered into for the purposes of hedging
exposures under outstanding Debt of the Borrower and its subsidiaries,
including but not limited to cross-currency swaps and currency forwards.
"Default" means any condition, event or circumstance which, with the
giving of notice or lapse of time or both, would, unless cured or waived,
become an Event of Default.
"Defaulting Lender" has the meaning specified in Section 2.01(d).
"Derivatives" means any type of derivative obligations, including but
not limited to equity forwards, capital hedges, cross-currency swaps, currency
forwards, interest rate swaps and swaptions.
"Disbursement Date" means, with respect to a Drawing, the date on
which such Drawing is paid by the relevant Issuing Bank and, with respect to a
Loan, the date on which such Loan is made by the Participating Lender.
"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.
"Drawing" means a drawing made under a Standby L/C.
"EBITDA" means, for any period, the sum for the Borrower and its
Subsidiaries, determined on a consolidated basis of (a) operating income
(utilidad de operacion), (b) cash interest income and (c) depreciation and
amortization expense, in each case determined in accordance with Mexican GAAP
consistently applied for such period. For the purposes of calculating EBITDA
for any period of four consecutive fiscal quarters (each, a "Reference Period")
pursuant to any determination of the Consolidated Leverage Ratio (but not
Consolidated Fixed Charge Coverage Ratio), (i) if at any time during such
Reference Period the Borrowers or any of its Subsidiaries shall have made any
Material Disposition, the EBITDA for such Reference Period shall be reduced by
an amount equal to the EBITDA (if positive) attributable to the property that
is the subject of such Material Disposition for such Reference Period and (ii)
if at any time during such Reference Period the Borrower or any of its
Subsidiaries shall have made any Material Acquisition, EBITDA for such
Reference Period shall be calculated after giving pro forma effect thereto
(including the incurrence or assumption of any Debt) as if such Material
Acquisition had occurred on the first day of such Reference Period.
Additionally, if since the beginning of such Reference Period any Person that
subsequently shall have become a Subsidiary or was merged or consolidated with
the Borrower or any of its Subsidiaries as a result of a Material Acquisition
occurring during such Reference Period shall have made any Disposition or
Acquisition of property that would have required an adjustment pursuant to
clause (i) or (ii) above if made by the Borrower or any of its Subsidiaries
during such Reference Period, EBITDA for such period shall be calculated after
giving pro forma effect thereto as if such Disposition or Acquisition had
occurred on the first day of such period.
"Effective Date" has the meaning specified in Section 5.01.
"Environmental Action" means any audit procedure, action, suit,
demand, demand letter, claim, notice of non-compliance or violation, notice of
liability or potential liability, investigation, proceeding, consent order or
consent agreement relating in any way to any Environmental Law, Environmental
Permit or Hazardous Materials or arising from alleged injury or threat of
injury to health, safety or the environment, including (a) by any Governmental
Authority for enforcement, cleanup, removal, response, remedial or other
actions or damages and (b) by any Governmental Authority or any third party for
damages, contribution, indemnification, cost recovery, compensation or
injunctive relief.
"Environmental Law" means any federal, state, local or foreign
statute, law, ordinance, rule, regulation, technical standard (norma tecnica or
norma oficial Mexicana), code, order, judgment, decree or judicial agency
interpretation, policy or guidance relating to pollution or protection of the
environment, health, safety or natural resources, including those relating to
the use, handling, transportation, treatment, storage, disposal, release or
discharge of Hazardous Materials.
"Environmental Permit" means any permit, approval, identification
number, license or other authorization required under any Environmental Law.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and any successor statute thereto, as interpreted by the rules and
regulations thereunder, all as the same may be in effect from time to time.
References to sections of ERISA shall be construed also to refer to any
successor sections.
"ERISA Affiliate" means an entity, whether or not incorporated, that
is under common control with the Borrower within the meaning of Section
4001(a)(14) of ERISA, or is a member of a group that includes the Borrower and
that is treated as a single employer under Sections 414(b) or (c) of the Code.
"Event of Default" has the meaning specified in Section 11.01.
"Federal Funds Rate" means, for any relevant day, the overnight
Federal funds rate as published for such day in the Federal Reserve Statistical
Release H.15 (519) or any successor publication, or, if such rate is not
published for any day, the rate for such day will be the rate set forth in the
daily statistical release designated as the Composite 3:30 p.m. Quotation for
U.S. Government Securities, or any successor publication, published by the
Federal Reserve Bank of New York (including any such successor, the "Composite
3:30 p.m. Quotation" for such day under the caption "Federal Funds Effective
Rate"). If on any relevant day the appropriate rate for such previous day is
not yet published in either H.15 (519) or the Composite 3:30 p.m. Quotations,
the rate for such day will be the arithmetic mean as determined by the
Administrative Agent of the rates for the last transaction in overnight Federal
funds arranged prior to 9:00 a.m. (New York City time) on that day by each of
three leading brokers of recognized standing of Federal funds transactions in
New York City selected by the Administrative Agent.
"Federal Reserve Board" means the Board of Governors of the Federal
Reserve System of the United States.
"Fee Letter" means any written agreement as to the payment of fees
referred to in Section 4.03.
"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 195, Section I of the Mexican Income Tax
Law.
"Funding Default" means a default by a Lender pursuant to Section
2.01(d).
"Governmental Authority" means any branch of power or government or
any state, department or other political subdivision thereof, or any
governmental body, agency, authority (including any central bank or taxing or
environmental authority), any entity or instrumentality (including any court or
tribunal) exercising executive, legislative, judicial, regulatory,
administrative or investigative functions of or pertaining to government.
"Guarantor" has the meaning specified in the preamble hereto.
"Hazardous Materials" means (a) radioactive materials,
asbestos-containing materials, polychlorinated biphenyls, radon gas and (b) any
other chemicals, materials or substances designated, classified or regulated as
hazardous or toxic or as a pollutant or contaminant under any applicable
Environmental Law.
"Indemnified Party" has the meaning specified in Section 15.05.
"Interest Payment Date" means (i) with respect to any Base Rate Loan,
the last day of each March, June, September and December, the date of repayment
of such Loan and the Termination Date and, (ii) with respect to any LIBOR Loan,
the last day of each Interest Period for such Loan, the date of repayment of
principal of such Loan and on the Termination Date, (iii) with respect to any
Swing Line Loan, the Maturity Date thereof. If an Interest Payment Date falls
on a date that is not a Business Day, such Interest Payment Date shall be
deemed to be the next succeeding Business Day, except that in the case of LIBOR
Loans where the next succeeding Business Day falls in the next succeeding
calendar month, then on the next preceding Business Day.
"Interest Period" means, with respect to each Borrowing of LIBOR
Loans, the period (i) commencing (A) on the date of such Borrowing or
conversion of Base Rate Loans into LIBOR Loans or (B) in the case of the
continuation of LIBOR Loans for a further Interest Period, on the last day of
the immediately preceding Interest Period and
(ii) ending one, two, three or six months thereafter as the Borrower
may elect in the applicable Notice of Borrowing or Notice of
Continuation/Conversion; provided, however, that:
(1) any Interest Period which would otherwise end on a day which is
not a LIBOR Business Day shall, subject to paragraph (3) below, be extended to
the next succeeding LIBOR Business Day unless such LIBOR Business Day falls in
another calendar month, in which case such Interest Period shall end on the
immediately preceding LIBOR Business Day;
(2) any Interest Period which begins on the last LIBOR Business Day of
a calendar month (or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period) shall, subject to
paragraph (3) below, end on the last LIBOR Business Day of a calendar month;
(3) any Interest Period which would otherwise end after the last day
of the Commitment Period shall end on the last day of the Commitment Period;
and
(4) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date.
"Issuing Bank" means each of Barclays Bank PLC and ING Bank N.V., each
in its capacity as issuer of Standby L/Cs, and its successors in such capacity.
"Lender" means each financial institution designated as such on the
signature pages hereof, each Assignee which becomes a Lender pursuant to
Section 4.02(c) or 15.06(b), each Substitute Lender and each of their
respective successors or assigns.
"Lending Office" means, with respect to any Lender, (a) the office or
offices of such Lender specified as its "Lending Office" or "Lending Offices"
in Schedule 1.01(b) or (b) such other office or offices of such Lender as it
may designate as its Lending Office by notice to the Borrower and the
Administrative Agent and with the consent of the Issuing Banks (which shall not
be unreasonably withheld).
"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 LIBOR 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 Borrower on such second prior LIBOR 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 LIBOR 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.
"LIBOR Business Day" means any Business Day on which commercial banks
are open in London for the transaction of international business, including
dealings in Dollar deposits in the international interbank markets.
"LIBOR Loan" means any Loan made or maintained at a rate of interest
calculated with reference to LIBOR.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset.
The Borrower or any Subsidiary of the Borrower shall be deemed to own, subject
to a Lien, any asset that it has acquired or holds subject to the interest of
a vendor or lessor under any conditional sale agreement, Capital Lease or
other title retention lease relating to such asset, or any account receivable
transferred by it with recourse (including any such transfer subject to a
holdback or similar arrangement that effectively imposes the risk of
collectability on the transferor).
"Loan" means any Revolving Loan or any Swing Line Loan.
"Material Acquisition" any (a) acquisition of property or series of
related acquisitions of property that constitutes assets comprising all or
substantially all of an operating unit, division or line of business or (b)
acquisition of or other investment in the Capital Stock of any Subsidiary or
any Person which becomes a Subsidiary or is merged or consolidated with the
Borrower or any of its Subsidiaries, in each case, which involves the payment
of consideration by the Borrower and its Subsidiaries in excess of
U.S.$25,000,000 (or the equivalent in other currencies).
"Material Adverse Effect" means a material adverse effect on (a) the
business, condition (financial or otherwise), operations, performance,
properties or prospects of the Borrower and its Subsidiaries taken as a whole,
(b) the validity or enforceability of this Agreement or any of the Notes or
the rights and remedies of the Administrative Agent or any Lender under this
Agreement or any of the Notes or (c) the ability of the Borrower and/or the
Guarantors to perform their Obligations under this Agreement or any other
Transaction Document.
"Material Debt" means Debt (other than the Loans and the Standby L/C
Exposure) of the Borrower and/or one or more of its Subsidiaries, arising in
one or more related or unrelated transactions, in an aggregate principal
amount outstanding exceeding U.S.$50,000,000 (or the equivalent thereof in
other currencies).
"Material Disposition" means any Disposition of property or series of
related Dispositions of property that yields gross proceeds to the Borrower or
any of its Subsidiaries in excess of U.S.$25,000,000 (or the equivalent in
other currencies).
"Material Subsidiary" means, at any date, (a) each Subsidiary of the
Borrower (if any) (i) the assets of which, together with those of its
Subsidiaries, on a consolidated basis, without duplication, constitute 5% or
more of the consolidated assets of the Borrower and its Subsidiaries as of the
end of the then most recently ended fiscal quarter or (ii) the operating
profit of which, together with that of its Subsidiaries, on a consolidated
basis, without duplication, constitutes 5% or more of the consolidated
operating profit of the Borrower and its Subsidiaries for the then most
recently ended fiscal quarter and (b) each Guarantor.
"Measurement Date" means any of the dates specified in Section 8.13.
"Mexican GAAP" means, generally accepted accounting principles in
Mexico as in effect from time to time, except that for purposes of Section
9.01, Mexican GAAP shall be determined on the basis of such principles in
effect on the date hereof and consistent with those used in the preparation of
the most recent audited financial statements referred to in Section 8.01. In
the event that any change in Mexican GAAP shall occur and such change results
in a change in the method of calculation of financial covenants, standards or
terms in this Agreement, then the Borrower and the Administrative Agent agree
to enter into negotiations in order to amend such provisions of this Agreement
so as to equitably reflect such change in Mexican GAAP with the desired result
that the criteria for evaluating the Borrower's financial condition shall be
the same after such change as if such change had not been made. Until such
time as such an amendment shall have been executed and delivered by the
Borrower, the Administrative Agent and the Required Lenders, all financial
covenants, standards and terms in this Agreement shall continue to be
calculated or construed as if such change in Mexican GAAP had not occurred.
"Mexico" means the United Mexican States.
"Ministry of Finance" means the Ministry of Finance and Public Credit
of Mexico.
"Non-Extending Lender" means, in connection with extending the
Termination Date and the Commitments in accordance with Section 4.02, (a) any
Participating Lender that gives written notice to the Joint Bookrunners and
Administrative Agent that it does not agree to extend its Commitment and (b)
any Participating Lender that fails to give any notice within five Business
Days prior to the effective date of such extension, whether or not such
Participating Lender agrees to such extension, and shall, for purposes of the
effectiveness of this Agreement, also include any lender under the Prior
Agreement that elected not to extend its commitment under the Prior Agreement
to be a Participating Lender hereunder.
"Notice of Borrowing" has the meaning specified in Section 2.01(c).
"Notice of Extension/Conversion" has the meaning specified in Section
2.01(e).
"Obligations" means, (a) with respect to the Borrower, all of its
indebtedness, obligations and liabilities to the Participating Lenders, the
Joint Bookrunners and the Administrative Agent now or in the future existing
under or in connection with the Transaction Documents, whether direct or
indirect, absolute or contingent, due or to become due, and (b) with respect to
each Guarantor, all of its indebtedness, obligations and liabilities to the
Participating Lenders, the Joint Bookrunners and the Administrative Agent now
or in the future existing under or in connection with the Transaction
Documents, in each case whether direct or indirect, absolute or contingent, due
or to become due.
"Obligors" means the Borrower and each Guarantor.
"OECD Bank" shall mean any bank organized under the laws of a member
of the Organization for Economic Cooperation and Development.
"Other Taxes" means any present or future stamp or documentary taxes
or any other excise or property taxes, charges, imposts, duties, fees, or
similar levies which arise from any payment made hereunder or under the Notes
or from the execution, delivery, registration, performance or enforcement of,
or otherwise with respect to, this Agreement or any other Transaction Document
and which are imposed, levied, collected or withheld by any Governmental
Authority.
"Outstanding Borrowings" means the aggregate principal amount of all
Loans outstanding.
"Participant" has the meaning specified in Section 15.06(d).
"Participating Lender" means any Lender, Swing Line Lender or Issuing
Bank, or if used in the plural, all thereof.
"Pension Plan" means a "pension plan", as such term is defined in
Section 3(2) of ERISA, which is subject to Title IV of ERISA (other than a
multiemployer plan as defined in Section 4001(a)(3) of ERISA), and to which any
Credit Party or any of its ERISA Affiliates has any liability.
"Permitted Liens" has the meaning specified in Section 9.02.
"Person" means an individual, partnership, corporation, business
trust, joint stock company, limited liability company, trust, unincorporated
association, joint venture or other business entity or Governmental Authority,
whether or not having a separate legal personality.
"Prime Rate" means the average of the rate of interest publicly
announced by each of the Reference Banks from time to time as its Prime Rate in
New York City, the Prime Rate to change as and when such designated rate
changes. The Prime Rate is not intended to be the lowest rate of interest
charged by the Administrative Agent or any Lender in connection with extensions
of credit to debtors of any class, or generally.
"Prior Agreement" has the meaning specified in the Recitals hereto.
"Process Agent" has the meaning specified in Section 15.12(a).
"Qualified Receivables Transaction" means any transaction or series of
transactions that may be entered into by the Borrower or any Subsidiary
pursuant to which the Borrower or any Subsidiary may sell, convey or otherwise
transfer to a Special Purpose Vehicle (in the case of a transfer by the
Borrower or any other Seller) and any other person (in the case of a transfer
by a Special Purpose Vehicle), or may grant a security interest in, any
Receivables Program Assets (whether now existing or arising in the future);
provided that:
(a) no portion of the indebtedness or any other obligations
(contingent or otherwise) of a Special Purpose Vehicle (i) is guaranteed by
the Borrower or any other Seller or (ii) is recourse to or obligates the
Borrower or any other Seller in any way such that the requirements for off
balance sheet treatment under Financial Accounting Standards Bulletin 140 are
not satisfied; and
(b) the Borrower and the other Sellers do not have any obligation to
maintain or preserve the financial condition of a Special Purpose Vehicle or
cause such entity to achieve certain levels of operating results.
"Receivables" means all rights of the Borrower or any other Seller to
payments (whether constituting accounts, chattel paper, instruments, general
intangibles or otherwise, and including the right to payment of any interest or
finance charges), which rights are identified in the accounting records of the
Borrower or such Seller as accounts receivable.
"Receivables Documents" means (a) a receivables purchase agreement,
pooling and servicing agreement, credit agreement, agreements to acquire
undivided interests or other agreement to transfer, or create a security
interest in, Receivables Program Assets, in each case as amended, modified,
supplemented or restated and in effect from time to time entered into by the
Borrower, another Seller and/or a Special Purpose Vehicle, and (b) each other
instrument, agreement and other document entered into by the Borrower, any
other Seller or a Special Purpose Vehicle relating to the transactions
contemplated by the items referred to in clause (a) above, in each case as
amended, modified, supplemented or restated and in effect from time to time.
"Receivables Program Assets" means (a) all Receivables which are
described as being transferred by the Borrower, another Seller or a Special
Purpose Vehicle pursuant to the Receivables Documents, (b) all Receivables
Related Assets in respect of such Receivables, and (c) all collections
(including recoveries) and other proceeds of the assets described in the
foregoing clauses.
"Receivables Program Obligations" means (a) notes, trust certificates,
undivided interests, partnership interests or other interests representing the
right to be paid a specified principal amount from the Receivables Program
Assets and (b) related obligations of the Borrower, a Subsidiary of the
Borrower or a Special Purpose Vehicle (including, without limitation, rights in
respect of interest or yield hedging obligations, breach of warranty claims and
expense reimbursement and indemnity provisions).
"Receivables Related Assets" means with respect to any "Receivables"
(i) any rights arising under the documentation governing or relating to such
Receivables (including rights in respect of liens securing such Receivables),
(ii) any proceeds of such Receivables, (iii) other assets which are customarily
transferred or in respect of which security interests are customarily granted
in connection with asset securitization transactions involving accounts
receivable.
"Reference Banks" shall mean three banks in the London interbank
market, initially Barclays Bank PLC, ING Bank N.V. and Citibank, N.A..
"Regulation T, U, or X" means Regulation T, U, or X, respectively, of
the Board of Governors of the Federal Reserve System as from time to time in
effect and any successor to all or a portion thereof.
"Required Lenders" means, at any time, Lenders (other than Defaulting
Lenders) whose Total Exposures, when aggregated, exceed 50% of the Aggregate
Exposure minus the Total Exposure of any Defaulting Lenders at such time.
"Requirement of Law" means, as to any Person, any law, ordinance,
rule, regulation or requirement of any Governmental Authority, in each case
applicable to or binding upon such Person or any of its property or to which
such Person or any of its property is subject.
"Responsible Officer" of any Person means the Chief Financial Officer,
the Corporate Planning and Finance Director, the Finance Director or the
Comptroller of such Person.
"Revolving Loans" has the meaning specified in Section 2.01(a) hereof.
"Seller" means the Borrower and any Subsidiary or other affiliate of
the Borrower (other than a Subsidiary or affiliate that is a Special Purpose
Vehicle) which is a party to a Receivables Document.
"Special Purpose Vehicle" means a trust, partnership or other special
purpose person established by the Borrower and/or its Subsidiaries to implement
a Qualified Receivables Transaction.
"Standby L/C" means (i) a standby letter of credit issued by an
Issuing Bank and substantially in the form of Exhibit G, as such may hereafter
be amended or replaced from time to time pursuant to the terms of this
Agreement, and (ii) any standby letter of credit of an Issuing Bank, issued and
outstanding on the Effective Date pursuant to the terms of the Prior Agreement.
"Standby L/C Exposure" means, with respect to each Issuing Bank, at
any time, the sum of (a) the aggregate undrawn amount at such time of all
outstanding Standby L/Cs of such Issuing Bank plus (b) the aggregate unpaid
amount at such time of all unreimbursed Drawings under all outstanding Standby
L/Cs of such Issuing Bank.
"Standby L/C Facility" means the Standby L/Cs, any Drawing (including
any unreimbursed Drawing), any obligations of the Borrower in respect of the
foregoing and the payments received by the Issuing Banks in respect of any of
the foregoing.
"Standby L/C Request" has the meaning specified in Section 3.01(c).
"Standby L/C Sublimit" means, with respect to each Issuing Bank,
initially US$100,000,000, as such amount as may be reduced or increased in
connection with an extension of the Termination Date and the Commitments in
accordance with Section 3.01(c).
"Subsidiary" means with respect to any Person, any corporation,
partnership, joint venture, limited liability company, trust, estate or other
entity of which (or in which) more than 50% of (a) in the case of a
corporation, the issued and outstanding capital stock having ordinary voting
power to elect a majority of the board of directors of such corporation
(irrespective of whether at the time capital stock of any other class or
classes of such corporation shall or might have voting power upon the
occurrence of any contingency not in the control of such Person), (b) in the
case of a limited liability company, partnership or joint venture, the interest
in the capital or profits of such limited liability company, partnership or
joint venture or (c) in the case of a trust or estate, the beneficial interest
in such trust or estate, is at the time directly or indirectly owned or
controlled by (X) such Person, (Y) such Person and one or more of its other
Subsidiaries or (Z) one or more of such Person's other Subsidiaries. For
purposes of determining whether a trust formed in connection with a Qualified
Receivables Transaction is a Subsidiary, notes, trust certificates, undivided
interests, partnership interests or other interests of the type described in
clause (a) of the definition of Receivables Program Obligations shall be
counted as beneficial interests in such trust.
"Substitute Lender" means a commercial bank or other financial
institution, acceptable to the Borrower, the Participating Lenders and the
Administrative Agent, each in its sole discretion, and approved by the Joint
Bookrunners (including such a bank or financial institution that is already a
Lender hereunder), which assumes all or a portion of the Commitment of a Lender
pursuant to the terms of this Agreement.
"Swing Line Lenders" means Barclays Bank PLC and ING Bank N.V., each
acting in the capacity of Lender of Swing Line Loans hereunder.
"Swing Line Loans" means, collectively, the loans outstanding pursuant
to Section 2.02 from time to time.
"Swing Line Maturity Date" means, with respect to any Swing Line Loan,
the later of (i) the Business Day set forth in the relevant Swing Line Request
as the date upon which such Swing Line Loan matures; provided that such date
shall be no later than the third Business Day following the relevant Borrowing
or (ii) the date to which the Swing Line Loan has been extended pursuant to
Section 2.02(c)(iv).
"Swing Line Request" means a request by the Borrower for a Swing Line
Loan, which shall specify (i) the requested Borrowing Date, (ii) the requested
date of maturity and (iii) the amount of such Swing Line Loan.
"Swing Line Sublimit" means, with respect to each Swing Line Lender
individually, US$50,000,000 and in the aggregate, US$100,000,000.
"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, each 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, such 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
such Lender, such Issuing Bank or 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 or
Administrative Agent's failure to (i) register as a Foreign Financial
Institution with the Ministry of Finance and (ii) be a resident (or have a
principal office which is a resident, if such Lender lends through a branch or
agency) for tax purposes of a jurisdiction with which Mexico has in effect a
treaty for the avoidance of double taxation (but only in respect of those
taxes payable in excess of taxes that would have been payable had such Lender
complied with those conditions).
"Temporary Investments" means, at any date, all amounts that would, in
conformity with Mexican GAAP consistently applied, be set forth opposite the
caption "cash and cash equivalent" ("efectivo y equivalentes de efectivo") or
"temporary investments" ("inversiones temporales") on a consolidated balance
sheet of the Borrower at such date.
"Termination Date" means the date which is the earliest of (a) the
date three years following the Effective Date, or if extended with the written
consent of such Lender, such later date or (b) if no Loans or Standby L/Cs are
outstanding, the date the Commitments are terminated in accordance with this
Agreement.
"Total Exposure" means at any time, as to any Lender, the amount of
its Commitment at such time, or, if the Commitments shall have terminated, it's
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 Revolving Loans and
its pro rata share of the aggregate outstanding Standby L/C Exposure and its
pro rata share of the Swing Line Exposure.
"Transaction Documents" means a collective reference to this Credit
Agreement, the Notes, any Assignment and Assumption Agreement, the Fee Letter,
any Standby L/C, and all other related agreements and documents issued or
delivered hereunder or thereunder or pursuant hereto or thereto.
"United States" means the United States of America, including the
States and the District of Columbia, but excluding its territories and
possessions.
"Up-Front Fee" has the meaning specified in Section 4.03(e).
"Value of Debt Currency Derivatives" means, on any given date, the
aggregate mark-to-market value of Debt Currency Derivatives, expressed as a
positive number (if, on a mark-to-market basis, such aggregate amount reflects
a net amount owed to the Borrower and its subsidiaries) or as a negative number
(if, on a mark-to-market basis, such aggregate amount reflects a net amount
owed by the Borrower and its subsidiaries).
"Welfare Plan" means a "welfare plan", as such term is defined in
Section 3(1) of ERISA.
1.02 Other Definitional Provisions.
(a) The terms "including" and "include" are not limiting and mean
"including but not limited to" and "include but are not limited to".
(b) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement refer to this Agreement as a whole and not
to any particular provision of this Agreement, and Article, Section, paragraph,
Schedule and Exhibit references are to this Agreement unless otherwise
specified.
(c) The meanings given to terms defined herein are equally applicable
to both the singular and plural forms of such terms.
(d) In this Agreement, in the computation of periods of time from a
specified date to a later specified date, the word "from" means "from and
including" and the words "to" and "until" each means "to but excluding".
Periods of days referred to in this Agreement shall be counted in calendar days
unless Business Days or LIBOR Business Days are expressly prescribed.
(e) The captions and headings of this Agreement are for convenience of
reference only and shall not affect the interpretation of this Agreement.
1.03 Accounting Terms and Determinations. All accounting and financing
terms not specifically defined herein shall be construed in accordance with
Mexican GAAP.
ARTICLE II
THE LOAN FACILITIES
2.01 Revolving Loans.
(a) Commitment. During the Commitment Period, subject to the terms and
conditions hereof, each Lender, severally and not jointly with the other
Lenders, agrees to make revolving credit loans in Dollars (the "Revolving
Loans") to the Borrower from time to time in an aggregate principal amount at
any one time outstanding not to exceed such Lender's Commitment for the
purposes hereinafter set forth; provided that (i) with regard to the Lenders
collectively, the aggregate principal amount of Loans outstanding, together
with the Aggregate Standby L/C Exposure, at any one time shall not exceed the
Aggregate Committed Amount, and (ii) with regard to each Lender individually,
the aggregate principal amount of such Lender's Commitment Percentage of all
the Loans outstanding at any time, together with such Lender's Commitment
Percentage of its Standby L/C Exposure, shall not exceed the Commitment of such
Lender. Revolving Loans may consist of Base Rate Loans or LIBOR Loans, or a
combination thereof, as the Borrower may request, and may be repaid, prepaid
and reborrowed in accordance with the provisions hereof; provided that if any
Revolving Loan shall be made on the Effective Date or within three (3) Business
Days thereafter such Revolving Loan may be a LIBOR Loan only if the Borrower
delivers to the Administrative Agent a funding indemnity letter in form and
substance satisfactory to the Administrative Agent.
(b) Loans and Borrowings. Each Revolving Loan shall be made as part of
a Borrowing consisting of Revolving Loans made by the Lenders ratably in
accordance with their Commitment Percentage. The failure of any Lender to make
any Revolving Loan required to be made by it shall not relieve any other Lender
of its obligations hereunder; provided that the Commitments of the Lenders are
several and no Lender shall be responsible for any other Lender's failure to
make Revolving Loans as required.
(c) Revolving Loan Borrowings.
(i) Requests for Borrowings.
(A) To request a Borrowing, the Borrower shall notify the
Administrative Agent of such request by telephone, not later than
12:00 p.m., New York City time, (1) in the case of a request for a
Base Rate Loan, on the business day prior to the day the Borrower
designates therein as the Disbursement Date or (2) in the case of a
request for a LIBOR Loan, on the date that is no less than three LIBOR
Business Days prior to the Disbursement Date. Each such telephonic
Borrowing request shall be irrevocable and shall be confirmed promptly
by hand delivery or facsimile to the Administrative Agent of a written
notice (the "Notice of Borrowing") in the form attached as Exhibit B
approved by the Administrative Agent and signed by the Borrower. Each
such telephonic request and written Notice of Borrowing shall specify
the following information in compliance with this Section 2.01:
(1) that a Revolving Loan is requested;
(2) the requested Disbursement Date, which shall be a
Business Day;
(3) the aggregate principal amount to be borrowed; and
(4) whether the Borrowing shall be composed of Base Rate
Loans, LIBOR Loans, or a combination thereof, and if LIBOR
Loans are requested, the Interest Period(s) therefor.
(B) If the Borrower shall fail to specify in any such Notice
of Borrowing (i) an applicable Interest Period in the case
of a LIBOR Loan, then such notice shall be deemed to be a
request for an Interest Period of one (1) month, or (ii)
the type of Revolving Loan requested, then such notice
shall be deemed to be a request for a LIBOR Loan
hereunder.
(C) Not later than 1:00 p.m. New York City time on the
Business Day on which the Notice of Borrowing is received,
the Administrative Agent shall promptly advise each Lender
of the details thereof and shall advise each Lender of the
amount of such Lender's Revolving Loan to be made as part
of the requested Borrowing.
(ii) Minimum Amounts. Each Revolving Loan shall be in a minimum
aggregate principal amount of $5,000,000, in the case of LIBOR Loans, or
$1,000,000 (or the remaining Committed Amount, if less), in the case of
Base Rate Loans, and integral multiples of $1,000,000 in excess thereof.
(d) Funding of Borrowings. Each Lender shall make each Revolving Loan
to be made by it hereunder on the Disbursement Date by wire transfer of
immediately available funds by 1:00 p.m., New York City time, to the account
held by the Administrative Agent for such purpose most recently designated by
it by notice to the Lenders. The Administrative Agent will make such Loans
available to the Borrower by promptly crediting on the same day the amounts so
received, in like funds, to the account number 36964215 that the Borrower
maintains with Citibank, NA. NY (ABA No. 021000089 Ref: CEMEX) in New York City
(the "Funding Account") or any other account with such bank or any other
financial institution designated by the Borrower in the applicable Notice of
Borrowing. Unless the Administrative Agent shall have received notice from a
Lender, prior to the time of any Borrowing, that such Lender will not make
available to the Administrative Agent such Lender's share of such Borrowing,
the Administrative Agent may, but shall not be required to, assume that such
Lender has made such share available on such date in accordance with Section
2.01(c) and may in its sole discretion, but shall not be required to, in
reliance upon such assumption, make available to the Borrower a corresponding
amount. If any Lender either does not make its share of the applicable
Borrowing available to the Administrative Agent or delays in doing so past 4:00
p.m., New York City time, on the Disbursement Date (such Lender hereinafter
referred to as a "Defaulting Lender"), then the Administrative Agent shall
immediately notify the Borrower of such default. If the Administrative Agent
has, in its sole discretion, made available to the Borrower an amount
corresponding to such Defaulting Lender's share of the Borrowing, then the
Defaulting Lender and the Borrower jointly and severally agree to pay to the
Administrative Agent forthwith on demand such corresponding amount with
interest thereon, on each day from and including the date such amount is made
available to the Borrower to but excluding the date of payment to the
Administrative Agent, at:
(i) in the case of the Defaulting Lender, the
Federal Funds Rate; or
(ii) in the case of the Borrower, the interest rate
applicable to Base Rate Loans.
If, with respect to the immediately preceding sentence, the Borrower pays such
amount to the Administrative Agent, then the Defaulting Lender shall indemnify
and hold harmless the Borrower from and against such amount, and if such
Defaulting Lender pays such amount to the Administrative Agent, then such
amount shall constitute such Defaulting Lender's Loan included in such
Borrowing. If the Administrative Agent, in its discretion, does not make
available to the Borrower an amount corresponding to the Defaulting Lender's
share of the Borrowing then (x) the Defaulting Lender shall indemnify and hold
harmless the Borrower from and against such amount as well as any and all
losses, liabilities (including liabilities for penalties), actions, suits,
judgments, demands, costs, and expenses (including reasonable fees and
disbursements for counsel including allocated cost of internal counsel)
resulting from any failure on the part of the Defaulting Lender to provide, or
from any delay in providing, the Administrative Agent with such Defaulting
Lender's pro rata share of the Borrowing, but no Lender shall be so liable for
any such failure on the part of or caused by any other Lender or the
Administrative Agent or the Borrower, and (y) such share of the applicable
Borrowing that was not made available shall be disregarded for purposes of
calculating the Commitment Fee pursuant to Section 4.03(a) and in the event
such share has not been disregarded for such purposes, any amount paid by the
Borrower in respect of such share shall be reimbursed to the Borrower by the
applicable Defaulting Lender with interest thereon at the Federal Funds Rate
for each day from and including the date such share of the Commitment Fee was
paid by the Borrower to but excluding the date of reimbursement by the
Defaulting Lender. The Administrative Agent, upon notice by the Borrower that
such reimbursement is due from the applicable Defaulting Lender, shall notify
such Defaulting Lender of the amount of the reimbursement due, including
interest thereon, and shall forward such amount to the Borrower upon receipt
from the Defaulting Lender. The Administrative Agent shall not, however, be
liable to the Borrower for any failure by any Defaulting Lender to reimburse
the Borrower for any amounts in respect of such Commitment Fee.
(e) Extension and Conversion. The Borrower shall have the option, on
any Business Day, to extend existing Revolving Loans into a subsequent
permissible Interest Period or to convert Revolving Loans into Revolving Loans
of another interest rate type; provided, however, that (i) except as provided
in Section 4.10, LIBOR Loans may be converted into Base Rate Loans only on the
last day of the Interest Period applicable thereto unless the Borrower agrees
to pay all Funding Losses, (ii) LIBOR Loans may be extended, and Base Rate
Loans may be converted into LIBOR Loans, only if the conditions in Section 5.02
have been satisfied, (iii) Loans extended as, or converted into, LIBOR Loans
shall be subject to the terms of the definition of "Interest Period" set forth
in Section 1.01 and shall be in such minimum amounts as provided in Section
2.01(c)(ii), and (iv) any request for extension or conversion of a LIBOR Loan
that shall fail to specify an Interest Period shall be deemed to be a request
for an Interest Period of one month. Each such extension or conversion shall be
effected by the Borrower by giving a written notice (or telephone notice
promptly confirmed in writing) (a "Notice of Extension/Conversion") to the
Administrative Agent prior to 10:00 a.m., New York City time, on the LIBOR
Business Day of, in the case of the conversion of a LIBOR Loan into a Base Rate
Loan, and on the third LIBOR Business Day prior to, in the case of the
extension of a LIBOR Loan as, or conversion of a Base Rate Loan into, a LIBOR
Loan, the date of the proposed extension or conversion, substantially in the
form of Exhibit C hereto, specifying (A) the date of the proposed extension or
conversion, (B) the Loans to be so extended or converted, (C) the types of
Revolving Loans into which such Loans are to be converted, and, if appropriate,
(D) the applicable Interest Periods with respect thereto. Each Notice of
Extension/Conversion shall be irrevocable and shall constitute a representation
and warranty by the Borrower of the matters specified in Sections 5.02(a)
through (e). So long as there is no Default or Event of Default, in the event
the Borrower does not request extension or conversion of any LIBOR Loan in
accordance with this Section, or any such conversion or extension is not
required by this Section, then such LIBOR Loan shall be continued as a Base
Rate Loan at the end of each Interest Period applicable thereto, until the
Borrower selects an alternate Interest Period or converts such Loans to LIBOR
Loans. It being hereby understood and agreed that such failure by the Borrower
to request such extension or conversion resulting in the automatic conversion
of a LIBOR Loan into a Base Rate Loan shall also constitute a representation
and warranty by the Borrower of the matters specified in Sections 5.02(a)
through (e). In the event any LIBOR Loans are not permitted to be converted
into another LIBOR Loan hereunder, such LIBOR Loans shall automatically be
converted to Base Rate Loans at the end of the applicable Interest Period with
respect thereto. The Administrative Agent shall give each Lender notice as
promptly as practicable of any such proposed extension or conversion affecting
any Loan.
(f) Repayment. The principal amount of all Revolving Loans shall be
due and payable in full on the Termination Date. (g) Revolving Notes. Upon the
request of any Lender, such Lender's Commitment Percentage of the Revolving
Loans shall be evidenced by a duly executed revolving note in favor of such
Lender in the form of Exhibit A attached hereto.
(h) Maximum Number of LIBOR Loans. The Borrower will be limited to a
maximum number of ten (10) LIBOR Loans outstanding at any time. For purposes
hereof, LIBOR Loans with separate or different Interest Periods will be
considered as separate LIBOR Loans even if their Interest Periods expire on the
same date.
(i) Notice. The Administrative Agent shall promptly advise each Lender
of any change in Commitment Percentages made pursuant to Section 4.02. 2.02
Swing Line Loans.
(a) Swing Line Loans Commitments. During the Commitment Period,
subject to the terms and conditions hereof, each Swing Line Lender hereby
agrees to make Swing Line Loans to the Borrower in the aggregate amount up to
but not exceeding the Swing Line Sublimit; provided, after giving effect to
the making of any Swing Line Loan, in no event shall the aggregate amount of
the Loans outstanding plus the aggregate amount of the Standby L/C Exposure
exceed the Aggregate Committed Amount for the facility then in effect. Amounts
borrowed pursuant to this Section 2.02 may be repaid, prepaid and reborrowed
during the Commitment Period. Each Swing Line Lender's commitment to make
Swing Line Loans shall expire on the Termination Date and all Swing Line Loans
and all other amounts owed hereunder with respect to the Swing Line Loans and
the Revolving Commitments shall be paid in full no later than such date.
Subject to Section 2.02(c)(iv), each Swing Line Loan shall mature on the Swing
Line Maturity Date.
(b) Loans and Borrowings. Each Swing Line Loan shall be made as
part of a Borrowing consisting of Swing Line Loans made by the Swing Line
Lenders on a pro rata basis. The failure of any Swing Line Lender to make any
Swing Line Loan required to be made by it shall not relieve any other Swing Line
Lender of its obligations hereunder; provided that the Commitments of the Swing
Line Lenders are several and no Swing Line Lender shall be responsible for any
other Swing Line Lender's failure to make Swing Line Loans as required.
(c) Borrowing Mechanics for Swing Line Loans.
(i) Swing Line Loans shall be made in an aggregate minimum
amount of $5,000,000 and integral multiples of $1,000,000 in excess of
that amount.
(ii) Whenever the Borrower desires that the Swing Line
Lenders make a Swing Line Loan, the Borrower shall deliver to
Administrative Agent, with a copy to each Swing Line Lender, a Swing
Line Request no later than 11:00 a.m. (New York City time) on the
proposed Disbursement Date. With respect to any Borrowing Date, the
Borrower may deliver only a single Swing Line Request to the
Administrative Agent. Any Swing Line Request, once delivered to the
Administrative Agent in accordance with this Agreement, shall be
irrevocable.
(iii) Each Swing Line Lender shall make its pro rata share
of the amount of the requested Swing Line Loan available to the
Administrative Agent by no later than 2:00 p.m. (New York City time)
on the applicable Disbursement Date by wire transfer of same day
funds in Dollars, at the account held by the Administrative Agent
for such purpose most recently designated by it by notice to the
Swing Line Lenders. Except as provided herein, upon satisfaction or
waiver by the Swing Line Lenders of the conditions precedent
specified herein, the Administrative Agent shall make the proceeds
of such Swing Line Loans available to the Borrower on the applicable
Disbursement Date by causing an amount of same day funds in Dollars
equal to the proceeds of all such Swing Line Loans received by
Administrative Agent from each Swing Line Lender to be credited to
the account of the Borrower at the Administrative Agent's Payment
Office, or to such other account as may be designated in writing to
Administrative Agent by the Borrower.
(iv) The Borrower shall have the option, on any Business Day,
to extend an existing Swing Line Loan for a subsequent three Business
Day period; provided, however, that in no event may a Swing Line Loan
be extended for more that two consecutive three Business Day periods.
Each such extension shall be effected by the Borrower by giving a
written notice of such extension (or telephone notice promptly
confirmed in writing) to the Administrative Agent prior to 10:00 a.m.,
New York City time, on the Business Day of such extension.
(d) Repayment and Participations.
(i) Swing Line Loans shall be repaid, together with all
accrued and unpaid interest thereon on the earlier to occur of (i) the
Swing Line Maturity date and (ii) the Commitment Termination Date.
(ii) With respect to any Swing Line Loans which have not been
paid by the Borrower when due, each Swing Line Lender may at any time
in its sole and absolute discretion, deliver to the Administrative
Agent (with a copy to the Borrower), no later than 10:00 a.m. (New
York City time) at least one (1) Business Day in advance of the
proposed Disbursement Date, a notice (which shall be deemed to be a
Notice of Borrowing given by the Borrower) requesting that the Lenders
make Revolving Loans that are Base Rate Loans to the Borrower, or its
designee, on such Disbursement Date in an amount equal to the
aggregate amount of such Swing Line Loans (the "Refunded Swing Line
Loans") outstanding on the date a Swing Line Lender gives such Notice
requesting that Lenders make Revolving Loans. For purposes of this
Section 2.02, the Borrower agrees that such Base Rate Loan to be made
by the Lenders pursuant to the Notice of Borrowing shall be made to
the accounts of each of the Swing Line Lenders, as Borrower's
designee, on a pro rata basis. Anything contained in this Agreement to
the contrary notwithstanding, (1) the proceeds of such Revolving Loans
made by the Lenders other than the Lenders that are also Swing Line
Lenders shall be immediately delivered by the Administrative Agent to
each Swing Line Lender, as Borrower's designee, on a pro rata basis
and applied to repay a corresponding portion of the Refunded Swing
Line Loans and (2) on the day such Revolving Loans are made, each
Swing Line Lender's pro rata share of the Refunded Swing Line Loans
shall be deemed to be paid by such Swing Line Lender with the proceeds
of a Revolving Loan deemed to be made by such Swing Line Lender to the
Borrower, or its designee, and such portion of the Swing Line Loans
deemed to be so paid shall no longer be outstanding as Swing Line
Loans and shall no longer be due under any Swing Line Note of such
Swing Line Lender but shall instead constitute part of such Swing Line
Lender's outstanding Revolving Loans to the Borrower and shall be due
under the revolving loan note, if any, issued by the Borrower to such
Swing Line Lender in its capacity as Lender. The Borrower hereby
authorizes the Administrative Agent and each Swing Line Lender to
charge the Borrower's accounts with the Administrative Agent and each
Swing Line Lender (up to the amount available in each such account) in
order to immediately pay each Swing Line Lender the amount of the
Refunded Swing Line Loans to the extent the proceeds of such Revolving
Loans made by the Lenders, including the Revolving Loan deemed to be
made by such Swing Line Lender, are not sufficient to repay in full
the Refunded Swing Line Loans. If any portion of any such amount paid
(or deemed to be paid) to any Swing Line Lender should be recovered by
or on behalf of the Borrower from such Swing Line Lender in
bankruptcy, by assignment for the benefit of creditors or otherwise,
the loss of the amount so recovered shall be ratably shared among all
Lenders in the manner contemplated by Section 4.13.
(iii) If for any reason Revolving Loans are not made pursuant
to Section 2.01(d) in an amount sufficient to repay any amounts owed
to such Swing Line Lenders in respect of any outstanding Swing Line
Loans on or before the third (3rd) Business Day after demand is made
for payment thereof by such Swing Line Lender, each Lender holding a
Commitment shall be deemed to, and hereby agrees to, have purchased a
participation in such outstanding Swing Line Loans, and in an amount
equal to its pro rata share of the applicable unpaid amount together
with accrued interest thereon. Upon one (1) Business Day's notice from
any Swing Line Lender, each Lender holding a Commitment shall deliver
to each Swing Line Lender an amount equal to its respective
participation in the applicable unpaid amount in same day funds at the
domestic office of such Swing Line Lender. In order to evidence such
participation, each Lender holding a Revolving Commitment agrees to
enter into a participation agreement at the request of such Swing Line
Lender in form and substance reasonably satisfactory to such Swing
Line Lender. In the event any Lender holding a Revolving Commitment
fails to make available to any Swing Line Lender the amount of such
Lender's participation as provided in this paragraph, each Swing Line
Lender shall be entitled to recover such amount on demand from such
Lender together with interest thereon for three Business Days at the
rate customarily used by such Swing Line Lender for the correction of
errors among banks and thereafter at the Base Rate, as applicable.
(iv) Notwithstanding anything contained herein to the
contrary, (1) each Lender's obligation to make Revolving Loans for the
purpose of repaying any Refunded Swing Line Loans pursuant to the
second preceding paragraph and each Lender's obligation to purchase a
participation in any unpaid Swing Line Loans pursuant to the
immediately preceding paragraph shall be absolute and unconditional
and shall not be affected by any circumstance, including without
limitation (A) any set-off, counterclaim, recoupment, defense or other
right which such Lender may have against any Swing Line Lender, any
Credit Party or any other Person for any reason whatsoever; (B) the
occurrence or continuation of a Default or Event of Default; (C) any
adverse change in the business, operations, properties, assets,
condition (financial or otherwise) or prospects of any Credit Party;
(D) any breach of this Agreement or any other Credit Document by any
party thereto; or (E) any other circumstance, happening or event
whatsoever, whether or not similar to any of the foregoing; provided,
that such obligations of each Lender are subject to the condition that
each Swing Line Lender believed in good faith that all conditions
under Section 5.02 to the making of the applicable Refunded Swing Line
Loans or other unpaid Swing Line Loans, were satisfied at the time
such Refunded Swing Line Loans or unpaid Swing Line Loans were made,
or the satisfaction of any such condition not satisfied had been
waived by Requisite Lenders prior to or at the time such Refunded
Swing Line Loans or other unpaid Swing Line Loans were made; and (2)
no Swing Line Lender shall be obligated to make any Swing Line Loans
(A) if it has elected not to do so after the occurrence and during the
continuation of a Default or Event of Default or (B) at a time when a
Funding Default exists unless such Swing Line Lender has entered into
arrangements satisfactory to it and the Borrower to eliminate each
such Swing Line Lender's risk with respect to the Defaulting Lender's
participation in such Swing Ling Loan, including by cash
collateralizing such Defaulting Lender's pro rata share of the
outstanding Swing Line Loans.
2.03 Interest.
(a) Base Rate Loans. Revolving Loans constituting each Base Rate
Borrowing shall bear interest at a rate per annum equal to the Base Rate plus
the Applicable Margin.
(b) LIBOR Rate Loans. Revolving Loans constituting each LIBOR Rate
Borrowing shall bear interest at a rate per annum equal to the LIBOR Rate for
the Interest Period for such Borrowing plus the Applicable Margin.
(c) Swing Line Loans. Swing Line Loans shall bear interest at a rate
per annum equal to the Base Rate plus the Applicable Margin.
(d) Default Interest. Notwithstanding the foregoing, if any principal
of, or interest on, any Loan or any fee or other amount payable by the Borrower
hereunder is not paid when due, whether at stated maturity, upon acceleration,
by mandatory prepayment or otherwise, such overdue amount shall bear interest,
after as well as before judgment, at a rate per annum equal to (i) in the case
of overdue principal of any Loan, 2% plus the rate otherwise applicable to such
Loan as provided above or (ii) in the case of any other amount, 2% plus the
rate applicable to Base Rate Loans as provided in Section 2.03(a).
(e) Payment of Interest. Accrued interest on each Loan shall be
payable in arrears on each Interest Payment Date for such Loan and, upon
termination of the Commitments; provided that (i) interest accrued on a Swing
Line Loan shall be payable on the Swing Line Maturity Date, (ii) in the event
of any repayment or prepayment of any Loan (other than a prepayment of a
Revolving Loan that is a Base Rate Loan prior to the Termination Date), accrued
interest on the principal amount repaid or prepaid shall be payable on the date
of such repayment or prepayment and (iii) in the event of any conversion of any
LIBOR Rate Borrowing prior to the end of the Interest Period therefore, accrued
interest on such Borrowing shall be payable on the effective date of such
conversion.
(f) Computation. All interest hereunder shall be computed on the basis
of a year of 360 days, except that interest computed by reference to the Base
Rate at times when the Base Rate is based on the Prime Rate shall be computed
on the basis of a year of 365 days (or 366 days in a leap year), and in each
case shall be payable for the actual number of days elapsed (including the
first day but excluding the last day). The applicable Base Rate or LIBOR Rate
shall be determined by the Administrative Agent, and such determination shall
be conclusive absent manifest error.
ARTICLE III
THE STANDBY L/C FACILITY
3.01 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 5.02, and so
long as no Default or Event of Default shall have occurred and be continuing,
the Borrower may request the Issuing Banks to issue, in support of certain
obligations of the Borrower and any of its Subsidiaries including but not
limited to, 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
each Issuing Bank agrees to issue on the terms set out in this Section 3.01
below, 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 Borrower'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 or may be subject. The Standby L/C shall be
substantially in the form indicated in Exhibit G-1 or G-2, as determined by the
Borrower or in any other form that may be reasonably agreed upon by the
Appropriate Issuing Bank and the Borrower.
(b) The Borrower, the Guarantors and the Participating Lenders hereby
acknowledge and agree that, as of the date hereof, Standby L/Cs issued pursuant
to the Prior Agreement are outstanding, and the outstanding amount of each
issued Standby L/C is set forth on Schedule 3.01 hereto. From and after the
date hereof and upon fulfillment of the conditions specified in Section 5.02
hereof, each such existing letter of credit, as such may have been amended,
shall be deemed and treated for all purposes hereof as a "Standby L/C"
hereunder, and each Lender, without further action on its part, shall be deemed
to have purchased a participation in each such Standby L/C as provided in
Section 3.04 hereof in accordance with its Commitment.
(c) To request the issuance of a Standby L/C, the Borrower shall
deliver notice (a "Standby L/C Request") to the Appropriate 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 Appropriate Issuing Bank shall have
received the request for the issuance of the Standby L/C, if such request is
received by the Appropriate Issuing Bank prior to 11:00 a.m. (New York City
time), or (ii) the Business Day that is two (2) Business Days following the
Business Day on which the Appropriate Issuing Bank shall have received the
request for the issuance of the Standby L/C, if such request is received is by
the Appropriate Issuing Bank after 11:00 a.m. (New York City time) but before
5:00 p.m. (New York City time); provided however, that the Appropriate 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 Appropriate
Issuing Bank shall, subject to the terms and 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 Borrower's request pursuant to this
paragraph (c).
(d) Each Standby L/C shall have a minimum stated amount equal to
U.S.$5,000,000 and shall expire at or prior to the close of business on the
earlier of (i) the date that is 360 days after the date of issuance of such
Standby L/C and (ii) the date that is five Business Days prior to the
Termination Date.
(e) Notwithstanding Clause (d) of this Section 3.01, if the Borrower
is requesting a Standby L/C that is less than the Aggregate Available Standby
L/C Sublimit, but greater than the Available Standby L/C Sublimit for each
Issuing Bank, the Borrower may request a Standby L/C from each Issuing Bank in
an amount up to the Available Standby L/C Sublimit for such Issuing Bank, on a
pro rata basis determined on the basis of each Issuing Bank's Standby L/C
Exposure, after giving effect to the requested Standby L/C, and each Issuing
Bank shall be deemed to be the Appropriate Issuing Bank for the purposes of
Section 3.01(c) hereof.
(f) Each Lender hereby irrevocably authorizes the Issuing Banks 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 Borrower 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.
3.02 Reimbursement Obligations.
(a) The Borrower agrees to reimburse the Issuing Banks for the full
amount of any Drawing paid by an Issuing Bank on a Disbursement Date; provided,
however, that in no event shall such reimbursement be made prior to the time
such Drawing is paid by such Issuing Bank.
(b) If the amount of any Drawing is not reimbursed in full on the
Disbursement Date by the Borrower, then the amount thereof which is not so
reimbursed shall bear interest from (and including), the Disbursement Date
until (but excluding) the date of actual payment thereof at a rate per annum
equal to the Base Rate plus 2.00%, payable on demand.
3.03 Obligations to Reimburse Standby L/C Drawing Absolute.
(a) The obligations of the Borrower to reimburse an Issuing Bank for
any Drawing 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 Borrower 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, any
Participating Lender or any other Person, whether in connection with
this Agreement, any other Transaction Document or any unrelated
transaction;
(iv) any draft, statement or any other document presented under 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 an 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 Banks shall not be responsible to any Person:
(i) for the validity, genuineness or legal effect of any document
submitted to an Issuing Bank by any Person in connection with the
issuance of, or any Drawing under, any Standby L/C; provided, however,
that nothing in this clause (i) shall relieve an Issuing Bank from its
obligations to honor a 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 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 Drawing under such Standby L/C; or (v) for any
consequences arising from causes beyond the control of an Issuing Bank
(including, any acts of any Governmental Authority);
provided, however, that the provisions of this Section 3.03 shall not limit
any right or claim the Borrower may have against an Issuing Bank to the extent
of any direct, as opposed to consequential or special, damages suffered by the
Borrower which the Borrower proves were caused by such 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
Borrower to reimburse such Issuing Bank for all Drawings under Standby L/Cs.
3.04 Participating Interests.
(a) Without further action on the part of the Issuing Banks and the
Lenders, each Lender severally purchases from the Issuing Banks, without
recourse to the Issuing Banks, and the Issuing Banks hereby sell to each such
Lender, an undivided interest, to the extent of such Lender's Commitment
Percentage, in each Standby L/C issued or to be issued hereunder or issued
pursuant to the Prior Agreement, all Drawings, all interest thereon and all
other rights, costs and expenses of the Issuing Banks hereunder and under such
Standby L/C with respect thereto.
(b) As promptly as practicable upon becoming aware that the Borrower
has not reimbursed or will not reimburse the relevant Issuing Bank in full for
a Drawing under any Standby L/C in accordance with Section 3.02(a) or (b) on
any applicable Disbursement Date, such 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 such Issuing Bank, an amount equal to such
Lender's Commitment Percentage of such unreimbursed Drawing. Notwithstanding
clause (ii) of this paragraph (b), if a Lender does not make available to the
Administrative Agent on the applicable Disbursement Date such Lender's
Commitment Percentage of any unreimbursed Drawing, such Lender shall be
required to pay interest to the Administrative Agent for the account of such
the Issuing Bank on its Commitment 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 such Issuing Bank's cost
of funds, the applicable rate of interest shall be such rate as determined by
such 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 such Issuing Bank at a rate per annum
equal to the Federal Funds Rate (or such other rate as may be determined by
such Issuing Bank as set forth herein) plus 2.00%. Upon receipt of any such
funds, the Administrative Agent shall promptly pay such funds to such Issuing
Bank.
(c) If the Administrative Agent receives a Lender's Commitment
Percentage of an unreimbursed 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
(b), such Lender shall be entitled to receive interest on its Commitment
Percentage of such Standby L/C Drawing, as provided in Section 3.04(d)(ii)
below, from the applicable Disbursement Date. (d) The payment obligations of
each Lender to the relevant Issuing Bank as described in this Section 3.04
shall be absolute, irrevocable and unconditional under any and all
circumstances whatsoever and shall not be affected by any circumstance,
including:
(i) any set-off, counterclaim, defense or other right which such
Lender or any other Person may have against the Administrative Agent,
an 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 Borrower;
(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;
(vii) any amendment to or extension of an issued and outstanding
Standby L/C; 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 such Issuing Bank's gross negligence or willful
misconduct.
(e) The relevant Issuing Bank agrees to pay promptly upon receipt to
the Administrative Agent for the account of each Lender (i) first, such
Lender's Commitment Percentage of all amounts received from the Borrower 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 Commitment Percentage of
such Standby L/C Drawing to the Administrative Agent for the account of such
Issuing Bank pursuant to Section 3.04(c) above and (ii) second, such Lender's
Commitment Percentage of any interest received from the Borrower with respect
to any such unreimbursed Standby L/C Drawing, but only to the extent such
Lender has paid in full its Commitment Percentage of such Standby L/C Drawing
to the Administrative Agent for the account of such Issuing Bank pursuant to
Section 3.04(c) above.
(f) If, on account of the bankruptcy, insolvency, concurso mercantil
or governmental intervention (or similar event) of the Borrower, an Issuing
Bank or the Administrative Agent is required at any time (whether before or
after the Termination Date) to return to the Borrower 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 Borrower to the
Administrative Agent for the account of an Issuing Bank (or directly to an
Issuing Bank) in reimbursement of any unreimbursed Drawing and interest
thereon, each Lender shall, on demand of such Issuing Bank or the
Administrative Agent, forthwith return to such Issuing Bank or the
Administrative Agent for the account of such Issuing Bank any amounts
transferred to such Lender by such 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 such Issuing Bank or the Administrative Agent, as the
case may be, to the day such amounts are returned by such Lender to such
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 such Issuing Bank's or the Administrative Agent's cost of funds,
the applicable rate of interest shall be such rate as determined by such
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
such Issuing Bank or the Administrative Agent, as the case may be, at a rate
per annum equal to the Federal Funds Rate plus 2.00%. In any case when an
amount is returned to any Person pursuant to this paragraph (f), the
reimbursement obligation of the Borrower contained in Section 3.02(a) will be
reinstated as of the original date such reimbursement obligation arose.
(g) The Borrower hereby confirms and acknowledges that each Lender
shall have a direct claim against the Borrower for the principal of and
interest on each portion of any unreimbursed Standby L/C Drawing advanced by
such Lender to an Issuing Bank and that each Lender shall to the extent
applicable be entitled to all the rights of the Issuing Bank against the
Borrower (to the extent not exercised by such Issuing Bank) as if such Lender
had funded its Commitment Percentage of the Standby L/C Drawing directly to the
beneficiary of the applicable Standby L/C.
(h) Each 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 Commitment Percentage
of each Standby L/C Drawing, the applicable interest rate and the amounts of
principal and interest paid and payable by the Borrower from time to time
hereunder with respect thereto; provided, however, that the failure by an
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 Borrower 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 the case of any discrepancy between the entries in
an Issuing Bank's books and any Lender's books or the Administrative Agent's
books, an Issuing Bank's books shall be considered correct in the absence of
manifest error.
3.05 Limited Liability of the Issuing Banks. As between an Issuing
Bank on the one hand, and the Borrower on the other, the Borrower 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 of
the Issuing Banks 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 IV
TERMINATION AND REDUCTION OF COMMITMENTS; FEES, TAXES,
PAYMENT PROVISIONS
4.01 Termination or Reduction of Commitments.
(a) Mandatory Termination. Subject to Section 4.02, the Commitments
shall terminate on the Termination Date.
(b) Voluntary Termination. Upon at least five Business Days' notice to
the Administrative Agent, the Joint Bookrunners and the Issuing Banks, but no
sooner than six months after the Effective Date, in which case such termination
may occur at any time upon five Business Days, the Borrower may terminate the
existing Commitments by instructing each beneficiary of a Standby L/C to
surrender such Standby L/C to the relevant Issuing Bank for cancellation; and
provided, further, however, that the existing Commitments may not be terminated
so long as (i) any Standby L/C is outstanding or (ii) any Loan is outstanding
or (iii) any Drawing, interest, fee or expenses remain unpaid. Upon at least
five Business Days prior notice to the Administrative Agent and the Issuing
Banks, the Borrower 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 relevant Issuing Bank for cancellation.
(c) Reduction of Standby L/C. Upon at least five Business Days prior
notice to the Administrative Agent and each Issuing Bank, the Borrower 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 relevant 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) Any reduction of the Commitments shall reduce the Commitment of
each Lender pro rata except as otherwise specified in Section 4.02(e).
(e) No reduction or termination of the Commitments shall in any event
release any Lender from any of its direct or indirect obligations to the
Issuing Banks in respect of (i) any Standby L/Cs issued prior to such
termination or reduction or (ii) any Drawing.
4.02 Extension of Termination Date.
(a) Extension of Termination Date/Reduction of Standby L/C. Upon at
least five Business Days' prior notice to the Administrative Agent and each
Issuing Bank, but no sooner than six months after the Effective Date, the
Borrower may permanently reduce the amount of the Aggregate Standby L/C
Sublimit and the Standby L/C Sublimit for each Issuing Bank by a minimum amount
of U.S.$5,000,000 or any integral multiple of U.S.$1,000,000 in excess thereof;
provided, however, the Standby L/C Sublimit for any Issuing Bank may not be
reduced below the Standby L/C Exposure of such Issuing Bank and any reductions
in the Standby L/C Sublimit for the Issuing Banks must be made on a pro rata
basis. The Borrower may, within 90 days, but not less than 45 days, prior to
each anniversary date of the original Effective Date (each anniversary date
being referred to as an "Anniversary Date"), by notice to the Administrative
Agent, the Issuing Banks and the Lenders, make a written request of the
Participating Lenders to extend the Termination Date for an additional period
of one (1) year. The Administrative Agent will give prompt notice to each of
the Participating Lenders of its receipt of any such request for extension of
the Termination Date. Each Participating Lender shall make a determination not
later than 30 days prior to the then applicable Anniversary Date (the
"Extension Consent Date") as to whether or not it will agree to extend the
Termination Date as requested (such approval of an extension shall be an
"Extension Consent"); provided, however, that failure by any Participating
Lender to make a timely response to the Borrower's request for extension of the
Termination Date shall be deemed to constitute a refusal by such Participating
Lender to an extension of the Termination Date.
(b) Lender Not Consenting. If by any Extension Consent Date the
Borrower and the Administrative Agent have not received an Extension Consent
from any Participating Lender, the Termination Date, as it relates to such
Participating Lender, shall not be extended, the Commitment of such
Participating Lender shall terminate on the Termination Date applicable to it
and any Loans or Standby L/C, as applicable, made by such Participating Lender
and all accrued and unpaid interest thereon shall be due and payable on such
Termination Date. Upon the termination of the Commitment of any such Lender,
unless this Agreement is amended as provided in Sections 4.02(e) or 4.02(f),
the aggregate amount of the Commitments shall be reduced by the amount of such
terminated Commitment, and the Commitment Percentage of each other Lender shall
be adjusted to that percentage obtained by dividing the Commitment of such
Lender by the aggregate amount of the Commitments after giving effect to such
reduction as provided in the definition of "Commitment Percentage".
(c) Other Lenders. No refusal by any one Participating Lender to
consent to any extension of the Termination Date shall affect the extension of
the Termination Date as it may relate to the Commitment and Loans of any
Participating Lender that consents to such extension as provided in Section
4.02(b), and one or more Participating Lenders may consent to the extension of
the Termination Date as it relates to them notwithstanding any refusal by any
other Lenders so to consent; provided that even as to the consenting Lenders,
the Termination Date will be extended only upon consent to such an extension by
the Required Lenders.
(d) Termination of Commitment. If any Participating Lender does not
deliver an Extension Consent as provided in Section 4.02(b) and no Loans or
Standby L/Cs, as applicable are then outstanding, the Borrower may upon at
least three (3) Business Days' prior notice to such Participating Lender and to
the Administrative Agent terminate the Commitment of such Lender. Upon any such
termination, the Commitment Percentage of each other Lender shall be adjusted,
if necessary, to that percentage obtained by dividing the Commitment of such
Lender by the aggregate amount of the Commitments after giving effect to such
termination and any increases in the aggregate amount of the Commitments under
the provisions of Section 4.02(e) or Section 4.02(f).
(e) Increase in Commitment of Other Lender or Lenders. If any Lender
does not deliver an Extension Consent as provided in Section 4.02(b), upon the
expiration of the Commitment of such Lender, or upon its termination as
provided in Section 4.02(d), the Borrower may offer each Lender that has
delivered an Extension Consent as provided in Section 4.02(b) a reasonable
opportunity to increase its Commitment by an amount equal to its pro rata share
(based on its Commitment before giving effect to such increase) of the
Commitment of the Lender that does not deliver an Extension Consent as provided
in Section 4.02(b). After giving such Lenders such an opportunity, the Borrower
may with the approval of the Administrative Agent amend this Agreement to
increase the Commitment of any other Lender or Lenders with the consent of such
Lender or Lenders; provided that such increase does not increase the aggregate
amount of the Commitments to an amount greater than the Aggregate Committed
Amount in effect immediately before such expiration or termination.
(f) Additional Lender or Lenders. If any Lender does not deliver an
Extension Consent as provided in Section 4.02(b), upon the expiration of the
Commitment of such Lender, or upon its termination as provided in Section
4.02(d), the Borrower may with the approval of the Administrative Agent amend
this Agreement as provided herein to add one or more other Lenders (each an
"Additional Commitment Lender") as parties, with such Commitments as may be
agreed to by the Administrative Agent and such other Lender or Lenders;
provided that such additions do not increase the Aggregate Committed Amount to
an amount greater than the aggregate amount of Commitments in effect
immediately before such expiration or termination.
4.03 Fees.
(a) Commitment Fee. The Borrower agrees to pay to the Administrative
Agent, quarterly in arrears commencing on September 30, 2004, for the account
of the Lenders ratably in accordance with their Commitment Percentage a
commitment fee (the "Commitment Fee") at the rate of 40% of the Applicable
Margin per annum for the relevant quarterly period on the Available Commitments
as from time to time in effect]. The Commitment Fee shall accrue from the
Effective Date to the Termination Date and shall be payable in arrears on the
last day in each of March, June, September, and December and on the Termination
Date provided that if any day or the Termination Date is not a Business Day,
then the Commitment Fee shall be payable on the next preceding Business Day.
(b) Standby L/C Fees. The Borrower will pay to each Issuing Bank
Standby L/C documentation fees (the "Standby L/C Fees") in the amounts and at
the times agreed to by the Issuing Banks and the Borrower in the Fee Letter.
(c) Letter of Credit Utilization Fees. A letter of credit utilization
fee, at a rate per annum equal to the Applicable Margin for the relevant
quarterly period from time to time in effect, calculated on a per annum basis
on the daily amount of Aggregate Standby L/C Exposure from time to time,
payable to the Administrative Agent for the account of the Lenders in arrears
on (i) the last day of each calendar quarter, commencing on the first such date
after the Borrowing Date, and (ii) the Termination Date.
(d) Joint Bookrunners Fees. The Borrower will pay to the Joint
Bookrunners, for the sole account of the Joint Bookrunners, the arrangement
fees (the "Joint Bookrunners Fees") and other fees in the amounts and at the
times agreed to by the Joint Bookrunners and the Borrower in the Fee Letter.
(e) Up-Front Fee. The Borrower will pay to the Administrative Agent,
for the account of the Lenders, an up-front fee (the "Up-front Fee") in
accordance with the Summary of Terms and Conditions agreed to by the Borrower
and the Joint Bookrunners on May 10, 2004.
4.04 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.
4.05 Taxes.
(a) Any and all payments by the Borrower or the Guarantor, as the case
may be, to any Lender, any Issuing Bank, the Joint Bookrunners or the
Administrative Agent under this Agreement and the other Transaction Documents
shall be made free and clear of, and without deduction or withholding for or on
account of, any Taxes. In addition, the Borrower shall promptly pay all Other
Taxes.
(b) Except as otherwise provided in Section 4.05(c), the Borrower and
the Guarantors agree to indemnify and hold harmless each Lender, each Issuing
Bank and the Administrative Agent for the full amount of Taxes or Other Taxes
excluding in each case United States backup withholding Taxes imposed because
of payee underreporting (including any Taxes or Other Taxes imposed by any
jurisdiction on amounts payable under this Section 4.05) paid by or assessed
against any Lender, any 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, additions to tax or expenses 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,
any Issuing Bank or the Administrative Agent makes written demand therefore,
setting forth in reasonable detail the basis and calculation of such amounts
(such written demand shall be presumed correct, absent significant error).
(c) If the Borrower or the Guarantors, as the case may be, shall be
required by law to deduct or withhold any Taxes or Other Taxes from or in
respect of any sum payable hereunder to any Lender, any 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 4.05, but excluding in each case United States backup
withholding Taxes imposed because of payee underreporting) such
Lender, such 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 Borrower shall not be
required to increase any amounts payable to such Lender, Issuing Bank
or the Administrative Agent to the extent such increased amounts would
be in excess of the increased 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 Section
4.05(f);
(ii) the Borrower or the Guarantors, as the case may be, shall
make such deductions and withholdings; and
(iii) the Borrower or the Guarantors, as the case may be, shall
pay the full amount deducted or withheld to the relevant taxing
authority or other authority in accordance with applicable law.
(d) Within 30 days after the date of any payment by the Borrower or
the Guarantors, as the case may be, of Taxes or Other Taxes, the Borrower or
the Guarantors, as the case may be, shall furnish to the Administrative Agent
the original or a certified copy of a receipt evidencing payment thereof or
other evidence of payment reasonably satisfactory to the Administrative Agent.
(e) If the Borrower or the Guarantors, as the case may be, is required
to pay additional amounts to any Lender or any Issuing Bank pursuant to Section
4.05(c) other than amounts related to the withholding of Mexican tax at the
rate applicable to interest payments received by foreign financial institutions
registered with the Secretaria de Hacienda y Credito Publico as a Foreign
Financial Institution for the purposes of Article 195, Section I of the Mexican
Income Tax law, then such Lender or such 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 or reduce the obligation of the
Borrower or the Guarantor, as the case may be, to pay any such additional
amounts which may thereafter accrue or to indemnify such Lender or the Issuing
Bank in the future, if such change in the reasonable judgment of such Lender or
such Issuing Bank is not otherwise disadvantageous to such Lender or such
Issuing Bank.
(f) Each Issuing Bank, each Lender and the Administrative Agent shall,
from time to time at the request of the Borrower or the Administrative Agent
(as the case may be), promptly furnish to the Borrower and the Administrative
Agent (as the case may be), such forms, documents or other information (which
shall be accurate and complete) as may be reasonably required to establish any
available exemption from, or reduction in the amount of, applicable Taxes;
provided, however, that none of any Issuing Bank, any Lender or the
Administrative Agent shall be obliged to disclose information regarding its tax
affairs or computations to the Borrower in connection with this paragraph (f).
Each of the Borrower and the Administrative Agent shall be entitled to rely on
the accuracy of any such forms, documents or other information furnished to it
by any Person and shall have no obligation to make any additional payment or
indemnify any Person for any Taxes, interest or penalties that would not have
became payable by such Person had such documentation been accurate.
(g) If any 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 Borrower or a Guarantor, as the case may be,
pursuant to Section 4.05(b) and such refund or credit is directly and clearly
attributable to this Agreement, it shall notify the Borrower or such Guarantor,
as the case may be, of the amount of such refund or credit and shall return to
the Borrower or such Guarantor, as the case may be, such refund or the benefit
of such credit; provided, however, that (A) such 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 Borrower
or the Guarantors with any information on or justification for the arrangement
of its tax affairs or otherwise disclose to the Borrower, the Guarantors or any
other Person any information that it considers to be proprietary or
confidential, and (B) the Borrower or such Guarantor, as the case may be, upon
the request of such 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 such Issuing Bank, the Administrative Agent or such Lender, as the
case may be, if such 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
Borrower or such Guarantor, as the case may be, is paid such amount by such
Issuing Bank, the Administrative Agent or such Lender, as the case may be.
4.06 General Provisions as to Payments.
(a) All payments to be made by the Borrower or the Guarantors, as the
case may be, shall be made without set-off, counterclaim or other defense.
Except as otherwise expressly provided herein, all payments by the Borrower
shall be made to the Administrative Agent for the account of the Lenders, the
Swing Line Lenders or the Issuing Banks, 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 a Standby L/C), on the dates specified herein but in no event prior to
the payment by the relevant Issuing Bank of such Drawing, as the case may be,
to be reimbursed. The Administrative Agent will promptly distribute to the
relevant Issuing Bank or to each Lender its Commitment Percentage (or other
applicable share as expressly provided herein) of each payment in like funds
as received. Any payment received by the Administrative Agent later than 3:30
p.m. (New York City time) shall be deemed to have been received on the
following Business Day and any applicable interest or fee shall continue to
accrue until such following Business Day.
(b) Except and to the extent otherwise specifically provided herein,
whenever any payment to be made hereunder is due on a day which is not a
Business Day, the date for payment thereof shall be extended to the immediately
following Business Day and, if interest is stated to be payable in respect
thereof, interest shall continue to accrue to such immediately following
Business Day.
(c) Unless the Administrative Agent shall have received notice from
the Borrower prior to the date on which any payment is due to an Issuing Bank
or the Lenders hereunder that the Borrower will not make such payment in full,
the Administrative Agent may assume that the Borrower has made such payment in
full to the Administrative Agent on such date and the Administrative Agent may
(but shall not be so required), in reliance upon such assumption, cause to be
distributed to the relevant Issuing Bank or each Lender, as the case may be, on
such due date an amount equal to the amount then due to such Issuing Bank or
such Lender. If and to the extent that the Borrower shall not have made such
payment, the relevant Issuing Bank or each Lender, as the case may be, shall
repay to the Administrative Agent forthwith on demand such amount distributed
to such Issuing Bank or such Lender together with accrued interest thereon, for
each day from the date such amount is distributed to such Issuing Bank or such
Lender until the date such 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 relevant Issuing Bank or any Lender for more
than five Business Days after the Administrative Agent has made a demand for
such amount, such Issuing Bank or such Lender shall, commencing on the day next
following such fifth Business Day, pay interest to the Administrative Agent at
a rate per annum equal to the Federal Funds Rate plus 1%, and, provided
further, that if any such amount remains unpaid by the relevant Issuing Bank or
any Lender for more than ten Business Days, such 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 2.00%.
4.07 Funding Losses. If the Borrower makes any payment of
principal with respect to any LIBOR Loan on any day other than the last day of
the Interest Period applicable thereto, or if the Borrower fails to borrow any
LIBOR Loans after notice has been given to any Lender in accordance with
Section 2.01 or to convert or continue a Loan as a LIBOR Loan after a Notice
of Extension/Conversion has been delivered by the Borrower pursuant to Section
2.01(e), or if the Borrower fails to prepay any LIBOR Loans after notice has
been given pursuant to Section 2.01, the Borrower shall reimburse each Lender
within 15 days after demand for any resulting loss or expense incurred by it,
including any loss incurred in obtaining, liquidating or reemploying deposits
bearing interest by reference to LIBOR from third parties ("Funding Losses"),
provided such Lender shall have delivered to the Borrower a certificate
setting forth in reasonable detail the computations for the amount of such
loss or expense, which certificate shall be conclusive in the absence of
manifest error.
4.08 Basis for Determining Interest Rate Inadequate or
Unfair. If on or prior to the first day of any Interest Period for any LIBOR
Loan:
(a) the Administrative Agent determines that by reason of
circumstances affecting the London interbank market, reasonably adequate means
do not exist for ascertaining LIBOR applicable to such Interest Period or that
deposits in Dollars (in the applicable amounts) are not being offered in the
London interbank market for such Interest Period, or
(b) the Required Lenders advise the Administrative Agent that LIBOR
as determined by the Administrative Agent will not adequately and fairly
reflect the cost to any Lender of making or maintaining its Loan for such
Interest Period,
(c) then the Administrative Agent shall forthwith give notice thereof
to the Borrower and the Lenders. In the event of any such determination or
advise, until the Administrative Agent shall have notified the Borrower and
the Lenders that the circumstances giving rise to such notice no longer exist,
any request by the Borrower for a Loan of the affected amount or Interest
Period, or a conversion to or continuation of a Loan of the affected amount or
Interest Period shall be deemed rescinded and such request shall instead be
considered a request for a Base Rate Loan. Each determination by the
Administrative Agent hereunder shall be conclusive absent manifest error.
4.09 Capital Adequacy.
If any Participating Lender has determined, after the date hereof,
that the adoption or the becoming effective of, or any change in, or any change
by any Governmental Authority, central bank, or comparable agency charged with
the interpretation or administration thereof in the interpretation or
administration of, any applicable law, rule, or regulation regarding capital
adequacy, or compliance by such Participating Lender with any request or
directive regarding capital adequacy (whether or not having the force of law)
of any such authority, central bank, or comparable agency, has or would have
the effect of increasing such Participating Lender's cost of maintaining its
Commitment or Standby L/C, as the case may be, or making or maintaining any
Loans or any Standby L/C, as the case may be, or reducing the rate of return on
such Participating Lender's capital or assets as a consequence of its
commitments or obligations hereunder to a level below that which such
Participating Lender could have achieved but for such adoption, effectiveness,
change, or compliance (taking into consideration such Lender's policies with
respect to capital adequacy), then, upon notice from such Participating Lender
to the Borrower, the Borrower shall be obligated to pay to such Participating
Lender such additional amount or amounts as will compensate such Participating
Lender for such increased cost or reduction in amount received. Each
determination by any such Lender of amounts owing under this Section shall,
absent manifest error, be conclusive and binding on the parties hereto. The
relevant Lender will, upon request, provide a certificate in reasonable detail
as to the amount of such increased cost or reduction in amount received and
method of calculation.
Upon any Participating Lender's making a claim for compensation under
this Section 4.09, (i) such Participating Lender shall use commercially
reasonable efforts (consistent with legal and regulatory restrictions) to
change the jurisdiction of its lending office or assign its rights and
obligations hereunder to another of its offices, branches or affiliates so as
to eliminate or reduce any such additional payment by the Borrower which may
thereafter accrue, if such change is not otherwise disadvantageous to such
Lender, and (ii) the Borrower may replace such Lender in accordance with
Section 4.12.
4.10 Illegality.
(a) Notwithstanding any other provision herein, if the adoption of or
any change in any Requirement of Law or in the interpretation or application
thereof occurring after the Effective Date shall make it unlawful for any
Lender to make or maintain any Commitment or any Loan as contemplated by this
Credit Agreement, then such Lender, together with Lenders giving notice under
Section 4.08(c), shall be an "Affected Lender" and by written notice to the
Borrower and to the Administrative Agent:
(i) such Lender may declare that such Loans will not thereafter
(for the duration of such unlawfulness or impossibility) be made by
such Lender hereunder, whereupon, in the case of any request for a
LIBOR Loan, as to such Lender, such request shall only be deemed a
request for a Base Rate Loan (unless it should also be illegal for the
Affected Lender to provide a Base Rate Loan, in which case such Loan
shall bear interest at a commensurate rate to be agreed upon by the
Administrative Agent and the Affected Lender, and so long as no Event
of Default shall have occurred and be continuing, the Borrower),
unless such declaration shall be subsequently withdrawn;
(ii) such Lender may require that all outstanding LIBOR Loans,
made by it be converted to Base Rate Loans, in which event all such
LIBOR Loans shall be automatically converted to Base Rate Loans as of
the effective date of such notice as provided in paragraph (b) below;
and
(iii) if it is also illegal for the Affected Lender to make Base
Rate Loans, such Lender may declare all amounts owed to them by the
Borrower to the extent of such illegality to be due and payable;
provided, however, the Borrower has the right, with the consent of the
Administrative Agent to find an additional Lender to purchase the
Affected Lenders' rights and obligations.
In the event any Lender shall exercise its rights under (i) or (ii) above with
respect to any Loans, all payments and prepayments of principal that would
otherwise have been applied to repay the LIBOR Loans that would have been made
by such Lender or the converted LIBOR Loans of such Lender shall instead be
applied to repay the Base Rate Loans made by such Lender in lieu of, or
resulting from the conversion, of such LIBOR Loans.
(b) For purposes of this Section 4.10, a notice to the Borrower by any
Lender shall be effective as to each such Loan, if lawful, on the last day of
the Interest Period currently applicable to such Loan; in all other cases such
notice shall be effective on the date of receipt by the Borrower.
4.11 Requirements of Law.
If, after the date hereof, the adoption of or any change in any
Requirement of Law or in the interpretation or application thereof applicable
to any Lender, or compliance by any Lender with any request or directive
(whether or not having the force of law) from any central bank or other
Governmental Authority, in each case made subsequent to the Effective Date (or,
if later, the date on which such Lender becomes a Lender):
(a) shall impose, modify, or hold applicable any reserve, special
deposit, compulsory loan, or similar requirement against assets held by,
deposits or other liabilities in or for the account of, advances, loans, or
other extensions of credit by, or any other acquisition of funds by, any office
of such Lender that is not otherwise included in the determination of the LIBOR
hereunder; or
(b) shall impose on such Lender any other condition (excluding any tax
of any kind whatsoever);
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount that such Lender reasonably deems to be material, of making,
converting into, continuing, or maintaining LIBOR Loans or to reduce any
amount receivable hereunder in respect thereof, then, in any such case, upon
notice delivered to the Borrower from such Lender, through the Administrative
Agent, in accordance herewith, the Borrower shall be obligated to promptly pay
such Lender, upon its demand, any additional amounts necessary to compensate
such Lender for such increased cost or reduced amount receivable; provided
that, in any such case, the Borrower may elect to convert the LIBOR Loans made
by such Lender hereunder to Base Rate Loans by giving the Administrative Agent
at least one (1) Business Day's notice of such election. If any Lender becomes
entitled to claim any additional amounts pursuant to this Section, it shall
provide notice thereof to the Borrower, promptly upon occurrence of such
event, but in any case within three (3) days from the date of such event,
through the Administrative Agent, certifying (x) that one of the events
described in this paragraph (a) has occurred and describing in reasonable
detail the nature of such event, (y) as to the increased cost or reduced
amount resulting from such event and (z) as to the additional amount demanded
by such Lender and a reasonably detailed explanation of the calculation
thereof. Such a certificate as to any additional amounts payable pursuant to
this subsection submitted by such Lender, through the Administrative Agent, to
the Borrower shall be conclusive and binding on the parties hereto in the
absence of manifest error. This covenant shall survive the termination of this
Agreement and the payment of the Loans and all other amounts payable
hereunder. If any Lender becomes aware of a proposed change in any Requirement
of Law that would entitle it to claim any additional amounts pursuant to this
Section it shall promptly, upon the Lender becoming aware of such event,
provide notice to the Borrower through the Administrative Agent.
4.12 Substitute Lenders. If any Lender has demanded compensation
pursuant to Sections 4.09, 4.10 or to 4.11, and such Lender does not waive its
right to future additional compensation pursuant to Section, 4.09, 4.10 or
4.11, the Borrower shall have the right (i) to replace such Lender with a
Substitute Lender or Substitute Lenders that shall succeed to the rights of
such Lender under this Agreement upon execution of an Assignment and Assumption
Agreement and payment by the Borrower of the related processing fee of
U.S.$3,500 to the Administrative Agent and a fee of U.S.$1,500 payable directly
to each Issuing Bank; or (ii) to remove such Lender, reduce the Commitments by
the amount of the Commitment of such Lender, and adjust the Commitment
Percentage of each Lender such that the percentage of each other Lender shall
be increased to equal the percentage equivalent of a fraction. The numerator of
which is the Commitment of such other Lender and the denominator of which is
the Commitments of the Lenders minus the Commitments of the Lender who demanded
payment pursuant to Sections 4.09, 4.10 or 4.11; provided, however, that such
Lender shall not be replaced or removed hereunder until such Lender has been
repaid in full all amounts owed to it pursuant to this Agreement and the other
Transaction Documents (including Sections 4.09) unless any such amount is being
contested by the Borrower in good faith.
4.13 Sharing of Payments, Etc.
(a) If, other than as expressly provided elsewhere herein, any Lender
shall obtain on account of the Obligations owing to it any payment (whether
voluntary, involuntary, through the exercise of any right of set-off, or
otherwise) in excess of its Commitment Percentage of payments on account of the
Obligations obtained by all the Participating Lenders (an "excess payment"),
such Lender shall forthwith (i) notify the Administrative Agent of such fact,
and (ii) purchase from the other Lenders such participations in such
Obligations owing to them as shall be necessary to cause such purchasing Lender
to share the excess payment ratably with each of them; provided, however, that
if all or any portion of such excess payment is thereafter recovered from the
purchasing Lender, such purchase shall to that extent be rescinded and each
other Lender shall repay to the purchasing Lender the purchase price paid
therefor, together with an amount equal to such paying Lender's Commitment
Percentage (according to the proportion of (A) the amount of such paying
Lender's required repayment to (B) the total amount so recovered from the
purchasing Lender) of any interest or other amount paid or payable by the
purchasing Lender in respect of the total amount so recovered. The
Administrative Agent will keep records (which shall be conclusive and binding
in the absence of demonstrable error) of participations purchased pursuant to
this Section 4.13 and will in each case notify the Lenders following any such
purchases.
(b) If any Lender shall commence any action or proceeding in any court
to enforce its rights hereunder after consultation with the other Lenders and,
as a result thereof or in connection therewith, it shall receive any excess
payment, then such Lender shall not be required to share any portion of such
excess payment with any Lender which has the legal right to, but does not, join
in any such action or proceeding or commence and diligently prosecute a
separate action or proceeding to enforce its rights in another court.
(c) The Borrower agrees that any Lender so purchasing a participation
from another Lender pursuant to this Section 4.13 may exercise all its rights
of set-off with respect to such participation as fully as if such Lender were
the direct creditor of the Borrower in the amount of such participation.
ARTICLE V
CONDITIONS PRECEDENT
5.01 Conditions to Effectiveness. The obligations of the Participating
Lenders under this Agreement are subject to the satisfaction or waiver of the
following conditions precedent (the date on which all such conditions precedent
are satisfied or waived being the "Effective Date"):
(a) Agreement. The Administrative Agent shall have received
counterparts of this Agreement duly executed by each party hereto and if
requested by a Lender, there shall have been delivered to the Administrative
Agent for the account of such Lender, a Note, executed by the Borrower.
(b) Opinions of Borrower's and each Guarantor's Counsel. The
Administrative Agent shall have received (i) the opinion of Skadden, Arps,
Slate, Meagher & Flom LLP, New York counsel to the Borrower and the Guarantors,
in substantially the form of Exhibit E, and (ii) the opinion of Lic. Ramiro G.
Villareal Morales, Mexican counsel to the Borrower, in substantially the form
of Exhibit F.
(c) Opinion of Counsel to the Administrative Agent. The Administrative
Agent shall have received (i) a favorable opinion of Ritch, Heather y Mueller,
S.C., special Mexican counsel to the Administrative Agent and the Participating
Lenders, and (ii) the opinion of Sullivan & Cromwell LLP, New York counsel to
the Participating Lenders.
(d) Governmental Approvals. The Administrative Agent shall have
received certified copies of any and all necessary approvals, authorizations,
or consents of, or notices to, or registrations with any Governmental
Authority required for the Borrower and each Guarantor to enter into, or
perform its obligations under, the Transaction Documents.
(e) Organizational Documents of the Borrower and the Guarantors. The
Administrative Agent shall have received certified copies of (i) the acta
constitutiva and estatutos sociales in effect on the Effective Date of the
Borrower and each Guarantor, (ii) the powers-of-attorney of each Person
executing any Transaction Document on behalf of the Borrower and each
Guarantor, together with specimen signatures of such Person and (iii) all
documents evidencing other necessary corporate action and governmental
approvals, if any, with respect to the authorization for the execution,
delivery and performance of each such Transaction Document and the transactions
contemplated hereby and thereby. All certificates shall state that the
resolutions or other information referred to in such certificates have not been
amended, modified, revoked or rescinded as of the date of such certificates
(which shall not be earlier than five Business Days before the Effective Date).
(f) Agent for Service of Process. The Administrative Agent shall have
received a power of attorney, notarized under Mexican law, granted by the
Borrower and each Guarantor to the Process Agent in respect of the Transaction
Documents together with evidence that the Process Agent has accepted its
appointment as Process Agent pursuant to Section 15.12.
(g) Fees and Expenses. The Borrower shall have paid all fees and
expenses owing to the Participating Lenders, the Joint Bookrunner and the
Administrative Agent to the extent of and payable on or before the Effective
Date of the Agreement, and all other fees and expenses owing hereunder and
under the Fee Letter to the extent due and payable on or before the Effective
Date of the Agreement.
(h) No Default. No Default or Event of Default shall have occurred
and be continuing either prior to or after giving effect to the transactions
contemplated on the Effective Date, and the Borrower and each Guarantor shall
have provided a certificate from a Responsible Officer of the Borrower to such
effect to the Administrative Agent.
(i) Representations and Warranties. The representations and
warranties of the Borrower and of each Guarantor contained in this Agreement
and each other Transaction Document shall be true on and as of the Effective
Date, and the Borrower and each Guarantor shall have provided a certificate to
such effect to the Administrative Agent.
(j) No Material Adverse Effect. No Material Adverse Effect shall have
occurred since December 31, 2003 and there shall have occurred no circumstance
and/or event of a financial, political or economic nature in Mexico that has a
reasonable likelihood of having a material adverse effect on the ability of
the Borrower or the Guarantors to perform their obligations under this
Agreement and the other Transaction Documents.
(k) Other Documents. The Administrative Agent shall have received
such other certificates, powers of attorney and other documents and
undertakings relating to the authority for, and the execution, delivery and
validity of, the Transaction Documents, as may be reasonably requested by the
Administrative Agent or any Participating Lender through the Administrative
Agent.
(l) Fees, Costs and Expenses under the Prior Agreement. The Borrower
shall have paid all accrued and unpaid fees payable under the Prior Agreement
to the extent due and payable on or before the Effective Date of this
Agreement.
(m) Prior Agreement. The Prior Agreement shall have been cancelled or
terminated in accordance with its respective terms, any promissory notes
issued thereunder shall have been cancelled or returned to the Borrower, all
outstanding loans issued under the Prior Agreement, other than the existing
Standby L/C set forth on Schedule 3.01, shall have been repaid or reimbursed.
The parties hereto agree that a Notice of Borrowing may be given under this
Agreement simultaneously to repay or reimburse all outstanding obligations
under the Prior Agreement.
(n) Termination of the U.S. Commercial Paper Program. The
Administrative Agent shall have received evidence that all outstanding amounts
under the CEMEX U.S. Commercial Paper program, dated as of August 8, 2003,
shall have been, or will be with the proceeds of a Borrowing hereunder, paid
in full and all commitments shall have been or will on the same day be
terminated or cancelled.
5.02 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 an Issuing Bank to issue a Standby L/C is subject to
the satisfaction of the following conditions:
(a) Notices. In the case of Borrowings, continuance or conversion of
Loans, the Administrative Agent shall have received a Notice of Borrowing,
Swing Line Request or a Notice of Extension/Conversion as required by Section
2.01(c), 2.02(c) or 2.01(e), respectively, and, in the case of issuances of
Standby L/Cs, the Appropriate Issuing Bank shall have received a Standby L/C
Request as required by Section 3.01(c);
(b) Availability. (i) 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 shall not exceed the
Aggregate Committed Amount; and
(ii) 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 L/C Sublimit.
(c) No Default. Immediately before and after giving effect to 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 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
(d) Representations and Warranties. The representations and
warranties of the Borrower contained in this Agreement and in each other
Transaction Document and of each Guarantor contained in this Agreement shall
be true and correct in all material respects on and as of the date of any
Borrowing, continuation or conversion of any Loan or issuance of a Standby L/C
thereof.
(e) Fees. In the case of issuances of Standby L/Cs, the Borrower
shall have paid to the Issuing Banks all of the Standby L/C Fees due and
payable on or before the issuance of such Standby L/C.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF THE BORROWER
The Borrower represents and warrants that:
6.01 Corporate Existence and Power.
(a) The Borrower is a corporation (sociedad anonima de capital
variable) duly incorporated, validly existing and in good standing under the
laws of Mexico and has all requisite corporate power and authority (including
all governmental licenses, permits and other approvals except for such
licenses, permits and approvals the absence of which will not have a Material
Adverse Effect) to own its assets and carry on its business as now conducted
and as proposed to be conducted.
(b) All of the outstanding stock of the Borrower has been validly
issued and is fully paid and non-assessable.
6.02 Power and Authority; Enforceable Obligations.
(a) The execution, delivery and performance by the Borrower of each
Transaction Document to which it is or will be a party, and the consummation of
the transactions contemplated hereby and thereby, are within the Borrower's
corporate powers and have been duly authorized by all necessary corporate
action pursuant to the estatutos sociales of the Borrower.
(b) This Agreement and the other Transaction Documents to which the
Borrower is a party have been duly executed and delivered by the Borrower and
constitute the legal, valid and binding obligations of the Borrower enforceable
in accordance with their respective terms, except as enforceability may be
limited by applicable concurso mercantil, bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally or general equity principles.
6.03 Compliance with Law and Other Instruments. The execution,
delivery of and performance under this Agreement and each of the other
Transaction Documents to which the Borrower is a party and the consummation of
the transactions herein or therein contemplated, and compliance with the terms
and provisions hereof and thereof, do not and will not (a) conflict with, or
result in a breach or violation of, or constitute a default under, or result in
the creation or imposition of any Lien upon the assets of the Borrower pursuant
to, any Contractual Obligation of the Borrower or (b) result in any violation
of the estatutos sociales of the Borrower or any provision of any Requirement
of Law applicable to the Borrower.
6.04 Consents/Approvals. No order, permission, consent, approval,
license, authorization, registration or validation of, or notice to or filing
with, or exemption by, any Governmental Authority or third party is required to
authorize, or is required in connection with, the execution, delivery and
performance by the Borrower of this Agreement and the other Transaction
Documents to which the Borrower is a party or the taking of any action
contemplated hereby or by any other Transaction Document.
6.05 Financial Information.
(a) The consolidated balance sheet of the Borrower and its
Subsidiaries as at December 31, 2003, and the related consolidated statements
of income and cash flows of the Borrower and its Subsidiaries for the fiscal
year then ended, accompanied by an opinion of KPMG Cardenas Dosal, S.C.,
independent public accountants, and the consolidated balance sheet of the
Borrower and its Subsidiaries as at March 31, 2004, and the related
consolidated statements of income and cash flows of the Borrower and its
Subsidiaries for the three months then ended, duly certified by the chief
financial officer of the Borrower, copies of which have been furnished to each
Lender, fairly present, subject, in the case of said balance sheet as at March
31, 2004, and said statements of income and cash flows for the three months
then ended, to year-end audit adjustments, the consolidated financial condition
of the Borrower and its Subsidiaries as at such dates and the consolidated
results of the operations of the Borrower and its Subsidiaries for the periods
ended on such dates, all in accordance with Mexican GAAP, consistently applied.
(b) Since December 31, 2003 there has been no development or event
which has had or is reasonably likely to have a Material Adverse Effect.
6.06 Litigation. Except as set forth in Schedule 6.06, there is no
pending or threatened action, suit, investigation, litigation or proceeding,
including any Environmental Action, affecting the Borrower or any of its
Subsidiaries before any court, Governmental Authority or arbitrator that (a)
would be reasonably likely to have a Material Adverse Effect or (b) purports to
affect the legality, validity or enforceability of any Transaction Document or
the consummation of the transactions contemplated thereby, and there has been
no adverse change in the status, or financial effect on the Borrower or any of
its Subsidiaries, of the litigation described in Schedule 6.06.
6.07 No Immunity. The Borrower is subject to civil and commercial law
with respect to its obligations under this Agreement and each other Transaction
Document to which it is a party and the execution, delivery and performance of
this Agreement or any such other Transaction Document by the Borrower
constitute private and commercial acts rather than public or governmental acts.
Under the laws of Mexico neither the Borrower nor any of its property has any
immunity from jurisdiction of any court or any legal process (whether through
service or notice, attachment prior to judgment or attachment in aid of
execution).
6.08 Governmental Regulations. The Borrower is not, and is not
controlled by, (a) an "investment company" within the meaning of the United
States Investment Company Act of 1940, as amended or (b) a "holding company",
or of a "subsidiary company" of a "holding company", or an "affiliate" of a
"holding company" or of a "subsidiary" of a "holding company", within the
meaning of the Public Utility Holding Company Act of 1935, as amended.
6.09 Direct Obligations; Pari Passu; Liens.
(a) (i) This Agreement constitutes a direct, unconditional
unsubordinated and unsecured obligation of the Borrower, and (ii) the Loans,
when made, will constitute direct, unconditional unsubordinated and unsecured
obligations of the Borrower.
(b) The obligations of the Borrower under this Agreement and the Loans
rank and will rank in priority of payment at least pari passu with all other
senior unsecured Debt of the Borrower.
(c) There are no Liens on the property of the Borrower or any of its
Subsidiaries other than Permitted Liens.
6.10 Subsidiaries. All Material Subsidiaries of the Borrower are
listed on Schedule 6.10.
6.11 Ownership of Property. (a) Except as, in the aggregate, could not
reasonably be expected to have a Material Adverse Effect, each of the Borrower
and its Subsidiaries has title in fee simple to, or a valid leasehold interest
in, all its real property, and good title to, or a valid leasehold interest in,
all its other property, and none of such property is subject to any Lien except
Permitted Liens and (b) each Credit Party maintains insurance as required by
Section 8.05.
6.12 No Recordation Necessary.
(a) This Agreement and the Notes are in proper legal form under the
law of Mexico for the enforcement thereof against the Borrower under the law of
Mexico. To ensure the legality, validity, enforceability or admissibility in
evidence of this Agreement and each other Transaction Document in Mexico, it is
not necessary that this Agreement or any other Transaction Document be filed or
recorded with any Governmental Authority in Mexico or that any stamp or similar
tax be paid on or in respect of this Agreement or any other document to be
furnished under this Agreement, unless such stamp or similar taxes have been
paid by the Borrower; provided, however, that in the event any legal
proceedings are brought in the courts of Mexico, an official Spanish
translation of the documents required in such proceedings, including this
Agreement, would have to be approved by the court after the defendant is given
an opportunity to be heard with respect to the accuracy of the translation, and
proceedings would thereafter be based upon the translated documents.
(b) It is not necessary (i) in order for the Administrative Agent or
any Participating Lender to enforce any rights or remedies under the
Transaction Documents or (ii) solely by reason of the execution, delivery and
performance of this Agreement by the Administrative Agent or any Participating
Lender, that the Administrative Agent or such Participating Lender be licensed
or qualified with any Mexican Governmental Authority or be entitled to carry on
business in Mexico.
6.13 Taxes.
(a) Each Obligor has filed all material tax returns which are required
to be filed by it and has paid all taxes due pursuant to such returns or
pursuant to any material assessment received by the Borrower, except where the
same may be contested in good faith by appropriate proceedings and as to which
such Obligor maintains reserves to the extent it is required to do so by law or
pursuant to Mexican GAAP. The charges, accruals and reserves on the books of
each Obligor in respect of taxes or other governmental charges are, in the
opinion of the Borrower, adequate.
(b) Except for tax imposed by way of withholding on interest, fees and
commissions remitted from Mexico, there is no tax (other than taxes on, or
measured by, income or profits), levy, impost, deduction, charge or withholding
imposed, levied, charged, assessed or made by or in Mexico or any political
subdivision or taxing authority thereof or therein either (i) on or by virtue
of the execution or delivery of this Agreement or any of the other Transaction
Documents or (ii) on any payment to be made by the Borrower pursuant to this
Agreement or any of the other Transaction Documents. The Borrower is permitted
to pay any additional amounts payable pursuant to Section 4.05.
6.14 Compliance with Laws. The Borrower and its Subsidiaries are in
compliance in all material respects with all applicable Requirements of Law
(including with respect to the licenses, certificates, permits, franchises, and
other governmental authorizations necessary to the ownership of their
respective properties or to the conduct of their respective businesses,
antitrust laws or Environmental Laws and the rules and regulations and laws
with respect to social security, workers' housing funds, and pension funds
obligations), except where the failure to so comply would not have a Material
Adverse Effect.
6.15 Absence of Default. No Default or Event of Default has occurred
and is continuing.
6.16 Full Disclosure. All information heretofore furnished
by the Borrower to the Administrative Agent, the Joint Bookrunners or any
Participating Lender for purposes of or in connection with this Agreement or
any transaction contemplated hereby (other than projections and other
"forward-looking" information that have been prepared on a reasonable basis
and in good faith by the Borrower) is, and all such information hereafter
furnished by the Borrower to the Administrative Agent, the Joint Bookrunners
or any Participating Lender will be, true and accurate in all material
respects on the date as of which such information is stated or certified and
does not omit to state any material fact necessary in order to make the
statements contained herein or therein, taken as a whole, not misleading. The
Borrower has disclosed to the Participating Lenders in writing any and all
facts which may have a Material Adverse Effect.
6.17 Choice of Law; Submission to Jurisdiction and Waiver
of Sovereign Immunity. In any action or proceeding involving the Borrower
arising out of or relating to this Agreement in any Mexican court or tribunal,
any Participating Lender, the Joint Bookrunners and the Administrative Agent
would be entitled to the recognition and effectiveness of the choice of law,
submission to jurisdiction and waiver of sovereign immunity provisions of
Sections 15.10, 15.11 and 15.13.
6.18 Total Outstandings. The Total Outstandings do not exceed the
aggregate amount of the Commitments.
6.19 Existing Standby L/C's. Attached hereto as Schedule 3.01 is a
complete and accurate list of the outstanding Standby L/C's under the Prior
Agreement, listed by number, stated amount, date of issue and expiry.
6.20 Pension and Welfare Plans. During the consecutive twelve-month
period prior to the date of the execution and delivery of this Agreement and
prior to the date of any Borrowing hereunder, no steps have been taken to
terminate any Pension Plan, and no contribution failure has occurred with
respect to any Pension Plan sufficient to give rise to a Lien under Section
302(f) of ERISA. No condition exists or event or transaction has occurred with
respect to any Pension Plan which would reasonably be expected to result in the
incurrence by any Credit Party, any of its Subsidiaries, or any its ERISA
Affiliates of any material liability (other than liabilities incurred in the
ordinary course of maintaining the Pension Plan), fine or penalty. No Credit
Party, nor any of its Subsidiaries, has any contingent liability with respect
to any post-retirement benefit under a Welfare Plan which would reasonably be
expected to have a Material Adverse Effect, other than liability for
continuation coverage described in Part 6 of Title I of ERISA.
6.21 Environmental Matters.
Except as would not have or be reasonably expected to have a Material
Adverse Effect:
(a) Each of the properties owned or leased by a Credit Party or any of
its Subsidiaries (the "Real Properties") and all operations at the Real
Properties are in compliance with all applicable Environmental Laws, and there
is no violation of any Environmental Law with respect to the Real Properties or
the businesses operated by the Credit Parties or any of their Subsidiaries (the
"Businesses"), and there are no conditions relating to the Businesses or Real
Properties that would reasonably be expected to give rise to liability under
any applicable Environmental Laws.
(b) No Credit Party has received any written notice of, or inquiry
from any Governmental Authority regarding, any violation, alleged violation,
non-compliance or liability regarding Hazardous Materials or compliance with
Environmental Laws with regard to any of the Real Properties or the
Businesses, nor, to the knowledge of a Credit Party or any of its
Subsidiaries, is any such notice being threatened.
(c) Hazardous Materials have not been transported or disposed of from
the Real Properties, or generated, treated, stored or disposed of at, on or
under any of the Real Properties or any other location, in each case by, or on
behalf or with the permission of, a Credit Party or any of its Subsidiaries in
a manner that would give rise to liability under any applicable Environmental
Laws.
(d) No judicial proceeding or governmental or administrative action is
pending or, to the knowledge of a Credit Party or any of its Subsidiaries,
threatened, under any Environmental Law to which a Credit Party or any of its
Subsidiaries is or will be named as a party, nor are there any consent decrees
or other decrees, consent orders, administrative orders or other orders, or
other administrative or judicial requirements outstanding under any
Environmental Law with respect to a Credit Party or any of its Subsidiaries,
the Real Properties or the Businesses.
(e) There has been no release (including, without limitation,
disposal) or to the Borrower's knowledge, threat of release of Hazardous
Materials at or from the Real Properties, or arising from or related to the
operations of a Credit Party or any of its Subsidiaries in connection with the
Real Properties or otherwise in connection with the Businesses where such
release constituted a violation of, or would give rise to liability under, any
applicable Environmental Laws.
(f) None of the Real Properties contains any Hazardous Materials at,
on or under the Real Properties in amounts or concentrations that, if released,
constitute a violation of, or could give rise to liability under, Environmental
Laws.
(g) No Credit Party, nor any of its Subsidiaries, has assumed any
liability of any Person (other than another Credit Party or one of its
Subsidiaries) under any Environmental Law.
(h) This Section 6.21 constitutes the only representations and
warranties of the Credit Parties with respect to any Environmental Law or
Hazardous Substance.
6.22 Margin Regulations. No part of the proceeds of the
Loans hereunder will be used, directly or indirectly, for the purpose of
purchasing or carrying any "margin stock" within the meaning of Regulation U,
or for the purpose of purchasing or carrying or trading in any securities. If
requested by any Participating Lender or the Administrative Agent, the
Borrower will furnish to the Administrative Agent and each Participating
Lender a statement to the foregoing effect in conformity with the requirements
of FR Form U-1 referred to in said Regulation U. No indebtedness being reduced
or retired out of the proceeds of the Loans hereunder was or will be incurred
for the purpose of purchasing or carrying any margin stock within the meaning
of Regulation U or any "margin security" within the meaning of Regulation T.
"Margin stock" within the meaning of Regulation U does not constitute more
than 25% of the value of the consolidated assets of the Borrower and its
Subsidiaries. Neither the execution and delivery hereof by the Borrower, nor
the performance by it of any of the transactions contemplated by this
Agreement (including, without limitation, the direct or indirect use of the
proceeds of the Loans) will violate or result in a violation of the Securities
Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended,
or regulations issued pursuant thereto, or Regulation T, U, or X.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES OF THE GUARANTORS
Each of the Guarantors separately represents and warrants that:
7.01 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.
7.02 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.
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 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.
7.04 Consents/Approvals. No order, permission, consent, approval,
license, authorization, registration or validation of, or notice to or filing
with, or exemption by, any Governmental Authority or third party is required to
authorize, or is required in connection with, the execution, delivery and
performance by such Guarantor of this Agreement and the other Transaction
Documents to which such Guarantor is a party or the taking of any action
contemplated hereby or by any other Transaction Document.
7.05 Litigation; Material Adverse Effect. (a) Except as set forth in
Schedule 7.05, there is no pending or threatened action, suit, investigation,
litigation or proceeding, including any Environmental Action, affecting the
Borrower or any of its Subsidiaries before any court, Governmental Authority or
arbitrator that (i) would be reasonably likely to have a Material Adverse
Effect or (ii) purports to affect the legality, validity or enforceability of
any Transaction Document or the consummation of the transactions contemplated
thereby, and there has been no adverse change in the status, or financial
effect on the Borrower or any of its Subsidiaries, of the litigation described
in Schedule 7.05.
(b) Since December 31, 2003 there has been no development or event
which has had or is reasonably likely to have a Material Adverse Effect.
7.06 No Immunity. Such Guarantor is subject to civil and commercial
law with respect to its obligations under this Agreement and each other
Transaction Document to which it is a party and the execution, delivery and
performance of this Agreement or any such other Transaction Document by such
Guarantor constitute private and commercial acts rather than public or
governmental acts. Under the laws of Mexico neither such Guarantor nor any of
its property has any immunity from jurisdiction of any court or any legal
process (whether through service or notice, attachment prior to judgment or
attachment in aid of execution).
7.07 Governmental Regulations. Such Guarantor is not, and is not
controlled by, (a) an "investment company" within the meaning of the United
States Investment Company Act of 1940, as amended or (b) a "holding company",
or a "subsidiary company" of a "holding company", or an "affiliate" of a
"holding company" or of a "subsidiary" of a "holding company", within the
meaning of the Public Utility Holding Company Act of 1935, as amended.
7.08 Direct Obligations; Pari Passu.
(a) This Agreement constitutes a direct, unconditional unsubordinated
and unsecured obligation of such Guarantor.
(b) The obligations of such Guarantor under this Agreement rank and
will rank in priority of payment at least pari passu with all other senior
unsecured Debt of such Guarantor.
7.09 No Recordation Necessary. This Agreement is in proper legal form
under the law of Mexico for the enforcement thereof against such Guarantor
under the law of Mexico. To ensure the legality, validity, enforceability or
admissibility in evidence of this Agreement and each other Transaction Document
in Mexico, it is not necessary that this Agreement or any other Transaction
Document be filed or recorded with any Governmental Authority in Mexico or that
any stamp or similar tax be paid on or in respect of this Agreement or any
other document to be furnished under this Agreement unless such stamp or
similar taxes have been paid by the Borrower or the Guarantors; provided,
however, that in the event any legal proceedings are brought in the courts of
Mexico, an official Spanish translation of the documents required in such
proceedings, including this Agreement, would have to be approved by the court
after the defendant is given an opportunity to be heard with respect to the
accuracy of the translation, and proceedings would thereafter be based upon the
translated documents.
7.10 Choice of Law; Submission to Jurisdiction and Waiver of Sovereign
Immunity. In any action or proceeding involving such Guarantor arising out of
or relating to this Agreement in any Mexican court or tribunal, the
Participating Lenders, the Joint Bookrunners and the Administrative Agent would
be entitled to the recognition and effectiveness of the choice of law,
submission to jurisdiction and waiver of sovereign immunity provisions of
Sections 15.10, 15.11 and 15.13.
ARTICLE VIII
AFFIRMATIVE COVENANTS
The Borrower covenants and agrees that for so long as any Obligation
under this Agreement or any other Transaction Document remains unpaid, any
Standby L/Cs remain outstanding or any Lender has any Commitment hereunder:
8.01 Financial Reports and Other Information. The Borrower will
deliver to the Administrative Agent (with a copy for each Participating
Lender):
(a) as soon as available and in any event within 120 days after the
end of each fiscal year of the Borrower, a copy of the annual audit report for
such year for the Borrower and its Subsidiaries containing consolidated and
consolidating balance sheets of the Borrower and its Subsidiaries, as of the
end of such fiscal year and consolidated statements of income and cash flows of
the Borrower and its Subsidiaries, for such fiscal year, in each case
accompanied by an opinion acceptable to the Required Lenders by KPMG Cardenas
Dosal, S.C. or other independent public accountants of recognized standing
acceptable to the Required Lenders, together with (i) a certificate of such
accounting firm to the Lenders stating that in the course of the regular audit
of the business of the Borrower and its Subsidiaries, which audit was conducted
by such accounting firm in accordance with Mexican GAAP, such accounting firm
has obtained no knowledge that a Default or Event of Default has occurred and
is continuing, or if, in the opinion of such accounting firm a Default or Event
of Default has occurred and is continuing, a statement as to the nature thereof
and (ii) a certificate of a Responsible Officer of the Borrower, stating that
no Default or Event of Default has occurred and is continuing or, if a Default
or Event of Default has occurred and is continuing, a statement as to the
nature thereof and the action that the Borrower has taken and proposes to take
with respect thereto; provided that in the event of any change in the Mexican
GAAP used in the preparation of such financial statements, the Borrower shall
also provide, for informational purposes only, a statement of reconciliation
conforming such financial statements to Mexican GAAP consistent with those
applied in the preparation of the financial statements referred to in Section
6.05 and provided further that all such documents will be prepared in English;
and
(b) as soon as available and in any event within 60 days after the end
of each of the first three quarters of each fiscal year of the Borrower,
consolidated balance sheets of the Borrower and its Subsidiaries, as of the end
of such quarter and consolidated statements of income and cash flows of the
Borrower and its Subsidiaries for the period commencing at the end of the
previous fiscal year and ending with the end of such quarter, duly certified
(subject to year-end audit adjustments) by any Responsible Officer of the
Borrower as having been prepared in accordance with Mexican GAAP and together
with a certificate of a Responsible Officer of the Borrower, as to compliance
with the terms of this Agreement and stating that no Default or Event of
Default has occurred and is continuing or, if a Default or Event of Default has
occurred and is continuing, a statement as to the nature thereof and the action
that the Borrower has taken and proposes to take with respect thereto; provided
that in the event of any change in the Mexican GAAP used in the preparation of
such financial statements, the Borrower shall also provide, for informational
purposes only, a statement of reconciliation conforming such financial
statements to Mexican GAAP consistent with those applied in the preparation of
the financial statements referred to in Section 6.05 and provided further that
all such documents will be prepared in English.
8.02 Notice of Default and Litigation. The Borrower will furnish to
the Administrative Agent (and the Administrative Agent will notify each
Participating Lender):
(a) as soon as practicable and in any event within five days after the
occurrence of each Default or Event of Default continuing on the date of such
statement, a statement of the chief financial officer of the Borrower setting
forth details of such Default or Event of Default and the action that the
Borrower has taken and proposes to take with respect thereto; and
(b) promptly after the commencement thereof, notice of all litigation,
actions, investigations and proceedings before any court, Governmental
Authority or arbitrator affecting the Borrower or any of its Subsidiaries of
the type described in Section 6.06 or the receipt of written notice by the
Borrower or any of its subsidiaries of potential liability or responsibility
for violation, or alleged violation of any federal, state or local law, rule or
regulation (including but not limited to Environmental Laws) the violation of
which could reasonably be expected to have a Material Adverse Effect.
8.03 Compliance with Laws and Contractual Obligations, Etc. The
Borrower will comply, and cause each of its Subsidiaries to comply, in all
material respects, with all applicable Requirements of Law (including with
respect to the licenses, approvals, certificates, permits, franchises, notices,
registrations and other governmental authorizations necessary to the ownership
of its respective properties or to the conduct of its respective business,
antitrust laws or Environmental Laws and laws with respect to social security
and pension funds obligations) and all material Contractual Obligations, except
where the failure to so comply could not reasonably be expected to have a
Material Adverse Effect.
8.04 Payment of Obligations. The Borrower will pay and discharge, and
cause each of its Subsidiaries to pay and discharge, before the same shall
become delinquent, (a) all taxes, assessments and governmental charges or
levies assessed, charged or imposed upon it or upon its property and (b) all
lawful claims that, if unpaid, might by law become a Lien upon its property,
except where the failure to make such payments or effect such discharges could
not reasonably be expected to have a Material Adverse Effect; provided,
however, that neither the Borrower nor any of its Subsidiaries shall be
required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim that is being contested in good faith and by proper
proceedings and as to which appropriate reserves are being maintained, unless
and until any Lien resulting therefrom attaches to its property and becomes
enforceable against its other creditors.
8.05 Maintenance of Insurance. The Borrower will maintain, and cause
each of its Subsidiaries to maintain, insurance with reputable insurance
companies or associations in such amounts and covering such risks as is usually
carried by companies of established reputation engaged in similar businesses
and owning similar properties in the same general areas in which the Borrower
or such Subsidiary operates.
8.06 Conduct of Business and Preservation of Corporate Existence. The
Borrower will continue to engage in business of the same general type as now
conducted by the Borrower and will preserve and maintain, and cause each of its
Material Subsidiaries to preserve and maintain, its corporate existence, rights
(charter and statutory), licenses, consents, permits, notices or approvals and
franchises deemed material to its business; provided that neither the Borrower
nor any of its Subsidiaries shall be required to maintain its corporate
existence in connection with a merger or consolidation in compliance with
Section 9.03; and provided, further that neither the Borrower nor any of its
Subsidiaries shall be required to preserve any right or franchise if the
Borrower or any such Subsidiary shall in its good faith judgment, determine
that the preservation thereof is no longer in the best interests of the
Borrower or such Subsidiary, as the case may be, and that the loss thereof
could not reasonably be expected to have a Material Adverse Effect.
8.07 Books and Records. The Borrower will keep, and cause each of its
Subsidiaries to keep, proper books of record and account, in which full and
correct entries shall be made of all financial transactions and the assets and
business of the Borrower and each such Subsidiary in accordance with Mexican
GAAP, consistently applied.
8.08 Maintenance of Properties, Etc. The Borrower will:
(a) maintain and preserve, and cause each of its Subsidiaries to
maintain and preserve, all of its properties that are used or useful in the
conduct of its business in good working order and condition, ordinary wear and
tear excepted, and
(b) maintain, preserve and protect all intellectual property and all
necessary governmental and third party approvals, franchises, licenses and
permits, material to the business of the Borrower or its Subsidiaries, provided
neither paragraph (a) nor this paragraph (b) shall prevent the Borrower or any
of its Subsidiaries from discontinuing the operation and maintenance of any of
its properties or allowing to lapse certain approvals, licenses or permits
which discontinuance is desirable in the conduct of its business and which
discontinuance could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
8.09 Use of Proceeds.
(a) The Borrower will use the proceeds of all Loans made hereunder for
general corporate purposes, including but not limited to the repayment of short
term debt.
(b) The Borrower will ensure that at no time shall the Aggregate
Exposure of the Participating Lenders exceed the Aggregate Committed Amount
then in effect.
8.10 Pari Passu Ranking. The Borrower will ensure that at all times
the Obligations of the Borrower and each of the Guarantors under the
Transaction Documents constitute unconditional general obligations of such
Obligor ranking in priority of payment at least pari passu with all other
senior unsecured, unsubordinated Debt of such Obligor.
8.11 Transactions with Affiliates. The Borrower will conduct, and
cause each of its Subsidiaries to conduct, all transactions otherwise permitted
under this Agreement with any of its Affiliates on terms that are commercially
reasonable and no less favorable to the Borrower or such Subsidiary than it
would obtain in a comparable arm's-length transaction with a Person not an
Affiliate.
8.12 Maintenance of Governmental Approvals. The Borrower will maintain
in full force and effect at all times all approvals of and filings with any
Governmental Authority or third Party required under applicable law for the
conduct of its business (including, without limitation, antitrust laws or
Environmental Laws) and the performance of the Obligors' obligations hereunder
and under the other Transaction Documents by the Borrower and/or the
Guarantors, as applicable, and for the validity or enforceability hereof and
thereof, except where failure to maintain any such approvals or filings could
not reasonably be expected to have a Material Adverse Effect.
8.13 Measurement Date. The Borrower shall provide to the
Administrative Agent a certificate of a Responsible Officer detailing the
latest twelve month total Consolidated Net Debt/EBITDA Ratio (i) on the date a
Notice of Borrowing is submitted by the Borrower, (ii) one Business Day
following the date any Responsible Officer obtains actual knowledge of a change
in the Consolidated Net Debt/EBITDA Ratio, (iii) one Business Day following the
date the Administrative Agent or any Participating Lender requests such ratio
and (iv) as soon as practicable, but in no event later than the 20th Business
Day following the last day of every quarter, in each case calculated as of the
date of such event or occurrence based on the most recently available
consolidated financial statements of the Borrower and its Subsidiaries for the
corresponding fiscal quarter prior to such date and calculated (for purposes of
event (i) above) after giving effect to the Borrowing, obligation or conversion
requested under the Notice of Borrowing.
8.14 Inspection of Property. At any reasonable time during normal
business hours and from time to time with at least ten Business Days prior
notice, or at any time if a Default or Event of Default shall have occurred and
be continuing, permit the Administrative Agent or any of the Participating
Lenders or any agents or representatives thereof to examine and make abstracts
from the records and books of account of, and visit the properties of, each of
the Borrower or the Guarantors, and to discuss the affairs, finances and
accounts of the Borrower or such Guarantor with any of its officers or
directors and with its independent certified public accountants. All expenses
associated with such inspection shall be borne by the inspecting Participating
Lenders; provided that if a Default or an Event of Default shall have occurred
and be continuing, any expenses associated with such inspection shall be borne
jointly and severally by the Borrower and the Guarantors.
ARTICLE IX
NEGATIVE COVENANTS
The Borrower covenants and agrees that for so long as any Obligation
under this Agreement or any other Transaction Document remains unpaid, any
Standby L/C remains outstanding or any Lender has any Commitment hereunder:
9.01 Financial Conditions.
(a) The Borrower shall not permit the Consolidated Leverage Ratio at
any time to exceed 3.5 to 1.
(b) The Borrower shall not permit the Consolidated Fixed Charge
Coverage Ratio for any period of four consecutive fiscal quarters to be less
than 2.5 to 1.
(c) Concurrently with the delivery by the Borrower of any financial
statements pursuant to Section 8.01 the Borrower shall deliver to the
Administrative Agent (with a copy to each Participating Lender) a certificate
from a Responsible Officer containing all information and calculations
necessary for determining compliance by the Borrower with Sections 9.01 (a) and
(b) above.
9.02 Liens. The Borrower shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, create, incur, assume or permit to
exist any Lien on or with respect to any property or asset of the Borrower or
any Subsidiary, whether now owned or held or hereafter acquired, other than the
following Liens ("Permitted Liens"):
(a) Liens for taxes, assessments and other governmental charges the
payment of which is being contested in good faith by appropriate proceedings
promptly initiated and diligently conducted and for which 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 9.02 hereto;
(f) any Lien on property acquired by the Borrower after the date
hereof that was existing on the date of acquisition of such property; provided
that such Lien was not incurred in anticipation of such acquisition, and any
Lien created to secure all or any part of the purchase price, or to secure Debt
incurred or assumed to pay all or any part of the purchase price, of property
acquired by the Borrower or any of its Subsidiaries after the date hereof;
provided, further, that (A) any such Lien permitted pursuant to this clause (f)
shall be confined solely to the item or items of property so acquired
(including, in the case of any Acquisition of a corporation through the
acquisition of 51% or more of the voting stock of such corporation, the stock
and assets of any Acquired Subsidiary or Acquiring Subsidiary) and, if required
by the terms of the instrument originally creating such Lien, other property
which is an improvement to, or is acquired for specific use with, such acquired
property; and (B) if applicable, any such Lien shall be created within nine
months after, in the case of property, its acquisition, or, in the case of
improvements, their completion;
(g) any Lien renewing, extending or refunding any Lien permitted by
clause (f) above; provided that the principal amount of Debt secured by such
Lien immediately prior thereto is not increased or the maturity thereof reduced
and such Lien is not extended to other property;
(h) any Liens created on shares of capital stock of the Borrower or
any of its Subsidiaries solely as a result of the deposit or transfer of such
shares into a trust or a special purpose vehicle (including any entity with
legal personality) of which such shares constitute the sole assets; provided
that (A) any shares of Subsidiary stock held in such trust, corporation or
entity could be sold by the Borrower; and (B) proceeds from the deposit or
transfer of such shares into such trust, corporation or entity and from any
transfer of or distributions in respect of the Borrower's or any Subsidiary's
interest in such trust, corporation or entity are applied as provided under
Section 9.04; and provided, further that such Liens may not secure Debt of the
Borrower or any Subsidiary (unless permitted under another clause of this
Section 9.02);
(i) any Liens on securities securing repurchase obligations in respect
of such securities;
(j) any Liens in respect of any Receivables Program Assets which are
or may be sold or transferred pursuant to a Qualified Receivables Transaction;
and
(k) in addition to the Liens permitted by the foregoing clauses (a)
through (j), Liens securing Debt of the Borrower and its Subsidiaries (taken as
a whole) not in excess of 5% of the Adjusted Consolidated Net Tangible Assets
of the Borrower and its Subsidiaries;
unless, in each case, the Borrower has made or caused to be made effective
provision whereby the Obligations hereunder are secured equally and ratably
with, or prior to, the Debt secured by such Liens (other than Permitted Liens)
for so long as such Debt is so secured.
9.03 Consolidations and Mergers. The Borrower 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 Borrower 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 Borrower 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 Borrower shall be Mexico, the United States,
Canada, France, Belgium, Germany, Italy, Luxembourg, the Netherlands,
Portugal, Spain, Switzerland or the United Kingdom, or any political
subdivision thereof, (ii) in the case of a Successor to the Borrower, shall
expressly assume, pursuant to a written agreement in form and substance
satisfactory to the Required Lenders, the Obligations of the Borrower pursuant
to this Agreement and the performance of every covenant on part of the
Borrower to be performed and observed and (iii) in the case of a Successor to
any Guarantor, shall expressly assume, pursuant to a written agreement in form
and substance satisfactory to the Required Lenders, the performance of every
covenant of this Agreement on part of such Guarantor to be performed and
observed;
(b) in the case of any such transaction involving the Borrower or any
Guarantor, the Borrower or such Guarantor, or the Successor of any thereof, as
the case may be, shall expressly agree to indemnify each Participating Lender
and the Administrative Agent against any tax, levy, assessment or governmental
charge payable by withholding or deduction thereafter imposed on such
Participating Lender and/or the Administrative Agent solely as a consequence of
such transaction with respect to payments under the Transaction Documents;
(c) immediately after giving effect to such transaction, including for
purposes of this clause (c) the substitution of any Successor to the Borrower
for the Borrower or the substitution of any Successor to a Subsidiary for such
Subsidiary and treating any Debt or Lien incurred by the Borrower or any
Successor to the Borrower, or by a Subsidiary of the Borrower or any Successor
to such Subsidiary, as a result of such transactions as having been incurred at
the time of such transaction, no Default or Event of Default shall have
occurred and be continuing; and
(d) the Borrower shall have delivered to the Administrative Agent an
officer's certificate and an opinion of counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a written
agreement is required in connection with such transaction, such written
agreement comply with the relevant provisions of this Article IX and that all
conditions precedent provided for in this Agreement relating to such
transaction have been complied with.
9.04 Sales of Assets, Etc. The Borrower will not, and will not permit
any of its Material Subsidiaries to, sell, lease or otherwise dispose of any of
its assets (including the capital stock of any Subsidiary), other than (a)
inventory, trade receivables and assets surplus to the needs of the business of
the Borrower or any Subsidiary sold in the ordinary course of business and (b)
assets not used, usable or held for use in connection with cement operations
and related operations, unless the proceeds of the sale of such assets are
retained by the Borrower or such Subsidiary, as the case may be, and, as
promptly as practicable after such sale (but in any event within 180 days of
such sale), the proceeds are applied to (i) expenditures for property, plant
and equipment usable in the cement industry or related industries; (ii) the
repayment of senior Debt of the Borrower or any of its Subsidiaries, whether
secured or unsecured; or (iii) investments in companies engaged in the cement
industry or related industries.
9.05 Change in Nature of Business. The Borrower shall not make, or
permit any of its Material Subsidiaries to make, any material change in the
nature of its business as carried on at the date hereof.
9.06 Margin Regulations. The Borrower shall not use any part of the
proceeds of the Loans or any Standby L/C for any purpose which would result in
any violation (whether by the Borrower, the Administrative Agent, any 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 Borrower shall not engage in,
or maintain as one of its important activities, the business of extending
credit for the purpose of purchasing or carrying any margin stock (as defined
in such regulations).
ARTICLE X
OBLIGATIONS OF GUARANTORS
10.01 The Guaranty. Each of the Guarantors jointly and severally
hereby unconditionally and irrevocably guarantee (as a primary obligor and not
merely as surety) payment in full as provided herein of all Obligations payable
by the Borrower to each Participating Lender, the Administrative Agent and the
Joint Bookrunners under this Agreement and the other Transaction Documents and
the Fee Letter, as and when such amounts become payable (whether at stated
maturity, by acceleration or otherwise).
10.02 Nature of Liability. The obligations of the Guarantors hereunder
are guarantees of payment and shall remain in full force and effect until all
Obligations of the Borrower have been validly, finally and irrevocably paid in
full, and shall not be affected in any way by the absence of any action to
obtain such amounts from the Borrower or by any variation, extension, waiver,
compromise or release of any or all Obligations from time to time therefor.
Each Guarantor waives all requirements as to promptness, diligence,
presentment, demand for payment, protest and notice of any kind with respect to
this Agreement and the other Transaction Documents.
10.03 Unconditional Obligations. Notwithstanding any contrary
principles under the laws of any jurisdiction other than the State of New York,
the obligations of each of the Guarantors hereunder shall be unconditional,
irrevocable and absolute and, without limiting the generality of the foregoing,
shall not be impaired, terminated, released, discharged or otherwise affected
by the following:
(a) the existence of any claim, set-off or other right which either of
the Guarantors may have at any time against the Borrower, the Administrative
Agent, the Issuing Banks, any Lenders or any other Person, whether in
connection with this transaction or with any unrelated transaction;
(b) any invalidity or unenforceability of this Agreement or any other
Transaction Document relating to or against the Borrower or either of the
Guarantors for any reason (including for the reason that the obtaining of the
Standby L/Cs may be in excess of the powers of the Borrower 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 Borrower of any amount payable by the Borrower
under this Agreement or any of the other Transaction Documents or the payment,
observance, fulfillment or performance of any other Obligations;
(d) any change in the name, purposes, business, capital stock
(including the ownership thereof) or constitution of the Borrower; or
(e) any other act or omission to act or delay of any kind by the
Borrower, the Administrative Agent, the Participating 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.
10.04 Independent Obligation. The obligations of each of the
Guarantors hereunder are independent of the Borrower's obligations under the
Transaction Documents and of any guaranty or security that may be obtained for
the Obligations. The Administrative Agent and the Participating Lenders may
neglect or forbear to enforce payment hereunder, under any Transaction Document
or under any guaranty or security, without in any way affecting or impairing
the liability of each Guarantor hereunder. The Administrative Agent or the
Participating Lenders shall not be obligated to exhaust recourse or take any
other action against the Borrower or under any agreement to purchase or
security which the Administrative Agent or the Participating Lenders may hold
before being entitled to payment from the Guarantors of the obligations
hereunder or proceed against or have resort to any balance of any deposit
account or credit on the books of the Administrative Agent or the Participating
Lenders in favor of the Borrower or each of the Guarantors. Without limiting
the generality of the foregoing, the Administrative Agent or the Participating
Lenders shall have the right to bring suit directly against either of the
Guarantors, either prior or subsequent to or concurrently with any lawsuit
against, or without bringing suit against, the Borrower and/or the other
Guarantor.
10.05 Waiver of Notices. Each of the Guarantors hereby waives notice
of acceptance of this ARTICLE X and notice of any liability to which it may
apply, and waives presentment, demand for payment, protest, notice of dishonor
or nonpayment of any such liability, suit or the taking of other action by the
Administrative Agent or the Participating Lenders against, and any other
notice, to the Guarantors.
10.06 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 X, including failure of consideration, breach of
warranty, statute of frauds, merger or consolidation of the Borrower, statute
of limitations, accord and satisfaction and usury. Without limiting the
generality of the foregoing, each of the Guarantors consents that, without
notice to such Guarantor and without the necessity for any additional
endorsement or consent by such Guarantor, and without impairing or affecting in
any way the liability of such Guarantor hereunder, the Administrative Agent and
the Participating 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 X shall
apply to the Obligations as so changed, extended, renewed or altered; (b)
exercise or refrain from exercising any right against the Borrower or others
(including the Guarantors) or otherwise act or refrain from acting, (c) settle
or compromise any of the Obligations, any security therefor or any liability
(including any of those hereunder) incurred directly or indirectly in respect
thereof or hereof, and may subordinate the payment of all or any part thereof
to the payment of any such liability (whether due or not) of the Borrower to
creditors of the Borrower other than the Administrative Agent and the
Participating Lenders and the Guarantors, (d) apply any sums by whomsoever paid
or howsoever realized, other than payments of the Guarantors of the
Obligations, to any liability or liabilities of the Borrower under the
Transaction Documents or any instruments or agreements referred to herein or
therein, to the Administrative Agent and the Participating Lenders regardless
of which of such liability or liabilities of the Borrower under the Transaction
Documents or any instruments or agreements referred to herein or therein remain
unpaid; (e) consent to or waive any breach of, or any act, omission or default
under the Obligations or any of the instruments or agreements referred to in
this Agreement and the other Transaction Documents, or otherwise amend, modify
or supplement the Obligations or any of such instruments or agreements,
including the Transaction Documents; and/or (f) request or accept other support
of the Obligations or take and hold any security for the payment of the
Obligations or the obligations of the Guarantors under this ARTICLE XI, or
allow the release, impairment, surrender, exchange, substitution, compromise,
settlement, rescission or subordination thereof. Furthermore, each of the
Guarantors hereby waives to the extent permitted by law any right to which it
may be entitled to under Articles 2830, 2836, 2842, 2845, 2846, 2848 and 2849
of the Mexican Federal Civil Code and related Articles contained in the Civil
Codes of the States in Mexico. The Guarantors further expressly waive the
benefits of order, excusion y division contained in Articles 2814, 2815, 2817,
2818, 2820, 2821, 2822, 2823, 2837, 2838, 2840, 2841 and other related Articles
of the Mexican Federal Civil Code and related Articles contained in other Civil
Codes of the States of Mexico. The Guarantors hereby represent that the terms
of each such provision of each such civil code as known of form and substance
to each such Guarantor
10.07 Bankruptcy and Related Matters.
(a) So long as any of the Obligations remain outstanding, each of the
Guarantors shall not, without the prior written consent of the Administrative
Agent (acting with the consent of the Required Lenders), commence or join with
any other Person in commencing any bankruptcy, liquidation, reorganization,
concurso mercantil or insolvency proceedings of, or against, the Borrower.
(b) If acceleration of the time for payment of any amount payable by
the Borrower under this Agreement or the Notes is stayed upon the insolvency,
bankruptcy, reorganization, concurso mercantil or any similar event of the
Borrower or otherwise, all such amounts otherwise subject to acceleration under
the terms of this Agreement shall nonetheless be payable by the Guarantors
hereunder forthwith on demand by the Administrative Agent made at the request
of the Participating Lenders.
(c) The obligations of each of the Guarantors under this ARTICLE X
shall not be reduced, limited, impaired, discharged, deferred, suspended or
terminated by any proceeding or action, voluntary or involuntary, involving the
bankruptcy, insolvency, concurso mercantil, receivership, reorganization,
marshalling of assets, assignment for the benefit of creditors, readjustment,
liquidation or arrangement of the Borrower or similar proceedings or actions or
by any defense which the Borrower may have by reason of the order, decree or
decision of any court or administrative body resulting from any such proceeding
or action. Without limiting the generality of the foregoing, the Guarantors'
liability shall extend to all amounts and obligations that constitute the
Obligations and would be owed by the Borrower but for the fact that they are
unenforceable or not allowable due to the existence of any such proceeding or
action.
(d) Each of the Guarantors acknowledges and agrees that any interest
on any portion of the Obligations which accrues after the commencement of any
proceeding or action referred to above in Section 10.07(c) (or, if interest on
any portion of the Obligations ceases to accrue by operation of law by reason
of the commencement of said proceeding or action, such interest as would have
accrued on such portion of the Obligations if said proceedings or actions had
not been commenced) shall be included in the Obligations, it being the
intention of the Guarantors, the Administrative Agent, and the Participating
Lenders that the Obligations which are to be purchased by the Guarantors
pursuant to this ARTICLE X shall be determined without regard to any rule of
law or order which may relieve the Borrower of any portion of such Obligations.
The Guarantors will take no action to prevent any trustee in bankruptcy,
receiver, debtor in possession, assignee for the benefit of creditors or
similar person from paying the Administrative Agent, or allowing the claim of
the Administrative Agent, for the benefit of the Administrative Agent, and the
Participating Lenders, in respect of any such interest accruing after the date
of which such proceeding is commenced, except to the extent any such interest
shall already have been paid by the Guarantors.
(e) Notwithstanding anything to the contrary contained herein, if all
or any portion of the Obligations are paid by or on behalf of the Borrower, the
obligations of the Guarantors hereunder shall continue and remain in full force
and effect or be reinstated, as the case may be, in the event that all or any
part of such payment(s) are rescinded or recovered, directly or indirectly,
from the Administrative Agent and/or the Participating 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 X, to the extent permitted by applicable law.
10.08 No Subrogation. Notwithstanding any payment or
payments made by any of the Guarantors hereunder or any set-off or application
of funds of any of the Guarantors by the Administrative Agent or any
Participating Lender, no Guarantor shall be entitled to be subrogated to any
of the rights of the Administrative Agent or any Participating Lender against
the Borrower or any other Guarantor or any collateral security or guarantee or
right of offset held by the Administrative Agent or any Participating Lender
for the payment of the Obligations, nor shall any Guarantor seek or be
entitled to seek any contribution or reimbursement from the Borrower or any
other Guarantor in respect of payments made by such Guarantor hereunder, until
all amounts owing to the Administrative Agent and the Participating Lenders by
the Borrower on account of the Obligations shall have been indefeasibly paid
in full in cash. If any amount shall be paid to any Guarantor on account of
such subrogation rights at any time when all of the Obligations shall not have
been indefeasibly paid in full in cash, such amount shall be held by such
Guarantor in trust for the 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.
10.09 Right of Contribution. Subject to Section 10.08, 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 10.09 shall in no respect limit the obligations and
liabilities of any Guarantor to the Administrative Agent, the Joint Bookrunners
and the Participating Lenders, and each Guarantor shall remain liable to the
Administrative Agent, the Joint Bookrunners and the Participating Lenders for
the full amount guaranteed by such Guarantor hereunder.
10.10 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 10.10 would otherwise, taking into account the provisions of Section
10.09, 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 10.01, then, notwithstanding any other provision
hereof to the contrary, the amount of such liability shall, without any further
action by such Guarantor, any Participating Lender, the Administrative Agent or
any other Person, be automatically limited and reduced to the highest amount
that is valid and enforceable and not subordinated to the claims of other
creditors as determined in such action or proceeding.
10.11 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, any Standby L/C remains outstanding or any
Participating Lender has any Commitment hereunder, it shall comply with the
covenants contained or incorporated by reference in this Agreement to the
extent applicable to it as a Subsidiary of the Borrower.
ARTICLE XI
EVENTS OF DEFAULT
11.01 Events of Default. The following specified events
shall constitute "Events of Default" for the purposes of this Agreement:
(a) Payment Defaults. The Borrower shall (i) fail to reimburse any
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, 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 Borrower 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 Borrower or such Guarantor, as the
case may be, becomes aware of such incorrectness or (ii) written notice thereof
shall have been given to the Borrower by the Administrative Agent; or
(c) Specific Defaults. The Borrower or a Guarantor, as applicable,
shall fail to perform or observe any term, covenant or agreement contained in
Section 8.01, 8.02(a), 8.06 (with respect to the Borrower's and each
Guarantor's existence only), 8.09(b) or 8.10 or ARTICLE IX; or
(d) Other Defaults. The Borrower or a Guarantor, as applicable, shall
fail to perform or observe any term, covenant or agreement contained in this
Agreement or any other Transaction Document (other than as provided in
paragraphs (a) and (c) above) and such failure shall continue unremedied for a
period of 30 days after the earlier of the date on which (i) the chief
financial officer of the Borrower becomes aware of such failure or (ii) written
notice thereof shall have been given to the Borrower by the Administrative
Agent at the request of any Lender; or
(e) Defaults under Other Agreements. The occurrence of a default or
event of default under any indenture, agreement or instrument relating to any
Material Debt of the Borrower or any of its Subsidiaries, and (unless any
principal amount of such Material Debt is otherwise due and payable) such
default or event of default results in the acceleration of the maturity of any
principal amount of such Material Debt prior to the date on which it would
otherwise become due and payable; or
(f) Voluntary Bankruptcy. The Borrower or any Material Subsidiary
shall commence a voluntary case or other proceeding seeking liquidation,
reorganization, concurso mercantil or other relief with respect to itself or
its debts under any bankruptcy, insolvency, reorganization or other similar law
now or hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any substantial part
of its property, or shall consent to any such relief or to the appointment of
or taking possession by any such official in an involuntary case or other
proceeding commenced against it, or shall make a general assignment for the
benefit of creditors, or shall fail generally to pay its debts as they become
due, or shall take any corporate action to authorize any of the foregoing or
the equivalent thereof under Mexican law (including the Ley de Concursos
Mercantiles); or
(g) Involuntary Bankruptcy. An involuntary case or other proceeding
shall be commenced against the Borrower or any Material Subsidiary seeking
liquidation, reorganization or other relief with respect to it or its debts
under any bankruptcy, insolvency, concurso mercantil or other similar law now
or hereafter in effect (including but not limited to the Ley de Concursos
Mercantiles) or seeking the appointment of a trustee, receiver, liquidator,
custodian or other similar official of it or any substantial part of its
property, and such involuntary case or other proceeding shall remain
undismissed and unstayed for a period of 60 consecutive days; or an order for
relief shall be entered against the Borrower or any Material Subsidiaries
under any bankruptcy, insolvency suspension de pagos or other similar law as
now or hereafter in effect; or
(h) Monetary Judgment. A final judgment or judgments or order or
orders not subject to further appeal for the payment of money in an aggregate
amount in excess of U.S.$50,000,000 shall be rendered against the Borrower
and/or any of its one or more Subsidiaries of the Borrower that are neither
discharged nor bonded in full within 30 days thereafter; or
(i) Pari Passu. The Obligations of the Borrower under this Agreement
or of any Guarantor under this Agreement shall fail to rank at least pari passu
with all other senior unsecured Debt of the Borrower or such Guarantor, as the
case may be; or
(j) Validity of Agreement. The Borrower shall contest the validity or
enforceability of any Transaction Document or shall deny generally the
liability of the Borrower under any Transaction Documents or either Guarantor
shall contest the validity of or the enforceability of their guarantee
hereunder or any obligation of either Guarantor under ARTICLE X hereof shall
not be (or is claimed by either Guarantor not to be) in full force and effect;
(k) Governmental Authority. Any governmental or other consent,
license, approval, permit or authorization which is now or may in the future be
necessary or appropriate under any applicable Requirement of Law for the
execution, delivery, or performance by the Borrower or either Guarantor of any
Transaction Document to which it is a party or to make such Transaction
Document legal, valid, enforceable and admissible in evidence shall not be
obtained or shall be withdrawn, revoked or modified or shall cease to be in
full force and effect or shall be modified in any manner that would have an
adverse effect on the rights or remedies of the Administrative Agent or the
Participating Lenders; or
(l) Expropriation, Etc. Any Governmental Authority shall condemn,
nationalize, seize or otherwise expropriate all or any substantial portion of
the property of, or capital stock issued or owned by, the Borrower or either
Guarantor or take any action that would prevent the Borrower or either
Guarantor from performing its obligations under the Transaction Documents; or
(m) Moratorium; Availability of Foreign Exchange. A moratorium shall
be agreed or declared in respect of any Debt of the Borrower or either
Guarantor or any restriction or requirement not in effect on the date hereof
shall be imposed, whether by legislative enactment, decree, regulation, order
or otherwise, which limits the availability or the transfer of foreign
exchange by the Borrower or either Guarantor for the purpose of performing any
material obligation under any Transaction Document to which it is a party; or
(n) 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 Borrower or either Guarantor to perform its obligations
under this Agreement or any of the other Transaction Documents; or
(o) Change of Ownership or Control. The beneficial ownership (within
the meaning of Rule 13d-3 promulgated by the Securities and Exchange Commission
under the Securities Exchange Act of 1934, as amended) of 20% or more in voting
power of the outstanding voting stock of the Borrower or either Guarantor is
acquired by any Person; provided that the acquisition of beneficial ownership
of capital stock of the Borrower or either Guarantor by Lorenzo H. Zambrano or
any member of his immediate family shall not constitute an Event of Default.
11.02 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 or the relevant Issuing Bank, as applicable:
declare by notice to the Borrower the principal amount of all
outstanding Loans and Standby L/Cs to be forthwith due and payable,
whereupon such principal amount, together with accrued interest
thereon and any fees and all other Obligations accrued hereunder,
shall become immediately due and payable, without presentment,
demand, protest or other notice of any kind, all of which are hereby
expressly waived; provided, however, that in the case of any Event of
Default specified in Section 11.01(f) or (g), without notice or any
other act by the Lenders, the Loans and Standby L/Cs (together with
accrued interest thereon) and all other Obligations of the Borrower
hereunder shall become immediately due and payable without
presentment, demand, protest or other notice of any kind, all of
which are hereby waived by the Borrower;
provided, however, that nothing in this Section 11.02 shall (x) impair the
obligation of any Issuing Bank to make payments in accordance with the Standby
L/Cs or (y) impair the obligation of the Borrower to reimburse each Issuing
Bank for, or the obligation of any Lender to fund its participation in, any
Drawing, made subsequent to the time any remedy provided in this paragraph
shall have been exercised.
11.03 Notice of Default. The Administrative Agent shall give notice to
the Borrower of any event occurring under Section 11.01(a), (b), (c) or (d)
promptly upon being requested to do so by any Participating Lender and shall
thereupon notify all the Participating Lenders thereof.
11.04 Default Interest. In the event of default by the Borrower in the
payment on the due date of any sum due under this Agreement, the Borrower shall
pay interest on demand on such sum from the date of such default to the day of
actual receipt of such sum by the Administrative Agent (as well after as before
judgment) at the rate specified in Section 2.03(d). So long as the default
continues, the default interest rate shall be recalculated on the same basis at
intervals of such duration as the Administrative Agent may select, provided
that the amount of unpaid interest at the above rate accruing during the
preceding period (or such longer period as may be the shortest period permitted
by applicable law for the capitalization of interest) shall be added to the
amount in respect of which the Borrower is in default.
ARTICLE XII
THE ADMINISTRATIVE AGENT
12.01 Appointment and Authorization. Each Participating Lender hereby
irrevocably designates and appoints ING Capital LLC as the Administrative Agent
of such Participating Lender under this Agreement, and each Participating
Lender hereby irrevocably authorizes the Administrative Agent to take such
action on its behalf under the provisions of this Agreement and each other
Transaction Document and to exercise such powers and perform such duties as are
expressly delegated to the Administrative Agent by the terms of this Agreement
or any other Transaction Document, together with such other powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
contained elsewhere in this Agreement or in any other Transaction Document, the
Administrative Agent shall not have any duties or responsibilities, except
those expressly set forth herein, nor shall the Administrative Agent have or be
deemed to have any fiduciary relationship with any Participating Lender, and no
implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Transaction Document
or otherwise exist against the Administrative Agent.
12.02 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.
12.03 Liability of Administrative Agent. Neither the Administrative
Agent nor any of its officers, directors, employees, agents, attorneys-in-fact
or Affiliates shall be (a) liable for any action taken or omitted to be taken
by it or any such Person under or in connection with this Agreement or any
other Transaction Document or the transactions contemplated hereby (except for
its or such Person's own gross negligence or willful misconduct), or (b)
responsible in any manner to any of the Participating Lenders for any recital,
statement, representation or warranty made by the Borrower, the Guarantors or
any officer thereof contained in this Agreement or in any other Transaction
Document, or in any certificate, report, statement or other document referred
to or provided for in, or received by the Administrative Agent under or in
connection with, this Agreement or any other Transaction Document, or for the
validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any other Transaction Document, or for any failure of the
Borrower, the Guarantors or any other party to any Transaction Document to
perform its obligations hereunder or thereunder. Except as otherwise expressly
stated herein, the Administrative Agent shall not be under any obligation to
any Participating Lender to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Agreement or any other Transaction Document, or to inspect the properties,
books or records of the Borrower or the Guarantors.
12.04 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 or
the relevant Issuing Bank, as the case may be, as it deems appropriate and, if
it so requests, it shall first be indemnified to its satisfaction by the
Lenders or the relevant Issuing Bank, as the case may be, against any and all
liability and expense which may be incurred by it by reason of failing to take,
taking or continuing to take any such action. The Administrative Agent shall in
all cases be fully protected in acting, or in refraining from acting, under
this Agreement or any other Transaction Document in accordance with a request
or consent of the Required Lenders (or when expressly required hereby, all the
Lenders), or the relevant Issuing Bank, as the case may be, and such request
and any action taken or failure to act pursuant thereto shall be binding upon
all the Lenders or such Issuing Bank, as the case may be.
(b) For purposes of determining compliance with the conditions
specified in Section 5.01, each Participating 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 Participating Lender for consent, approval, acceptance or satisfaction
on or before the Effective Date.
12.05 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
each Issuing Bank and the Lenders) unless the Administrative Agent shall have
received written notice from a Lender, an Issuing Bank or the Borrower
referring to this Agreement and describing such Default or Event of Default and
stating that such notice is a "Notice of Default". The Administrative Agent
shall promptly notify each 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 Banks.
12.06 Credit Decision. Each Participating Lender expressly
acknowledges that neither the Administrative Agent nor any of its Affiliates,
officers, directors, employees, agents or attorneys-in-fact has made any
representation or warranty to it, and that no act by the Administrative Agent
hereafter taken, including any review of the affairs of the Borrower, the
Guarantors, or any of their Affiliates, shall be deemed to constitute any
representation or warranty by the Administrative Agent to any Participating
Lender. Each Participating Lender acknowledges to the Administrative Agent that
it has, independently and without reliance upon the Administrative Agent or any
other Participating Lender, and based on such documents and information as it
has deemed appropriate, made its own appraisal of and investigation into the
business, prospects, operations, property, financial and other condition and
creditworthiness of the Borrower, the Guarantors, and their Affiliates and all
applicable Participating Lender regulatory laws relating to the transactions
contemplated hereby, and made its own decision to enter into this Agreement.
Each Participating Lender also acknowledges that it will, independently and
without reliance upon the Administrative Agent or any other Participating
Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit analysis, appraisals
and decisions in taking or not taking action under this Agreement and the other
Transaction Documents, and to make such investigations as it deems necessary to
inform itself as to the business, prospects, operations, property, financial
and other condition and creditworthiness of the Borrower or the Guarantors.
Except for notices, reports and other documents expressly herein required to be
furnished to the Participating Lenders by the Administrative Agent, the
Administrative Agent shall not have any duty or responsibility to provide any
Participating Lender with any credit or other information concerning the
business, prospects, operations, property, financial and other condition or
creditworthiness of the Borrower or the Guarantors which may come into the
possession of the Administrative Agent or any of its Affiliates, officers,
directors, employees, agents or attorneys-in-fact.
12.07 Indemnification. Whether or not the transactions contemplated
hereby are consummated, the Lenders agree to indemnify upon demand the
Administrative Agent and its Affiliates, directors, officers, agents and
employees (to the extent not reimbursed by the Borrower and without limiting
the obligation of the Borrower to do so), ratably according to the respective
amounts of their Commitment Percentages in effect on the date the cause for
indemnification arose, from and against any and all claims, liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind whatsoever which may at any time
(including at any time following the payment of the Obligations or the
Termination Date) be imposed on, incurred by or asserted against the
Administrative Agent (or any of its Affiliates, directors, officers, agents and
employees) in any way relating to or arising out of this Agreement or any other
Transaction Document, or any documents contemplated by or referred to herein or
the transactions contemplated hereby or any action taken or omitted by the
Administrative Agent under or in connection with any of the foregoing;
provided, however, that no Lender shall be liable for the payment of any
portion of such claims, liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements to the extent it
results from the gross negligence or willful misconduct of the Administrative
Agent or its Affiliates, directors, officers, agents or employees. Without
limitation of the foregoing, each Lender shall reimburse the Administrative
Agent upon demand for its ratable share of any reasonable and documented costs
or out-of-pocket expenses (including legal fees) incurred by the Administrative
Agent in connection with the preparation, execution, modification, amendment or
enforcement (whether through negotiations, legal proceedings or otherwise) of,
or legal advice in respect of rights or responsibilities under, this Agreement,
any other Transaction Document, or any document contemplated by or referred to
herein, to the extent that the Administrative Agent is not reimbursed for such
expenses by or on behalf of the Borrower.
12.08 Administrative Agent in Individual Capacity. ING Capital LLC may
make loans to, issue letters of credit for the account of, accept deposits from
and generally engage in any kind of banking, trust, financial advisory,
underwriting or other business with the Borrower, the Guarantors or any of
their Affiliates as though ING Capital LLC were not the Administrative Agent
hereunder and without notice to or consent of the Participating Lenders. The
Participating Lenders acknowledge that, pursuant to such activities, ING
Capital LLC, New York Branch or its Affiliates may receive information
regarding the Borrower, the Guarantors and their Affiliates (including
information that may be subject to confidentiality obligations in favor of the
Borrower or the Guarantors) and acknowledge that the Administrative Agent shall
be under no obligation to provide such information to them. With respect to the
Obligations, ING Capital LLC 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 ING
Capital LLC in its individual capacity.
12.09 Successor Administrative Agent. The Administrative Agent may, and at
the request of the Required Lenders and/or the Issuing Banks shall, resign as
Administrative Agent upon 30 days' notice to the Participating Lenders and the
Borrower. If the Administrative Agent resigns under this Agreement, the
Required Lenders and/or the Issuing Banks shall appoint from among the
Participating Lenders a successor agent for the Participating Lenders, which
appointment shall be subject to the approval of the Borrower, such approval not
to be unreasonably withheld (unless a Default or Event of Default shall have
occurred and be continuing, in which case such approval shall not be required).
If no successor agent is appointed prior to the effective date of the
resignation of the Administrative Agent, the Administrative Agent may appoint,
after consulting with the Participating Lenders and the Borrower, a successor
agent from among the Participating 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 XII and Sections 15.04 and 15.05 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement. If no successor Administrative Agent
has accepted the appointment as Administrative Agent by the date which is 30
days following a retiring Administrative Agent's notice of resignation, the
retiring Administrative Agent's resignation shall nevertheless thereupon become
effective and either the Borrower or the retiring Administrative Agent may, on
behalf of the Participating Lenders, appoint a successor Administrative Agent,
which shall be a commercial bank organized or licensed under the laws of the
United States or of any State thereof and having a combined capital and surplus
of at least U.S.$400,000,000.
ARTICLE XIII
THE ISSUING BANKS
13.01 Appointment. Each Lender hereby irrevocably designates and
appoints each of Barclays Bank PLC, New York Branch and ING Bank N.V., as an
Issuing Bank under this Agreement, and each Lender hereby irrevocably
authorizes each of Barclays Bank PLC, New York Branch and ING Bank N.V., as an
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 Banks 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 Banks shall not have any duties or responsibilities, except those
expressly set forth herein or in any other Transaction Document, nor shall the
Issuing Banks 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 Banks; provided,
however, that nothing contained in this ARTICLE XIII shall be deemed to limit
or impair the rights and obligations of the Issuing Banks under the Standby
L/Cs issued hereunder.
13.02 Liability of Issuing Bank. Neither of the Issuing Banks nor any
of their respective officers, directors, employees, agents, attorneys-in-fact
or Affiliates shall be (a) liable for any action taken or omitted to be taken
by it or any such Person under or in connection with this Agreement or any
other Transaction Document (except for its or such Person's own gross
negligence or willful misconduct), or (b) responsible in any manner to any
Lender for any recital, statement, representation or warranty made by the
Borrower or any officer thereof contained in this Agreement or in any other
Transaction Document, or in any certificate, report, statement or other
document referred to or provided for in, or received by the Issuing Banks under
or in connection with, this Agreement or any other Transaction Document, or for
the validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any other Transaction Document, or for any failure of the Borrower
or any other party to any 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 any Standby
L/C issued hereunder, in accordance with the Uniform Customs and Practice for
Documentary Credits and applicable law, the Issuing Banks shall not be under
any obligation to any Lender to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Agreement or any other Transaction Document, or to inspect the properties,
books or records of the Borrower or the Guarantors.
13.03 Reliance by Issuing Banks. Each of the Issuing Banks 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 an Issuing Bank. Except for the issuance of any Standby
L/Cs issued hereunder, in accordance with the terms of this Agreement and the
payment of Drawings, as the case may be, thereunder, each of the Issuing Banks
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 such 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. Each 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 of the Lenders.
13.04 Credit Decision. Each Lender expressly acknowledges that neither
of the Issuing Banks nor any of either of their respective Affiliates,
officers, directors, employees, agents or attorneys-in-fact has made any
representation or warranty to it, and that no act by any Issuing Bank hereafter
taken, including any review of the affairs of the Borrower, the Guarantors or
any of their Affiliates, shall be deemed to constitute any representation or
warranty by any Issuing Bank to any Lender. Each Lender acknowledges to the
Issuing Banks that it has, independently and without reliance upon the Issuing
Banks, and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
prospects, operations, property, financial and other condition and
creditworthiness of the Borrower, the Guarantors and their Affiliates and all
applicable 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 Banks, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit analysis, appraisals
and decisions in taking or not taking action under this Agreement and the other
Transaction Documents, and to make such investigations as it deems necessary to
inform itself as to the business, prospects operations, property, financial and
other condition and creditworthiness of the Borrower and the Guarantors.
13.05 Indemnification. Whether or not the transactions contemplated
hereby are consummated, the Lenders agree to indemnify upon demand from an
Issuing Bank or its Affiliates, directors, officers, agents and employees (to
the extent not reimbursed by the Borrower and without limiting the obligation
of the Borrower to do so in accordance with Section 15.05), ratably according
to the respective amounts of their Commitment Percentages in effect on the date
the cause for indemnification arose, from and against any and all 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 such 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 such 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 such
Issuing Bank's gross negligence or willful misconduct or (b) any untrue
statement of a material fact in the material furnished in writing by such
Issuing Bank to the Borrower 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.
13.06 Issuing Banks in their Individual Capacities. Each of Barclays
Bank PLC and ING Bank N.V. 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 Borrower or any of its Affiliates as though it was not an Issuing Bank
hereunder and without notice to or consent of the Lenders. The Lenders
acknowledge that, pursuant to such activities, each Issuing Bank or its
Affiliates may receive information regarding the Borrower, the Guarantors and
their Affiliates (including information that may be subject to confidentiality
obligations in favor of the Borrower or the Guarantors) and acknowledge that
each Issuing Bank shall be under no obligation to provide such information to
them. With respect to the Obligations, each of Barclays Bank PLC, New York
Branch and ING Bank N.V. shall have the same rights and powers under this
Agreement as any other Lender and may exercise the same as though it were not
an Issuing Bank, and the terms "Lender" and "Lenders" shall include each of ING
Bank N.V. and Barclays Bank PLC, New York Branch in its individual capacity.
13.07 Notice of Default. Neither of Issuing Banks shall be deemed to
have knowledge or notice of any Default or Event of Default unless such Issuing
Bank shall have received written notice from the Administrative Agent, any
Participating Lender, the Borrower or a Guarantor referring to this Agreement
and describing such Default or Event of Default.
ARTICLE XIV
THE JOINT BOOKRUNNERS
14.01 The Joint Bookrunners. The Borrower hereby confirms the
designation of Barclays Capital, the Investment Banking Division of Barclays
Bank PLC, and ING Capital LLC, as arrangers and Joint Bookrunners for the
Revolving Facility and the Standby L/C Facility. The Joint Bookrunners assume
no responsibility or obligation hereunder for servicing, enforcement or
collection of the Obligations, or any duties as agent for the Participating
Lenders. The title "Joint Bookrunner" or "Book-runner" implies no fiduciary
responsibility on the part of the Joint Bookrunners to the Administrative
Agent, or the Participating Lenders and the use of either such title does not
impose on the Joint Bookrunners any duties or obligations under this Agreement
except as may be expressly set forth herein.
14.02 Liability of Joint Bookrunners. Neither the Joint Bookrunners
nor any of their respective officers, directors, employees, agents,
attorneys-in-fact or Affiliates shall be (a) liable for any action lawfully
taken or omitted to be taken by them or any such Person under or in connection
with this Agreement or any other Transaction Document (except for such Joint
Bookrunner's own gross negligence or willful misconduct), or (b) responsible in
any manner to any Lender for any recital, statement, representation or warranty
made by the Borrower or any officer thereof, contained in this Agreement or in
any other Transaction Document, or in any certificate, report, statement or
other document referred to or provided for in, or received by the Arrangers
under or in connection with, this Agreement or any other Transaction Document
or for the validity, effectiveness, genuineness, enforceability or sufficiency
of this Agreement or any other Transaction Document or for any failure of the
Borrower or any other party to any other Transaction Document to perform its
obligations hereunder or thereunder. Except as otherwise expressly stated
herein, the Joint Bookrunners shall not be under any obligation to any Lender
to ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement or any other
Transaction Document, or to inspect the properties, books or records of the
Borrower.
14.03 Joint Bookrunners 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 Borrower or any of its Affiliates as though they were not the
Joint Bookrunners hereunder.
14.04 Credit Decision. Each Lender expressly acknowledges that neither
the Joint Bookrunners nor any of their respective Affiliates, officers,
directors, employees, agents or attorneys-in-fact have made any representation
or warranty to it, and that no act by the Joint Bookrunners hereafter taken,
including any review of the affairs of the Borrower or the Guarantors, shall be
deemed to constitute any representation or warranty by the Joint Bookrunners to
any Lender. Each Lender acknowledges to the Joint Bookrunners that it has,
independently and without reliance upon the Joint Bookrunners, and based on
such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, prospects, operations,
property, financial and other condition and creditworthiness of the Borrower or
the Guarantors and their Affiliates and made its own decision to enter into
this Agreement. Each Lender also acknowledges that it will, independently and
without reliance upon the Joint Bookrunners, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Transaction Documents, and to make such
investigations as it deems necessary to inform itself as to the business,
prospects, operations, property, financial and other condition and
creditworthiness of the Borrower or the Guarantors. The Joint Bookrunners shall
not have any duty or responsibility to provide any Lender with any information
concerning the business, prospects, operations, property, financial and other
condition or creditworthiness of the Borrower which may come into the
possession of the Arrangers or any of their respective officers, directors,
employees, agents, attorneys-in-fact or Affiliates.
ARTICLE XV
MISCELLANEOUS
15.01 Notices.
(a) Except as otherwise expressly provided herein, all notices,
requests, demands or other communications to or upon any party hereunder shall
be in writing (including facsimile transmission) and shall be sent by an
overnight courier service, transmitted by facsimile or delivered by hand to
such party: (i) in the case of the Borrower, the Guarantors, the Issuing Banks,
the Joint Bookrunners 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 Borrower, the Issuing Banks, the
Joint Bookrunners and the Administrative Agent.
(b) Unless otherwise expressly provided for herein, each such notice,
request, demand or other communication shall be effective (i) if sent by
overnight courier service or delivered by hand, upon delivery, (ii) if given by
facsimile, when transmitted to the facsimile number specified pursuant to
paragraph (a) above and confirmation of receipt of a legible copy thereof is
received, or (iii) if given by any other means, when delivered at the address
specified pursuant to paragraph (a) above; provided, however, that notices to
the Administrative Agent under ARTICLE II, III, IV, V or XII shall not be
effective until received.
15.02 Amendments and Waivers. No amendment or waiver of any provision
of this Agreement, and no consent to any departure by the Borrower or any
Guarantor from the terms of this Agreement, shall in any event be effective
unless the same shall be in writing, consented to by the Borrower or the
applicable Guarantors, as the case may be, and acknowledged by the
Administrative Agent (which shall be a purely ministerial action), and signed
or consented to by the Required Lenders, and then such amendment, waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given; provided, however, that no amendment, waiver or
consent shall:
(a) (i) except as specifically provided herein, increase or
decrease the Commitment of any Participating Lender;
(ii) extend the maturity of any of the Obligations,
extend the time of payment of interest thereon, or, other
than as provided in Section 4.02, extend the Termination
Date;
(iii) forgive any Obligation, reduce the principal
amount of the Obligations, reduce the rate of interest
thereon, reduce the amount or change the method of
calculation of any Fee hereunder (other than the Standby L/C
Fees, Agency Fees or Arrangement Fees), or change the
provisions of 4.06(a);
in each case without the consent of the Borrower and each Participating Lender
directly affected thereby;
(b) (i) amend, modify or waive any provision of this Section 15.02;
(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
(except as provided in Article V for Non-Extending Lenders); or
(iii) amend, modify or waive any provision of Section 5.01;
(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 5.02; or
(vi) amend, modify or waive any provision of Section 15.06;
in each case without the consent of the Borrower and all the Participating
Lenders;
(c) amend, modify or waive any provision of ARTICLE XII without the
written consent of the Administrative Agent;
(d) amend, modify or waive any provision of ARTICLE XIV without the
consent of the Joint Bookrunners;
(e) amend, modify or waive any provision of ARTICLE III and XIII
without the consent of the Required Lenders and the Issuing Bank; and
(f) amend, modify or waive any provision of Section 2.02, without the
consent of the Required Lenders and the Swing Line Lenders.
15.03 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of the Administrative Agent or any
Participating Lender, any right, remedy, power or privilege hereunder or under
any other Transaction Document shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, remedy, power or privilege hereunder
or thereunder preclude any other or further exercise thereof or the exercise of
any other right, remedy, power or privilege. The rights and remedies herein
provided are cumulative and not exclusive of any rights or remedies provided by
law.
15.04 Payment of Expenses, Etc. The Borrower agrees to pay on demand
(a) all reasonable and documented out-of-pocket costs and expenses
(including reasonable legal fees and disbursements of special Mexican counsel
to the Administrative Agent, English and New York counsel to the Issuing Banks
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 Borrower and the Joint
Bookrunners;
(b) all reasonable and documented out-of-pocket costs and expenses
incurred by the Administrative Agent and the Issuing Banks 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 Banks and the allocated cost of in-house counsel thereof; and
(c) all reasonable and documented, out-of-pocket costs and expenses
incurred by the Administrative Agent or any Participating 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, such
Participating Lender and the allocated costs of in-house counsel thereof.
15.05 Indemnification. The Borrower agrees to indemnify and hold
harmless the Joint Bookrunners, the Administrative Agent, each 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), but excluding taxes that may be incurred by or asserted or awarded
against any Indemnified Party, in each case arising out of or in connection
with or by reason of (including in connection with any investigation,
litigation or proceeding or preparation of a defense in connection therewith)
(a) the Transaction Documents, any of the transactions contemplated herein or
the actual or proposed use of the proceeds of the Loans or (b) or any
Environmental Action relating in any way to the Borrower or any of its
Subsidiaries, except to the extent such claim, damage, loss, liability or
expense is found in a final, non-appealable judgment by a court of competent
jurisdiction to have resulted from such Indemnified Party's gross negligence or
willful misconduct. In the case of an investigation, litigation or other
proceeding to which the indemnity in this Section 15.05 applies, such indemnity
shall be effective whether or not such investigation, litigation or proceeding
is brought by the Borrower, its directors, shareholders or creditors or an
Indemnified Party or any other Person or any Indemnified Party is otherwise a
party thereto and whether or not the transactions contemplated hereby are
consummated. The Borrower also agrees not to assert any claim against the Joint
Bookrunners, the Administrative Agent, an 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 Joint Bookrunner, the Administrative Agent, an Issuing Bank nor any Lender
shall be deemed to have any fiduciary relationship with the Borrower or the
Guarantor.
15.06 Successor and Assigns.
(a) The provisions of this Agreement shall be binding upon the
Borrower, the Guarantors, their successors and assigns and shall inure to the
benefit of the Issuing Bank, the Joint Bookrunners, the Administrative Agent
and the Lenders and their respective successors and assigns, except that the
Borrower and the Guarantors may not assign or otherwise transfer any of their
rights or obligations under this Agreement without the prior written consent
of all Lenders except pursuant to the terms of this Agreement.
(b) Any Lender (other than an Issuing Bank in its capacity as such)
may at any time, and any Lender, if demanded by the Borrower or an Issuing Bank
pursuant to Section 2.01(d) or Section 4.11 upon at least five Business Days'
notice to such Lender and the Administrative Agent, shall, assign to one or
more commercial banks either (i) registered as a Foreign Financial Institution
and a resident (or having its principal office as a resident, if lending
through a branch or agency) for tax purposes in a jurisdiction that is a party
to an income tax treaty to avoid double taxation with Mexico on the date of
such assignment, qualified to receive the benefits of said treaty or (ii)
organized and existing under the laws of Mexico on the date of such assignment
(each an "Assignee") all, or a proportionate part of all, of its Commitment and
its rights and obligations under this Agreement and the Notes, and such
Assignee shall assume such rights and obligations, pursuant to an Assignment
and Assumption Agreement executed by such Assignee and such transferor Lender,
with (and subject to) the subscribed consent of the Borrower and the
Administrative Agent (which consents shall not be unreasonably withheld or
delayed, and if a Default or Event of Default has occurred and is continuing,
the consent of the Borrower shall not be required) 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 relevant 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 Commitment previously held by it), and the transferor Lender
shall be released from its obligations hereunder to a corresponding extent
(except to the extent the same arose prior to the assignment), and no further
consent or action by any party shall be required. Upon the consummation of any
assignment pursuant to this paragraph (b), the transferor Lender, the
Administrative Agent and the Borrower shall make appropriate arrangements so
that a new Note is issued to the Assignee at the expense of the Assignee. In
connection with any such assignment (other than a transfer by a Lender to one
of its Affiliates), the transferor Lender (or in the case of Section 2.06(b) or
4.11, the Borrower), without prejudice to any claims the Borrower may have
against any Defaulting Lender, shall pay to the Administrative Agent an
administrative fee for processing such assignment in the amount of U.S.$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 15.06; provided, however, that such pledge or
assignment shall not release such Lender from its obligations hereunder.
(d) Any Lender may, without any consent of the Borrower, the
Administrative Agent, the Issuing Banks 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 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 Borrower, the Issuing Banks and the
Administrative Agent, such Lender shall remain responsible for the performance
of its obligations hereunder, and the Borrower and the Administrative Agent
shall continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations under this Agreement. Any agreement
pursuant to which any Lender may grant such a participating interest shall
provide that such Lender shall retain the sole right and responsibility to
enforce the obligations of the Borrower hereunder, including the right to
approve any amendment, modification or waiver of any provision of this
Agreement; provided, however, that such participation agreement may provide
that such Lender will not agree to any modification, amendment or waiver of
this Agreement extending the maturity of any Obligation in respect of which the
participation was granted, or reducing the rate or extending the time for
payment of interest thereon or reducing the principal thereof, or reducing the
amount or basis of calculation of any fees to accrue in respect of the
participation, without the consent of the Participant. The Borrower agrees that
each Participant shall, to the extent provided in its participation agreement,
be entitled to the benefits of Sections 4.07 and 4.10 with respect to its
participating interest as if it were a Lender named herein; provided, however,
that the Borrower shall not be required to pay any greater amounts pursuant to
such Sections than it would have been required to pay but for the sale to such
Participant of such Participant's participation interest. An assignment or
other transfer which is not permitted by paragraph (b) or (c) above shall be
given effect for purposes of this Agreement only to the extent of a
participating interest granted in accordance with this paragraph (d).
(e) Any Lender may, in connection with any assignment or participation
or proposed assignment or participation pursuant to this Section 15.06,
disclose to the Assignee or Participant or proposed Assignee or Participant,
any information relating to the Borrower furnished to such Lender by or on
behalf of the Borrower; provided that, prior to any such disclosure, the
Assignee or Participant or proposed Assignee or Participant shall agree to
preserve the confidentiality of any Confidential Information relating to the
Borrower received by it from such Lender.
15.07 Right of Set-off. In addition to any rights and remedies of the
Participating Lenders provided by law, each such Participating Lender shall
have the right, without prior notice to the Borrower or the Guarantors, any
such notice being expressly waived by the Borrower and the Guarantors to the
extent permitted by applicable law, upon any amount becoming due and payable by
the Borrower or the Guarantors hereunder (whether at the stated maturity, by
acceleration or otherwise) to set-off and appropriate and apply against such
amount any and all deposits (general or special, time or demand, provisional or
final), in any currency, and any other credits, indebtedness or claims, in any
currency, in each case whether direct or indirect, absolute or contingent,
matured or unmatured, at any time held or owing by such Participating Lender,
or any branch or agency thereof to or for the credit or the account of the
Borrower or the Guarantors. Each Participating Lender agrees promptly to notify
the Borrower, or such Guarantor, as the case may be, and the Administrative
Agent after any such set-off and application made by such Participating Lender,
provided that the failure to give such notice shall not affect the validity of
such set-off and application.
15.08 Confidentiality. Neither the Administrative Agent nor any
Participating Lender shall disclose any Confidential Information to any other
Person without the prior written consent of the Borrower, other than (a) to the
Administrative Agent's, or such Participating Lender's Affiliates and their
officers, directors, employees, agents and advisors and, as contemplated by
Section 15.06(e), to actual or prospective Assignees and Participants, and then
only on a confidential basis, (b) as required by any law, rule or regulation
(including as may be required in connection with an audit by the Administrative
Agent's, or such Participating Lender's independent auditors, and as may be
required by any self-regulating organizations) or as may be required by or
necessary in connection with any judicial process and (c) as requested by any
state, federal or foreign authority or examiner regulating banks or banking.
Notwithstanding the foregoing or anything contained in any Transaction Document
to the contrary, the parties (and each employee, representative, or other agent
of the parties) may disclose to any and all persons, without limitation of any
kind, the tax treatment and any facts that may be relevant to the tax structure
of the transactions contemplated by this Agreement, provided, however, that no
party (and no employee, representative, or other agent thereof) shall disclose
any other information that is not relevant to understanding the tax treatment
and tax structure of such transactions (including the identity of any party and
any information that could lead another to determine the identity of any
party), or any other information to the extent that such disclosure could
result in a violation of any federal or state securities law.
15.09 Use of English Language. All certificates, reports, notices and
other documents and communications given or delivered pursuant to this
Agreement shall be in the English language (other than the documents required
to be provided pursuant to Section 5.01(e)(iii), Section 8.01 and Section 8.02
which shall be in the English language or in the Spanish language accompanied
by an English translation or summary). Except in the case of the laws of, or
official communications of, Mexico, the English language version of any such
document shall control the meaning of the matters set forth therein.
15.10 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.
15.11 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 Borrower 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 Borrower and the Guarantors, as well as in
the competent court of their own corporate domicile.
(b) Each of the parties hereto hereby irrevocably waives, to the
fullest extent it may effectively do so, any objection that it may now or
hereafter have to the laying of venue of any such suit, action or proceeding in
any such federal or New York State court or, with respect to the Borrower 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.
15.12 Appointment of Agent for Service of Process.
(a) The Borrower and each Guarantor hereby irrevocably appoints CT
Corporation System, with an office on the date hereof at 111 Eighth Avenue,
13th Floor, New York, New York 10011, as its agent (the "Process Agent") to
receive on behalf of itself and its property, service of copies of the summons
and complaint and any other process which may be served in any such action or
proceeding brought in any New York State or federal court sitting in New York
City. Such service may be made by delivering a copy of such process to the
Borrower or the Guarantor, as the case may be, in care of the Process Agent at
its address specified above, and the Borrower 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 Borrower and each Guarantor,
further agrees to promptly appoint a successor Process Agent in New York City
prior to the termination for any reason of the appointment of the initial
Process Agent.
(b) Nothing in Section 15.11 or in this Section 15.12 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.
15.13 Waiver of Sovereign Immunity. To the extent that the Borrower or
a Guarantor has or hereafter may acquire any immunity from jurisdiction of any
court or from any legal process (whether through service or notice, attachment
prior to judgment, attachment in aid of execution, or otherwise) with respect
to itself or its property, the Borrower or the Guarantor, as the case may be,
hereby irrevocably waives such immunity in respect of its obligations hereunder
to the extent permitted by applicable law. Without limiting the generality of
the foregoing, the Borrower and each Guarantor agrees that the waivers set
forth in this Section 15.13 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.
15.14 Judgment Currency.
(a) All payments made under this Agreement and the other Transaction
Documents shall be made in Dollars. If for the purposes of obtaining judgment
in any court it is necessary to convert a sum due from the Borrower in Dollars
into another currency, the parties hereto agree to the fullest extent that they
may legally and effectively do so that the rate of exchange used shall be that
at which in accordance with normal banking procedures (based on quotations from
four major dealers in the relevant market) the Administrative Agent, each
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, an
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, such Issuing Bank or the Administrative Agent of any sum adjudged
to be so due in such other currency such Lender, such 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 such Issuing Bank, such Lender or the
Administrative Agent, the Borrower and each of the Guarantors agree, to the
fullest extent it may legally do so, as a separate obligation and
notwithstanding any such judgment, to indemnify such Issuing Bank, such Lender
or the Administrative Agent against such resulting loss.
15.15 Counterparts. This Agreement may be executed in any number of
counterparts and by the different parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement. Delivery of an
executed counterpart of a signature page to this Agreement by facsimile shall
be effective as delivery of a manually executed counterpart of this Agreement.
15.16 USA PATRIOT Act. The Participating Lenders, to the extent that
they are subject to the requirements of the USA PATRIOT Act (Title III of Pub.
L. 107-56 (signed into law October 26, 2001)) (the "Act"), hereby notify the
Borrower that pursuant to the requirements of the Act, it is required to
obtain, verify and record information that identifies the Borrower, which
information includes the name and address of the Borrower and other information
that will allow the Issuing Banks to identify the Borrower in accordance with
the Act.
15.17 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.
15.18 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 4.05, 4.07,
4.09, 4.10, 15.04, 15.05, 15.08, 15.09, 15.11 and 15.12, and the obligations of
the Lenders under Sections 12.07 and 13.05, shall survive the termination of
the Commitments, the expiration of Standby L/Cs and, in the case of any Lender
that may assign any interest in its Commitment or obligations hereunder, with
respect to matters occurring before such assignment, shall survive the making
of such assignment to the extent any claim arising thereunder relates to any
period prior to such assignment, notwithstanding that such assigning Lender may
cease to be a "Lender" hereunder.
THIS PAGE IS A SIGNATURE PAGE TO THE CREDIT AGREEMENT, DATED AS OF JUNE 23,
2004, AMONG CEMEX, AS BORROWER, CEMEX MEXICO, S.A. DE C.V. AND EMPRESAS TOLTECA
DE MEXICO, S.A. DE C.V., AS GUARANTORS, BARCLAYS BANK PLC, AS ISSUING BANK AND
DOCUMENTATION AGENT, ING BANK N.V., AS ISSUING BANK, THE SEVERAL LENDERS PARTY
THERETO, BARCLAYS CAPITAL, THE INVESTMENT BANKING DIVISION OF BARCLAYS BANK
PLC, AS JOINT BOOKRUNNER AND ING CAPITAL LLC, AS A JOINT BOOK RUNNER AND
ADMINISTRATIVE AGENT.
CEMEX, S.A. DE C.V.,
as Borrower
By /s/ Humberto Lozano
____________________________
Name: Humberto Lozano
Title: Attorney-in-Fact
THIS PAGE IS A SIGNATURE PAGE TO THE CREDIT AGREEMENT, DATED AS OF JUNE 23,
2004, AMONG CEMEX, AS BORROWER, CEMEX MEXICO, S.A. DE C.V. AND EMPRESAS TOLTECA
DE MEXICO, S.A. DE C.V., AS GUARANTORS, BARCLAYS BANK PLC, AS ISSUING BANK AND
DOCUMENTATION AGENT, ING BANK N.V., AS ISSUING BANK, THE SEVERAL LENDERS PARTY
THERETO, BARCLAYS CAPITAL, THE INVESTMENT BANKING DIVISION OF BARCLAYS BANK
PLC, AS JOINT BOOKRUNNER AND ING CAPITAL LLC, AS A JOINT BOOK RUNNER AND
ADMINISTRATIVE AGENT.
CEMEX MEXICO, S.A. DE C.V.,
as Guarantor
By /s/ Hector Vega
____________________________
Name: Hector Vega
Title: Attorney-in-Fact
THIS PAGE IS A SIGNATURE PAGE TO THE CREDIT AGREEMENT, DATED AS OF JUNE 23,
2004, AMONG CEMEX, AS BORROWER, CEMEX MEXICO, S.A. DE C.V. AND EMPRESAS TOLTECA
DE MEXICO, S.A. DE C.V., AS GUARANTORS, BARCLAYS BANK PLC, AS ISSUING BANK AND
DOCUMENTATION AGENT, ING BANK N.V., AS ISSUING BANK, THE SEVERAL LENDERS PARTY
THERETO, BARCLAYS CAPITAL, THE INVESTMENT BANKING DIVISION OF BARCLAYS BANK
PLC, AS JOINT BOOKRUNNER AND ING CAPITAL LLC, AS A JOINT BOOK RUNNER AND
ADMINISTRATIVE AGENT.
EMPRESAS TOLTECA DE MEXICO,
S.A. DE C.V.,
as Guarantor
By /s/ Hector Vega
____________________________
Name: Hector Vega
Title: Attorney-in-Fact
THIS PAGE IS A SIGNATURE PAGE TO THE CREDIT AGREEMENT, DATED AS OF JUNE 23,
2004, AMONG CEMEX, AS BORROWER, CEMEX MEXICO, S.A. DE C.V. AND EMPRESAS TOLTECA
DE MEXICO, S.A. DE C.V., AS GUARANTORS, BARCLAYS BANK PLC, AS ISSUING BANK AND
DOCUMENTATION AGENT, ING BANK N.V., AS ISSUING BANK, THE SEVERAL LENDERS PARTY
THERETO, BARCLAYS CAPITAL, THE INVESTMENT BANKING DIVISION OF BARCLAYS BANK
PLC, AS JOINT BOOKRUNNER AND ING CAPITAL LLC, AS A JOINT BOOK RUNNER AND
ADMINISTRATIVE AGENT.
ING CAPITAL LLC, as Administrative
Agent
By /s/ Michele M. Mangav
________________________________
Name: Michele M. Mangav
Title: Director
THIS PAGE IS A SIGNATURE PAGE TO THE CREDIT AGREEMENT, DATED AS OF JUNE 23,
2004, AMONG CEMEX, AS BORROWER, CEMEX MEXICO, S.A. DE C.V. AND EMPRESAS TOLTECA
DE MEXICO, S.A. DE C.V., AS GUARANTORS, BARCLAYS BANK PLC, AS ISSUING BANK AND
DOCUMENTATION AGENT, ING BANK N.V., AS ISSUING BANK, THE SEVERAL LENDERS PARTY
THERETO, BARCLAYS CAPITAL, THE INVESTMENT BANKING DIVISION OF BARCLAYS BANK
PLC, AS JOINT BOOKRUNNER AND ING CAPITAL LLC, AS A JOINT BOOK RUNNER AND
ADMINISTRATIVE AGENT.
BARCLAYS BANK PLC
as Issuing Bank, Documentation
Agent and Lender
By /s/ Nicholas A. Bell
________________________________
Name: Nicholas A. Bell
Title: Director
Loan Transaction Management
THIS PAGE IS A SIGNATURE PAGE TO THE CREDIT AGREEMENT, DATED AS OF JUNE 23,
2004, AMONG CEMEX, AS BORROWER, CEMEX MEXICO, S.A. DE C.V. AND EMPRESAS TOLTECA
DE MEXICO, S.A. DE C.V., AS GUARANTORS, BARCLAYS BANK PLC, AS ISSUING BANK AND
DOCUMENTATION AGENT, ING BANK N.V., AS ISSUING BANK, THE SEVERAL LENDERS PARTY
THERETO, BARCLAYS CAPITAL, THE INVESTMENT BANKING DIVISION OF BARCLAYS BANK
PLC, AS JOINT BOOKRUNNER AND ING CAPITAL LLC, AS A JOINT BOOK RUNNER AND
ADMINISTRATIVE AGENT.
ING Bank, N.V. (acting through its
Curacao Branch), as Issuing bank
and Lender
By /s/ A. C. Zulia
________________________________
Name: A. C. Zulia
Title: Senior Manager Transaction
Processing
By /s/ A. B. Rosaria
_______________________________
Name: A. B. Rosaria
Title: Vice President Risk Manager
THIS PAGE IS A SIGNATURE PAGE TO THE CREDIT AGREEMENT, DATED AS OF JUNE 23,
2004, AMONG CEMEX, AS BORROWER, CEMEX MEXICO, S.A. DE C.V. AND EMPRESAS TOLTECA
DE MEXICO, S.A. DE C.V., AS GUARANTORS, BARCLAYS BANK PLC, AS ISSUING BANK AND
DOCUMENTATION AGENT, ING BANK N.V., AS ISSUING BANK, THE SEVERAL LENDERS PARTY
THERETO, BARCLAYS CAPITAL, THE INVESTMENT BANKING DIVISION OF BARCLAYS BANK
PLC, AS JOINT BOOKRUNNER AND ING CAPITAL LLC, AS A JOINT BOOK RUNNER AND
ADMINISTRATIVE AGENT.
BANCO SANTANDER CENTRAL
HISPANO, S.A., New York Branch,
as Lender
By /s/ Ruben Perez-Romo
________________________________
Name: Ruben Perez-Romo
Title: Vice President
____ Corporate Banking
THIS PAGE IS A SIGNATURE PAGE TO THE CREDIT AGREEMENT, DATED AS OF JUNE 23,
2004, AMONG CEMEX, AS BORROWER, CEMEX MEXICO, S.A. DE C.V. AND EMPRESAS TOLTECA
DE MEXICO, S.A. DE C.V., AS GUARANTORS, BARCLAYS BANK PLC, AS ISSUING BANK AND
DOCUMENTATION AGENT, ING BANK N.V., AS ISSUING BANK, THE SEVERAL LENDERS PARTY
THERETO, BARCLAYS CAPITAL, THE INVESTMENT BANKING DIVISION OF BARCLAYS BANK
PLC, AS JOINT BOOKRUNNER AND ING CAPITAL LLC, AS A JOINT BOOK RUNNER AND
ADMINISTRATIVE AGENT.
BBVA BANCOMER, S.A.,
INSTITUCION DE BANCA
MULTIPLE, GRUPO FINANCIERO
BBVA-BANCOMER,
as Lender
By /s/ Carlo David Velazquez Thierry
____________________________________
Name: Carlo David Velazquez Thierry
Title: Apoderado
By /s/ Sergio Antonio del Rio Herrera
____________________________________
Name: Sergio Antonio del Rio Herrera
Title: Apoderado
THIS PAGE IS A SIGNATURE PAGE TO THE CREDIT AGREEMENT, DATED AS OF JUNE 23,
2004, AMONG CEMEX, AS BORROWER, CEMEX MEXICO, S.A. DE C.V. AND EMPRESAS TOLTECA
DE MEXICO, S.A. DE C.V., AS GUARANTORS, BARCLAYS BANK PLC, AS ISSUING BANK AND
DOCUMENTATION AGENT, ING BANK N.V., AS ISSUING BANK, THE SEVERAL LENDERS PARTY
THERETO, BARCLAYS CAPITAL, THE INVESTMENT BANKING DIVISION OF BARCLAYS BANK
PLC, AS JOINT BOOKRUNNER AND ING CAPITAL LLC, AS A JOINT BOOK RUNNER AND
ADMINISTRATIVE AGENT.
MIZUHO CORPORATE BANK, LTD.,
as Lender
By /s/ Takeo Kada
________________________________
Name: Mr. Takeo Kada
Title: Deputy General Manager
THIS PAGE IS A SIGNATURE PAGE TO THE CREDIT AGREEMENT, DATED AS OF JUNE 23,
2004, AMONG CEMEX, AS BORROWER, CEMEX MEXICO, S.A. DE C.V. AND EMPRESAS TOLTECA
DE MEXICO, S.A. DE C.V., AS GUARANTORS, BARCLAYS BANK PLC, AS ISSUING BANK AND
DOCUMENTATION AGENT, ING BANK N.V., AS ISSUING BANK, THE SEVERAL LENDERS PARTY
THERETO, BARCLAYS CAPITAL, THE INVESTMENT BANKING DIVISION OF BARCLAYS BANK
PLC, AS JOINT BOOKRUNNER AND ING CAPITAL LLC, AS A JOINT BOOK RUNNER AND
ADMINISTRATIVE AGENT.
THE BANK OF NOVA SCOTIA,
as Lender
By /s/ Kevin C. Clark
________________________________
Name: Kevin C. Clark
Title: Managing Director,
International Banking
THIS PAGE IS A SIGNATURE PAGE TO THE CREDIT AGREEMENT, DATED AS OF JUNE 23,
2004, AMONG CEMEX, AS BORROWER, CEMEX MEXICO, S.A. DE C.V. AND EMPRESAS TOLTECA
DE MEXICO, S.A. DE C.V., AS GUARANTORS, BARCLAYS BANK PLC, AS ISSUING BANK AND
DOCUMENTATION AGENT, ING BANK N.V., AS ISSUING BANK, THE SEVERAL LENDERS PARTY
THERETO, BARCLAYS CAPITAL, THE INVESTMENT BANKING DIVISION OF BARCLAYS BANK
PLC, AS JOINT BOOKRUNNER AND ING CAPITAL LLC, AS A JOINT BOOK RUNNER AND
ADMINISTRATIVE AGENT.
THE BANK OF TOKYO-MITSUBISHI LTD.,
as Lender
By /s/ Hiroshi Azuma
________________________________
Name: Hiroshi Azuma
Title: VP & Manager
THIS PAGE IS A SIGNATURE PAGE TO THE CREDIT AGREEMENT, DATED AS OF JUNE 23,
2004, AMONG CEMEX, AS BORROWER, CEMEX MEXICO, S.A. DE C.V. AND EMPRESAS TOLTECA
DE MEXICO, S.A. DE C.V., AS GUARANTORS, BARCLAYS BANK PLC, AS ISSUING BANK AND
DOCUMENTATION AGENT, ING BANK N.V., AS ISSUING BANK, THE SEVERAL LENDERS PARTY
THERETO, BARCLAYS CAPITAL, THE INVESTMENT BANKING DIVISION OF BARCLAYS BANK
PLC, AS JOINT BOOKRUNNER AND ING CAPITAL LLC, AS A JOINT BOOK RUNNER AND
ADMINISTRATIVE AGENT.
ABN AMRO BANK N.V.,
as Lender
By /s/ Michel van Schaurdenbur
________________________________
Name: Michel van Schaurdenbur
Title: Senior Managing Director
By /s/ Oscar Herrera
________________________________
Name: Oscar Herrera
Title: Business Manager CPM NA
THIS PAGE IS A SIGNATURE PAGE TO THE CREDIT AGREEMENT, DATED AS OF JUNE 23,
2004, AMONG CEMEX, AS BORROWER, CEMEX MEXICO, S.A. DE C.V. AND EMPRESAS TOLTECA
DE MEXICO, S.A. DE C.V., AS GUARANTORS, BARCLAYS BANK PLC, AS ISSUING BANK AND
DOCUMENTATION AGENT, ING BANK N.V., AS ISSUING BANK, THE SEVERAL LENDERS PARTY
THERETO, BARCLAYS CAPITAL, THE INVESTMENT BANKING DIVISION OF BARCLAYS BANK
PLC, AS JOINT BOOKRUNNER AND ING CAPITAL LLC, AS A JOINT BOOK RUNNER AND
ADMINISTRATIVE AGENT.
BANK OF AMERICA, N.A.
as Lender
By /s/ Ernesto Alatorre
________________________________
Name: Ernesto Alatorre
Title: Vice President
THIS PAGE IS A SIGNATURE PAGE TO THE CREDIT AGREEMENT, DATED AS OF JUNE 23,
2004, AMONG CEMEX, AS BORROWER, CEMEX MEXICO, S.A. DE C.V. AND EMPRESAS TOLTECA
DE MEXICO, S.A. DE C.V., AS GUARANTORS, BARCLAYS BANK PLC, AS ISSUING BANK AND
DOCUMENTATION AGENT, ING BANK N.V., AS ISSUING BANK, THE SEVERAL LENDERS PARTY
THERETO, BARCLAYS CAPITAL, THE INVESTMENT BANKING DIVISION OF BARCLAYS BANK
PLC, AS JOINT BOOKRUNNER AND ING CAPITAL LLC, AS A JOINT BOOK RUNNER AND
ADMINISTRATIVE AGENT.
CALYON NEW YORK BRANCH,
as Lender
By /s/ Attila Coach
________________________________
Name: Attila Coach
Title: Managing Director
By /s/ Phillippe Soustra
________________________________
Name: Phillippe Soustra
Title: Executive Vice President
THIS PAGE IS A SIGNATURE PAGE TO THE CREDIT AGREEMENT, DATED AS OF JUNE 23,
2004, AMONG CEMEX, AS BORROWER, CEMEX MEXICO, S.A. DE C.V. AND EMPRESAS TOLTECA
DE MEXICO, S.A. DE C.V., AS GUARANTORS, BARCLAYS BANK PLC, AS ISSUING BANK AND
DOCUMENTATION AGENT, ING BANK N.V., AS ISSUING BANK, THE SEVERAL LENDERS PARTY
THERETO, BARCLAYS CAPITAL, THE INVESTMENT BANKING DIVISION OF BARCLAYS BANK
PLC, AS JOINT BOOKRUNNER AND ING CAPITAL LLC, AS A JOINT BOOK RUNNER AND
ADMINISTRATIVE AGENT.
CITIBANK, N.A. NASSAU, Bahamas
Branch, as Lender
By /s/ Margaret A. Butler
________________________________
Name: Margaret A. Butler
Title: Vice President
THIS PAGE IS A SIGNATURE PAGE TO THE CREDIT AGREEMENT, DATED AS OF JUNE 23,
2004, AMONG CEMEX, AS BORROWER, CEMEX MEXICO, S.A. DE C.V. AND EMPRESAS TOLTECA
DE MEXICO, S.A. DE C.V., AS GUARANTORS, BARCLAYS BANK PLC, AS ISSUING BANK AND
DOCUMENTATION AGENT, ING BANK N.V., AS ISSUING BANK, THE SEVERAL LENDERS PARTY
THERETO, BARCLAYS CAPITAL, THE INVESTMENT BANKING DIVISION OF BARCLAYS BANK
PLC, AS JOINT BOOKRUNNER AND ING CAPITAL LLC, AS A JOINT BOOK RUNNER AND
ADMINISTRATIVE AGENT.
STANDARD CHARTERED BANK,
as Lender
By /s/ Monica Molina
________________________________
Name: Monica Molina A2385
Title: Assistant Vice President
By /s/ Ana M. Marchan
________________________________
Name: Ana M. Marchan
Title: Assistant Vice President
A2380
THIS PAGE IS A SIGNATURE PAGE TO THE CREDIT AGREEMENT, DATED AS OF JUNE 23,
2004, AMONG CEMEX, AS BORROWER, CEMEX MEXICO, S.A. DE C.V. AND EMPRESAS TOLTECA
DE MEXICO, S.A. DE C.V., AS GUARANTORS, BARCLAYS BANK PLC, AS ISSUING BANK AND
DOCUMENTATION AGENT, ING BANK N.V., AS ISSUING BANK, THE SEVERAL LENDERS PARTY
THERETO, BARCLAYS CAPITAL, THE INVESTMENT BANKING DIVISION OF BARCLAYS BANK
PLC, AS JOINT BOOKRUNNER AND ING CAPITAL LLC, AS A JOINT BOOK RUNNER AND
ADMINISTRATIVE AGENT.
BAYERISCHE LANDESBANK,
Cayman Islands Branch, as Lender
By /s/ Dietmar Rieg
________________________________
Name: Dietmar Rieg
Title: Senior Vice President
By /s/ James H. Boyle
________________________________
Name: James H. Boyle
Title: Vice President
THIS PAGE IS A SIGNATURE PAGE TO THE CREDIT AGREEMENT, DATED AS OF JUNE 23,
2004, AMONG CEMEX, AS BORROWER, CEMEX MEXICO, S.A. DE C.V. AND EMPRESAS TOLTECA
DE MEXICO, S.A. DE C.V., AS GUARANTORS, BARCLAYS BANK PLC, AS ISSUING BANK AND
DOCUMENTATION AGENT, ING BANK N.V., AS ISSUING BANK, THE SEVERAL LENDERS PARTY
THERETO, BARCLAYS CAPITAL, THE INVESTMENT BANKING DIVISION OF BARCLAYS BANK
PLC, AS JOINT BOOKRUNNER AND ING CAPITAL LLC, AS A JOINT BOOK RUNNER AND
ADMINISTRATIVE AGENT.
HSBC MEXICO, S.A., INSTITUCION
DE BANCA MULTIPLE, GRUPO
FINANCIERO HSBC, as Lender
By /s/ Jorge Casas De La Torre
________________________________
Name: Jorge Casas De La Torre
Title: Corporate Banking
THIS PAGE IS A SIGNATURE PAGE TO THE CREDIT AGREEMENT, DATED AS OF JUNE 23,
2004, AMONG CEMEX, AS BORROWER, CEMEX MEXICO, S.A. DE C.V. AND EMPRESAS TOLTECA
DE MEXICO, S.A. DE C.V., AS GUARANTORS, BARCLAYS BANK PLC, AS ISSUING BANK AND
DOCUMENTATION AGENT, ING BANK N.V., AS ISSUING BANK, THE SEVERAL LENDERS PARTY
THERETO, BARCLAYS CAPITAL, THE INVESTMENT BANKING DIVISION OF BARCLAYS BANK
PLC, AS JOINT BOOKRUNNER AND ING CAPITAL LLC, AS A JOINT BOOK RUNNER AND
ADMINISTRATIVE AGENT.
WACHOVIA BANK, NATIONAL
ASSOCIATION, as Lender
By /s/ Laura McInnes
________________________________
Name: Laura McInnes
Title: Director
THIS PAGE IS A SIGNATURE PAGE TO THE CREDIT AGREEMENT, DATED AS OF JUNE 23,
2004, AMONG CEMEX, AS BORROWER, CEMEX MEXICO, S.A. DE C.V. AND EMPRESAS TOLTECA
DE MEXICO, S.A. DE C.V., AS GUARANTORS, BARCLAYS BANK PLC, AS ISSUING BANK AND
DOCUMENTATION AGENT, ING BANK N.V., AS ISSUING BANK, THE SEVERAL LENDERS PARTY
THERETO, BARCLAYS CAPITAL, THE INVESTMENT BANKING DIVISION OF BARCLAYS BANK
PLC, AS JOINT BOOKRUNNER AND ING CAPITAL LLC, AS A JOINT BOOK RUNNER AND
ADMINISTRATIVE AGENT.
WESTLB AG, New York Branch,
as Lender
By /s/ Richard J. Pearse
________________________________
Name: Richard J. Pearse
Title: Executive Director
By /s/ Daniel Hitchcock
________________________________
Name: Daniel Hitchcock
Title: Director
Credit Americas
THIS PAGE IS A SIGNATURE PAGE TO THE CREDIT AGREEMENT, DATED AS OF JUNE 23,
2004, AMONG CEMEX, AS BORROWER, CEMEX MEXICO, S.A. DE C.V. AND EMPRESAS TOLTECA
DE MEXICO, S.A. DE C.V., AS GUARANTORS, BARCLAYS BANK PLC, AS ISSUING BANK AND
DOCUMENTATION AGENT, ING BANK N.V., AS ISSUING BANK, THE SEVERAL LENDERS PARTY
THERETO, BARCLAYS CAPITAL, THE INVESTMENT BANKING DIVISION OF BARCLAYS BANK
PLC, AS JOINT BOOKRUNNER AND ING CAPITAL LLC, AS A JOINT BOOK RUNNER AND
ADMINISTRATIVE AGENT.
BANCO DE CREDITO B
INVERSIONES,
as Lender
By /s/ Roberto Gatica
________________________________
Name: Roberto Gatica
Title: V.P. Commercial Lending
By /s/ Maria Grisel Vega
________________________________
Name: Maria Grisel Vega
Title: First Vice President,
Comptroller
Bci Miami Branch
THIS PAGE IS A SIGNATURE PAGE TO THE CREDIT AGREEMENT, DATED AS OF JUNE 23,
2004, AMONG CEMEX, AS BORROWER, CEMEX MEXICO, S.A. DE C.V. AND EMPRESAS TOLTECA
DE MEXICO, S.A. DE C.V., AS GUARANTORS, BARCLAYS BANK PLC, AS ISSUING BANK AND
DOCUMENTATION AGENT, ING BANK N.V., AS ISSUING BANK, THE SEVERAL LENDERS PARTY
THERETO, BARCLAYS CAPITAL, THE INVESTMENT BANKING DIVISION OF BARCLAYS BANK
PLC, AS JOINT BOOKRUNNER AND ING CAPITAL LLC, AS A JOINT BOOK RUNNER AND
ADMINISTRATIVE AGENT.
COMERICA BANK, as Lender
By /s/ Robert J. Hurley
________________________________
Name: Robert J. Hurley
Title: Assistant Vice President
THIS PAGE IS A SIGNATURE PAGE TO THE CREDIT AGREEMENT, DATED AS OF JUNE 23,
2004, AMONG CEMEX, AS BORROWER, CEMEX MEXICO, S.A. DE C.V. AND EMPRESAS TOLTECA
DE MEXICO, S.A. DE C.V., AS GUARANTORS, BARCLAYS BANK PLC, AS ISSUING BANK AND
DOCUMENTATION AGENT, ING BANK N.V., AS ISSUING BANK, THE SEVERAL LENDERS PARTY
THERETO, BARCLAYS CAPITAL, THE INVESTMENT BANKING DIVISION OF BARCLAYS BANK
PLC, AS JOINT BOOKRUNNER AND ING CAPITAL LLC, AS A JOINT BOOK RUNNER AND
ADMINISTRATIVE AGENT.
DEUTSCHE BANK AG New York Branch,
as Lender
By /s/ Bettina Maier
________________________________
Name: Bettina Maier
Title: Vice President
By /s/ Frank Farsi
________________________________
Name: Frank Farsi
Title: Director
THIS PAGE IS A SIGNATURE PAGE TO THE CREDIT AGREEMENT, DATED AS OF JUNE 23,
2004, AMONG CEMEX, AS BORROWER, CEMEX MEXICO, S.A. DE C.V. AND EMPRESAS TOLTECA
DE MEXICO, S.A. DE C.V., AS GUARANTORS, BARCLAYS BANK PLC, AS ISSUING BANK AND
DOCUMENTATION AGENT, ING BANK N.V., AS ISSUING BANK, THE SEVERAL LENDERS PARTY
THERETO, BARCLAYS CAPITAL, THE INVESTMENT BANKING DIVISION OF BARCLAYS BANK
PLC, AS JOINT BOOKRUNNER AND ING CAPITAL LLC, AS A JOINT BOOK RUNNER AND
ADMINISTRATIVE AGENT.
DRESDNER BANK AG, acting through
its Lending Offices at Dresdner Bank AG,
New York and Grand Cayman Branches,
as Lender
By /s/ Brian K. Schneider
________________________________
Name: Brian K. Schneider
Title: Vice President
By /s/ Enrique Bustamante
________________________________
Name: Enrique Bustamante
Title: Managing Director
THIS PAGE IS A SIGNATURE PAGE TO THE CREDIT AGREEMENT, DATED AS OF JUNE 23,
2004, AMONG CEMEX, AS BORROWER, CEMEX MEXICO, S.A. DE C.V. AND EMPRESAS TOLTECA
DE MEXICO, S.A. DE C.V., AS GUARANTORS, BARCLAYS BANK PLC, AS ISSUING BANK AND
DOCUMENTATION AGENT, ING BANK N.V., AS ISSUING BANK, THE SEVERAL LENDERS PARTY
THERETO, BARCLAYS CAPITAL, THE INVESTMENT BANKING DIVISION OF BARCLAYS BANK
PLC, AS JOINT BOOKRUNNER AND ING CAPITAL LLC, AS A JOINT BOOK RUNNER AND
ADMINISTRATIVE AGENT.
BAYERISCHE HYPO-UND
VEREINSBANK AG., as Lender
By /s/ Maria Lago
________________________________
Name: Maria Lago
Title: Associate Director
By /s/ Lara Cunha
________________________________
Name: Lara Cunha
Title: Associate Director
THIS PAGE IS A SIGNATURE PAGE TO THE CREDIT AGREEMENT, DATED AS OF JUNE 23,
2004, AMONG CEMEX, AS BORROWER, CEMEX MEXICO, S.A. DE C.V. AND EMPRESAS TOLTECA
DE MEXICO, S.A. DE C.V., AS GUARANTORS, BARCLAYS BANK PLC, AS ISSUING BANK AND
DOCUMENTATION AGENT, ING BANK N.V., AS ISSUING BANK, THE SEVERAL LENDERS PARTY
THERETO, BARCLAYS CAPITAL, THE INVESTMENT BANKING DIVISION OF BARCLAYS BANK
PLC, AS JOINT BOOKRUNNER AND ING CAPITAL LLC, AS A JOINT BOOK RUNNER AND
ADMINISTRATIVE AGENT.
SANPAOLO IMI S.p.A., as Lender
By /s/ Benato Carducci
________________________________
Name: Benato Carducci
Title: General Manager
By /s/ Barbara Bassi
________________________________
Name: Barbara Bassi
Title: Vice President
THIS PAGE IS A SIGNATURE PAGE TO THE CREDIT AGREEMENT, DATED AS OF JUNE 23,
2004, AMONG CEMEX, AS BORROWER, CEMEX MEXICO, S.A. DE C.V. AND EMPRESAS TOLTECA
DE MEXICO, S.A. DE C.V., AS GUARANTORS, BARCLAYS BANK PLC, AS ISSUING BANK AND
DOCUMENTATION AGENT, ING BANK N.V., AS ISSUING BANK, THE SEVERAL LENDERS PARTY
THERETO, BARCLAYS CAPITAL, THE INVESTMENT BANKING DIVISION OF BARCLAYS BANK
PLC, AS JOINT BOOKRUNNER AND ING CAPITAL LLC, AS A JOINT BOOK RUNNER AND
ADMINISTRATIVE AGENT.
BANCO DI ROMA, S.p.A., New York
Branch, as Lender
By /s/ Alessandro Paoli
________________________________
Name: Alessandro Paoli
Title: Vice President
By /s/ Claudio Perna
________________________________
Name: Claudio Perna
Title: Exec. Vice President
THIS PAGE IS A SIGNATURE PAGE TO THE CREDIT AGREEMENT, DATED AS OF JUNE 23,
2004, AMONG CEMEX, AS BORROWER, CEMEX MEXICO, S.A. DE C.V. AND EMPRESAS TOLTECA
DE MEXICO, S.A. DE C.V., AS GUARANTORS, BARCLAYS BANK PLC, AS ISSUING BANK AND
DOCUMENTATION AGENT, ING BANK N.V., AS ISSUING BANK, THE SEVERAL LENDERS PARTY
THERETO, BARCLAYS CAPITAL, THE INVESTMENT BANKING DIVISION OF BARCLAYS BANK
PLC, AS JOINT BOOKRUNNER AND ING CAPITAL LLC, AS A JOINT BOOK RUNNER AND
ADMINISTRATIVE AGENT.
BNP PARIBAS PANAMA BRANCH,
as Lender
By /s/ Christian Giraudon
________________________________
Name: Christian Giraudon
Title: General Manager
THIS PAGE IS A SIGNATURE PAGE TO THE CREDIT AGREEMENT, DATED AS OF JUNE 23,
2004, AMONG CEMEX, AS BORROWER, CEMEX MEXICO, S.A. DE C.V. AND EMPRESAS TOLTECA
DE MEXICO, S.A. DE C.V., AS GUARANTORS, BARCLAYS BANK PLC, AS ISSUING BANK AND
DOCUMENTATION AGENT, ING BANK N.V., AS ISSUING BANK, THE SEVERAL LENDERS PARTY
THERETO, BARCLAYS CAPITAL, THE INVESTMENT BANKING DIVISION OF BARCLAYS BANK
PLC, AS JOINT BOOKRUNNER AND ING CAPITAL LLC, AS A JOINT BOOK RUNNER AND
ADMINISTRATIVE AGENT.
JPMORGAN CHASE BANK,
as Lender
By /s/ Linda M. Meyer
________________________________
Name: Linda M. Meyer
Title: Vice President
THIS PAGE IS A SIGNATURE PAGE TO THE CREDIT AGREEMENT, DATED AS OF JUNE 23,
2004, AMONG CEMEX, AS BORROWER, CEMEX MEXICO, S.A. DE C.V. AND EMPRESAS TOLTECA
DE MEXICO, S.A. DE C.V., AS GUARANTORS, BARCLAYS BANK PLC, AS ISSUING BANK AND
DOCUMENTATION AGENT, ING BANK N.V., AS ISSUING BANK, THE SEVERAL LENDERS PARTY
THERETO, BARCLAYS CAPITAL, THE INVESTMENT BANKING DIVISION OF BARCLAYS BANK
PLC, AS JOINT BOOKRUNNER AND ING CAPITAL LLC, AS A JOINT BOOK RUNNER AND
ADMINISTRATIVE AGENT.
SOCIETE GENERALE
as Lender
By /s/ Alejandro Grenier
________________________________
Name: Alejandro Grenier
Title: Vice President
SCHEDULE 1.01(a)
Commitments
- ------------------------------------------ --------------------------------- --------------------------------
Commitment Commitment
Lender Amount Percentage
- ------------------------------------------ --------------------------------- --------------------------------
Barclays Bank PLC $50,000,000 6.25%
- ------------------------------------------ --------------------------------- --------------------------------
ING Bank N.V. $50,000,000 6.25%
- ------------------------------------------ --------------------------------- --------------------------------
Banco Santander Central $50,000,000 6.25%
Hispano, S.A., New York
Branch
- ------------------------------------------ --------------------------------- --------------------------------
BBVA Bancomer, S.A., $50,000,000 6.25%
Institucion de Banca
Multiple, Grupo
Financiero BBVA- Bancomer
- ------------------------------------------ --------------------------------- --------------------------------
Mizuho Corporate Bank, $50,000,000 6.25%
LTD.
- ------------------------------------------ --------------------------------- --------------------------------
The Bank of Nova Scotia $50,000,000 6.25%
- ------------------------------------------ --------------------------------- --------------------------------
The Bank of Tokyo- $50,000,000 6.25%
Mitsubishi, Ltd.
- ------------------------------------------ --------------------------------- --------------------------------
ABN Amro Bank N.V. $35,000,000 4.375%
- ------------------------------------------ --------------------------------- --------------------------------
Bank of America, N.A. $35,000,000 4.375%
- ------------------------------------------ --------------------------------- --------------------------------
Calyon New York Branch $35,000,000 4.375%
- ------------------------------------------ --------------------------------- --------------------------------
Citibank, N.A. Nassau, $35,000,000 4.375%
Bahamas Branch
- ------------------------------------------ --------------------------------- --------------------------------
Standard Chartered Bank $35,000,000 4.375%
- ------------------------------------------ --------------------------------- --------------------------------
Bayerische Landesbank $30,000,000 3.75%
- ------------------------------------------ --------------------------------- --------------------------------
HSBC Mexico, S.A., $30,000,000 3.75%
Institucion de Banca
Multiple, Grupo
Financiero HSBC
- ------------------------------------------ --------------------------------- --------------------------------
Wachovia Bank, National $30,000,000 3.75%
Association
- ------------------------------------------ --------------------------------- --------------------------------
WestLB AG, New York $25,000,000 3.125%
Branch
- ------------------------------------------ --------------------------------- --------------------------------
Banco de Credito e $20,000,000 2.5%
Inversiones
- ------------------------------------------ --------------------------------- --------------------------------
Comerica Bank $20,000,000 2.5%
- ------------------------------------------ --------------------------------- --------------------------------
Deutsche Bank AG New $20,000,000 2.5%
York Branch
- ------------------------------------------ --------------------------------- --------------------------------
Dresdner Bank AG, $20,000,000 2.5%
acting through its
Lending Offices at
Dresdner Bank AG, New
York and Grand Cayman
Branches
- ------------------------------------------ --------------------------------- --------------------------------
Bayerische Hypo-und $20,000,000 2.5%
Vereinsbank AG
- ------------------------------------------ --------------------------------- --------------------------------
SANPAOLO IMI S.p.A. $20,000,000 2.5%
- ------------------------------------------ --------------------------------- --------------------------------
Banca di Roma, S.p.A., $10,000,000 1.25%
New York Branch
- ------------------------------------------ --------------------------------- --------------------------------
BNP Paribas Panama $10,000,000 1.25%
Branch
- ------------------------------------------ --------------------------------- --------------------------------
JPMorgan Chase Bank $10,000,000 1.25%
- ------------------------------------------ --------------------------------- --------------------------------
Societe Generale $10,000,000 1.25%
- ------------------------------------------ --------------------------------- --------------------------------
SCHEDULE 1.01(b)
Lending Offices
- ------------------------------------------------------- -----------------------------------------------------
Lender Lending Offices
- ------------------------------------------------------- -----------------------------------------------------
Barclays Bank PLC 200 Park Avenue
New York, New York 10166
Attention: Thomas Janson
Telephone: (212) 412-6888
Fax: (212) 412-7600
Email: Thomas.janson@barcap.com
- ------------------------------------------------------- -----------------------------------------------------
ING Bank N.V. 1325 Avenue of the Americas, 8th Floor New York,
New York 10019
Attention: Vicente Leon
Telephone: (646) 424-6054
Email: vicente.leon@americas.ing.com
- ------------------------------------------------------- -----------------------------------------------------
Banco Santander Central Hispano, S.A., New York Branch 45 East 53rd Street
New York, New York 10022
Attention: Ruben Perez-Romo
Telephone: (212) 350-0645
Fax: (212) 407-1141
- ------------------------------------------------------- -----------------------------------------------------
BBVA Bancomer, S.A., Institucion de Banca Multiple, Ave. Vasconcelos #101 Ote. Piso 1
Grupo Financiero BBVA-Bancomer Col. Residencial San Agustin
66260 Garza Garcia, N.L.
Attention: Jesus Villarruel Ruvalcaba
Telephone: (52-81) 8368-6937
Fax: (52-81) 8368-6980
- ------------------------------------------------------- -----------------------------------------------------
Mizuho Coroporate Bank, LTD. 1251 Avenue of the Americas, 32nd Floor
New York, New York 10020
Attention: David Costa
Telephone: (212) 282-4964
Fax: (212) 282-4385
- ------------------------------------------------------- -----------------------------------------------------
The Bank of Nova Scotia Calzada del Valle 202, Ote, Piso 1
Col. Del Valle Garza Garcia
Nuevo Leon, Mexico 66220
Attention: Armando Contel
Telephone: (52-81) 8318-3099
Fax: (52-81) 8318-3072
- ------------------------------------------------------- -----------------------------------------------------
The Bank of Tokyo-Mitsubishi, Ltd. 1251 Avenue of the Americas
New York, New York 10020-1104
Attention: Hiroshi Azuma
Telephone: (212) 782-4184
Fax: (212) 782-6400
E-mail: hazuma@btmna.com
- ------------------------------------------------------- -----------------------------------------------------
ABN Amro Bank N.V. Prolongacion Reforma 600-320
Col. Santa Fe Pena Blanca
Mexico D.F., 01210 Mexico
Attention: Rosalia Noble
Telephone: (52-55) 5257-7842
Fax: (52-55) 5257-7829
- ------------------------------------------------------- -----------------------------------------------------
Bank of America, N.A. 100 SE 2nd St., 31st Floor
Miami, FL 33131
Attention: Ana Kube
Telephone: (305) 533-2486
Fax: (52-55) 5230-6317
- ------------------------------------------------------- -----------------------------------------------------
Calyon New York Branch 1301 Avenue of the Americas
New York, New York 10019
Attention: Ronald Finn
Telephone: (212) 261-7050
- ------------------------------------------------------- -----------------------------------------------------
Citibank, N.A. Nassau, Bahamas Branch Ave. Roble 701, 5o. Piso
Col. Valle del Campestre
66260 Garza Garcia NL
Attention: Ines Vargas
Telephone: (52-81) 1226-8525
Fax: (52-81) 1226-8538
- ------------------------------------------------------- -----------------------------------------------------
Standard Chartered Bank One Madison Avenue
New York, New York 10010
Attn: Larry Fitzgerald
Phone : (212) 667-0107
Fax: (212) 667-0568
- ------------------------------------------------------- -----------------------------------------------------
Bayerische Landesbank 550 Lexington Ave.
New York, New York 10022
Attention: Dietmar Rieg
Telephone: (212) 310-9842
Fax: (212) 230-9166
- ------------------------------------------------------- -----------------------------------------------------
HSBC Mexico, S.A., Institucion de Banca Multiple, Arq. Pedro Ramirez Vazquez 200-10,
Grupo Financiero HSBC Piso 1
San Pedro Garza Garcia, NL CP 66269
Attention: Cordelia Gonzalez Flores
Telephone: (52-81) 8133-4528
Fax: (52-81) 8133-4558
E-mail: cordelia.gonzalez@hsbc.com.mx
- ------------------------------------------------------- -----------------------------------------------------
Wachovia Bank, National Association 191 Peachtree St., NE
Internal Mail Code: GA8o88
Atlanta, GA 30303
Attention: Kay Reedy
Telephone (404) 332-5262
Fax: (404) 332-5905
E-mail: kathleen.reedy@wachovia.com
- ------------------------------------------------------- -----------------------------------------------------
WestLB AG, New York Branch 1211 Avenue of the Americas
New York, New York 10036
Attention: Ricardo Fernandez
Telephone: (212) 852-6122
Fax: (212) 597-1428
- ------------------------------------------------------- -----------------------------------------------------
Banco de Credito e Inversiones 701 Brickell Ave. Suite 1450
Miami, FL 33131-2813
Attention: Roberto Gatica
Telephone: (305) 347-3330
Fax: (305) 347-3332
- ------------------------------------------------------- -----------------------------------------------------
Comerica Bank 500 Woodward Ave.
International Dept., MC 3330
Detroit, Michigan 48226
Attention: Andres Cueva
Telephone: (52-81) 8368 0316
Fax: (52-81) 8368 0048
- ------------------------------------------------------- -----------------------------------------------------
Deutsche Bank AG New York Branch 60 Wall Street
New York, New York 10005
Attention: Bettina Maier
Tel: (212) 250-5035
Fax: (212) 797-0510
- ------------------------------------------------------- -----------------------------------------------------
Dresdner Bank AG, acting through its Lending Offices 75 Wall Street
at Dresdner Bank AG, New York and Grand Cayman New York, New York 10005
Branches Attention: Brian Schneider
Phone: (212) 895-1674
Fax: (212) 895-1560
- ------------------------------------------------------- -----------------------------------------------------
Bayerische Hypo-und Vereinsbank AG New York Branch / IBF Branch
150 East 42nd St, 31st Floor
New York, New York 10017
Attention: Lara Cunha / Maria Lago Telephone: (212)
672-5442 / 5899
Fax: (212) 672-5597
E-mail: Lara_Cunha@hvbamericas.com
Maria_Lago@hvbamericas.com
- ------------------------------------------------------- -----------------------------------------------------
SANPAOLO IMI S.p.A. 245 Park Avenue, 35th Floor
New York, New York 10167
Attention: Barbara Bassi
Telephone: (213) 692-3141
Fax: (213) 599-5307
E-mail: barbara.bassi@sanpaoloimi.com
- ------------------------------------------------------- -----------------------------------------------------
Banca di Roma, S.p.A., New York Branch 34 East 5151 Street
New York, New York 10022
Attention: Alessandro Paoli
Telephone: (212) 407-1746
Fax: (212) 407-1740
- ------------------------------------------------------- -----------------------------------------------------
BNP Paribas Panama Branch Via Espana No. 200, Edificio Omanco
P.O. Box 0816-07547, Panama 1
Panama, Republic of Panama
Attention: Efrain Rosas / Yoel Alveo Telephone:
(507) 263-1867 / 269-6802 Fax: (507) 263-6559 /
223-5529
E-mail: efrain.rosas@americas.bnpparibas.com
yoel.alveo@americas.bnpparibas.com
- ------------------------------------------------------- -----------------------------------------------------
JPMorgan Chase Bank 277 Park Avenue, 2nd Floor
New York, New York 10172
Attention: Linda M. Meyer
Telephone: (212) 622-7447
Fax: (646) 534-0839
- ------------------------------------------------------- -----------------------------------------------------
Societe Generale 1221 Ave. of the Americas
New York, New York 10020
Attention: Alejandro Garcia
Telephone: (212) 278-5988
Fax: (212) 278-6872
- ------------------------------------------------------- -----------------------------------------------------
Schedule 3.01
Existing Standby L/Cs
- ----------------------------- -------------------------------------------------------------------------------------
CEMEX Outstanding Standby L/Cs
- ----------------------------- -------------------------------------------------------------------------------------
BENEIFICARY AMOUNT REFERENCE ISSUANCE MATURITY
- ----------------------------- ----------------- --------------------- ---------------------- ----------------------
Bank of American, NA $50,000,000.00 SB00282 13-Jan-04 13-Jul-04
- ----------------------------- ----------------- --------------------- ---------------------- ----------------------
Total Outstanding $50,000,000.00
- ----------------------------- ----------------- --------------------- ---------------------- ----------------------
Schedule 6.06
-------------
Litigation
----------
A description of material regulatory and legal matters affecting
CEMEX and its Subsidiaries is provided below.
U.S. Anti-Dumping Sunset Reviews
Under the U.S. anti-dumping and countervailing duty laws, the
Commerce Department and the International Trade Commission are required to
conduct "sunset reviews" of outstanding anti-dumping and countervailing duty
orders and suspension agreements every five years. At the conclusion of these
reviews, the Commerce Department is required to terminate the order or
suspension agreement unless the agencies have found that termination is likely
to lead to continuation or recurrence of dumping, or a subsidy in the case of
countervailing duty orders, and material injury. Under special transition
rules, the first sunset reviews commenced in August 1999 for cases involving
gray Portland cement and clinker from Mexico and Venezuela (described below),
which had orders and agreements issued before 1995, and were concluded by the
Commerce Department in July 2000 and by the ITC in October 2000.
In July 2000, the Commerce Department determined not to revoke the
anti-dumping order on imports from Mexico. On October 5, 2000, the ITC found
likelihood of injury to the U.S. industry and determined not to revoke this
anti-dumping order. Thus, the order remains in place. On September 19, 2001,
CEMEX filed a petition for a "changed circumstances" review. The International
Trade Commission decided in December 2001 not to initiate such a review. CEMEX
has appealed the ITC's decision in the "sunset review" and the "changed
circumstances" review to NAFTA. As of March 1, 2004, no NAFTA Panel has been
formed to review the ITC's decision to initiate a "changed circumstances"
review.
On October 5, 2000, the ITC determined that terminating the
Anti-Dumping Suspension Agreement involving imports from Venezuela would not
likely lead to a continuation or recurrence of injury to the U.S. market, and
voted to terminate the agreement. Consequently, on November 8, 2000, the
Commerce Department issued a notice terminating the Anti-Dumping Suspension
Agreement covering imports of cement from Venezuela. On July 28, 2003, the
United States Court of International Trade upheld the Commerce Department's
decision to terminate the Suspension Agreement. The U.S. cement industry has
appealed the decision of the Court of International Trade to the Court of
Appeals for the Federal Circuit. The appeal is currently pending before the
appellate court.
On January 31, 2003, the Government of Mexico requested consultations
with the United States regarding the final determinations of the United States
Department of Commerce and the United States International Trade Commission
concerning various administrative reviews and sunset reviews of the
anti-dumping order on gray portland cement from Mexico; the Commission's
dismissal of a request to initiate a changed circumstances review; and certain
US laws, regulations, procedures and administrative provisions. Mexico and the
US held consultations on April 2, 2003, but did not resolve the dispute. On
July 29, 2003, Mexico requested the establishment of a WTO Panel. The Panel
was established by the WTO's Dispute Settlement Body on August 29, 2003, and
the case is in progress.
U.S. Anti-Dumping Rulings--Mexico
Our exports of Mexican gray cement from Mexico to the United States
are subject to an anti-dumping order that was imposed by the Commerce
Department on August 30, 1990. Pursuant to this order, firms that import gray
Portland cement from us in the United States must make cash deposits with the
U.S. Customs Service to guarantee the eventual payment of anti-dumping duties.
Mexican importers' deposits are being liquidated in stages, as
appeals are exhausted for each annual review period. When the final
anti-dumping rate for any review period causes the amount due to exceed the
amount that was deposited, the Mexican importers are required to pay the
difference with interest. When the final anti-dumping rate for any review
period is lower than the amount that was deposited, the U.S. Customs Service
refunds the difference, with interest, to the Mexican importers.
As of December 31, 2003, CEMEX Corp., as the parent company to our
U.S. subsidiaries that import Mexican cement into the United States, had
accrued liabilities of U.S.$132.9 million, including accrued interest, for the
difference between the amount of anti-dumping duties paid on imports and the
latest findings by the Commerce Department in its administrative reviews.
The Commerce Department has published its final dumping
determinations for the first, second, third, fourth, fifth and seventh review
periods. The Commerce Department's final results of its final determinations
for the sixth, eighth, ninth, tenth, eleventh and twelfth review periods have
also been published, but have been suspended pending review by NAFTA panels.
On October 20, 2003, the NAFTA Extraordinary Challenge Committee
upheld the NAFTA Panel reviewing the final results of the fifth administrative
review, covering the period August 1, 1994 - July 1, 1995. The NAFTA Panel
upheld the Commerce Department's remand results which lowered the antidumping
duty margin for imports during the fifth review period to 44.9% ad valorem.
The Customs Service has begun liquidating entries of cement from Mexico made
during the fifth review period.
On November 25, 2003, the NAFTA Panel reviewing the final results of
the seventh review period upheld the Commerce Department's remand results of
the seventh review period. The remand results lowered the antidumping margin
for imports made during the seventh review period to 37.3% ad valorem.
The latest final determination by the Commerce Department covering
twelfth review period, commencing on August 1, 2001 and ending on July 31,
2002, was issued on September 16, 2003. The Commerce Department determined
that the antidumping margin was 80.8% ad valorem. The final results for the
twelfth review period establish the cash deposit rate for imports of gray
Portland cement and cement clinker from Mexico made on or after September 16,
2003. The cash deposit rate was established at $52.41 per metric ton, which
will remain in effect until the final results of the thirteenth review period
are published.
On June 15, 2004 the Commerce Department issued the Preliminary
Results of the thirteenth review, which preliminarily reduce the antidumping
margin to 55.01% ad valorem, and the cash deposit rate to $32.86 per metric
ton. The rates established by the twelfth review will remain in place until
the final results of the thirteenth review are issued later this year.
The status of each period still under review or appeal is as follows:
Period Cash Deposits Status
- ---------------------- -------------------------------- --------------------------------------------------
8/1/95-7/31/96 61.85% 37.49% determined by the Commerce Department
(effective 5/5/1997) upon review. Liquidation suspended pending
NAFTA panel review.
8/1/97-7/31/98 73.69%, 35.88% and 37.49% 45.98% determined by the Commerce Department
(effective 5/4/1998) upon review. Liquidation suspended pending
NAFTA panel review.
8/1/98-7/31/99 37.49%, 49.58% (effective 38.65% determined by the Commerce Department
3/17/1999) upon review. Liquidation suspended pending
NAFTA panel review.
8/1/99-7/31/00 49.58%, 45.98% (effective 50.98% determined by the Commerce Department
3/16/2000) upon review. Liquidation suspended pending
appeal to NAFTA panel review.
8/1/00-7/31/01 49.58%, 38.65% (effective 73.74% determined by the Commerce Department
5/14/2001) upon review. Liquidation suspended pending
appeal to NAFTA panel review.
8/1/01-7/31/02 38.65%, 50.98% (effective 80.75% determined by the Commerce Department
3/19/2002) upon review. Liquidation suspended pending
appeal to NAFTA panel review.
8/1/02 - 7/31/03 50.98%, 73.74% (effective Currently under review by the Commerce
1/14/2003) Department.
8/1/03 -- to date 73.74%, U.S.$52.41 per metric Subject to review by the Commerce Department.
ton (effective 10/15/2003)
U.S. Anti-Dumping Rulings--Venezuela
On May 21, 1991, U.S. producers of gray cement and clinker filed
petitions with the Commerce Department and the International Trade Commission,
or ITC, claiming that imports of gray cement and clinker from Venezuela were
subsidized by the Venezuelan government and were being dumped into the U.S.
market. The producers asked the U.S. government to impose anti-dumping and
countervailing duties on these imports. These claims arose prior to our
acquisition of our Venezuelan operations in 1994, but for purposes of the
following discussion, we refer to the actions taken by the predecessor company
as actions taken by CEMEX Venezuela. CEMEX Venezuela contested the dumping
claim and the countervailing duty claim, and both cases were suspended.
The Commerce Department's preliminary determination regarding the
dumping claim was published on November 4, 1991. The Commerce Department
initially found that CEMEX Venezuela had a dumping margin of 49.2%. Rather
than proceeding with the final Commerce Department and ITC determinations.
CEMEX Venezuela and the Commerce Department entered into an Anti-Dumping
Suspension Agreement on February 11, 1992. Under the Anti-Dumping Suspension
Agreement, CEMEX Venezuela agreed not to sell gray cement or clinker in the
United States at a price less than the "foreign market value." The foreign
market value was determined by the Commerce Department based on information
provided by CEMEX Venezuela each quarter. CEMEX Venezuela was required to
report to the Commerce Department sales in the U.S. market, costs of
production and related data. During its sunset review of the Anti-Dumping
Suspension Agreement, the ITC determined that terminating the agreement would
not likely lead to a continuation or recurrence of injury to the U.S. market,
and voted to terminate the Anti-Dumping Suspension Agreement on October 5,
2000. Consequently, on November 8, 2000, the Commerce Department issued a
notice terminating the Anti-Dumping Suspension Agreement.
On July 28, 2003, the Court of International Trade upheld the
Commerce Department's termination of the Suspension Agreement. The domestic
petitioners have appealed the court's decision to the U.S. Court of Appeals
for the Federal Circuit. No decision is expected until the second quarter of
2004 at the earliest.
Anti-Dumping in Taiwan
Five Taiwanese cement producers--Asia Cement Corporation, Taiwan
Cement Corporation, Lucky Cement Corporation, Hsing Ta Cement Corporation and
China Rebar--filed before the Tariff Commission under the Ministry of Finance
(MOF) of Taiwan an anti-dumping case involving imported gray Portland cement
and clinker from the Philippines and Korea.
In a letter dated July 19, 2001, the MOF informed the petitioners and
the respondent producers in exporting countries that a formal investigation
had been initiated. Among the respondents in the petition are APO Cement
Corporation or APO, Rizal and Solid, indirect subsidiaries of CEMEX, which
received their anti-dumping questionnaires from the International Trade
Commission under the Ministry of Economic Affairs (ITC-MOEA) on August 2,
2001, and from the MOF on August 16, 2001.
Rizal and Solid replied to the ITC-MOEA by confirming that they were
not exporting cement/clinker during the covered period. On the other hand, in
its position paper filed on August 18, 2001 and in the public hearing held on
August 20, 2001, APO contested the allegation of "injury" in the anti-dumping
proceedings before the ITC-MOEA.
In a letter dated October 2, 2001, the ITC-MOEA notified the
respondent producers about the result of the preliminary injury investigation
and its determination that there is a reasonable indication that the domestic
industry in Taiwan was materially injured by reason of imports of Portland
cement and clinker from South Korea and the Philippines that are alleged to be
sold in Taiwan at less than normal value. In keeping with the implementing
regulations on the imposition of antidumping duties in Taiwan, the ITCMOEA has
transferred the case to the MOF for further investigation.
On October 12, 2001 and November 2, 2001, APO filed its replies to
the MOF questionnaire to contest the allegation of "dumping" in the
anti-dumping proceedings before the MOF. In a letter dated January 22, 2002,
the MOF notified the petitioner and respondents that it adopted on January 15,
2002 a resolution preliminarily finding that there was "dumping" and resolving
that investigation on the issue of "dumping" would continue, but that no
provisional anti-dumping duty would be imposed.
In a letter dated June 26, 2002, the ITC-MOEA notified respondent
producers that its final injury investigation concluded that the imports from
South Korea and the Philippines have caused material injury to the domestic
industry in Taiwan.
In a letter dated July 12, 2002, the MOF notified the respondent
producers that a dumping duty would be imposed on Portland cement and clinker
imports from the Philippines and South Korea commencing from July 19, 2002.
The duty rate imposed on imports from APO, Rizal and Solid was 42%.
On September 17, 2002, APO, Rizal and Solid filed before the Taipei
High Administrative Court an appeal in opposition to the anti-dumping duty
imposed by the MOF. As of April 30, 2004, there have been no material
developments. We anticipate further hearings to be conducted with respect to
this appeal.
Tax Matters
As of December 31, 2003, we and some of our Mexican subsidiaries have
been notified of several tax assessments determined by the Mexican tax office
with respect to the tax years from 1992 through 1996 in a total amount of
Ps4,885 million. With respect to the tax years from 1993 through 1996, the tax
assessments are based primarily on: (i) recalculations of the inflationary tax
deduction, since the tax authorities claim that "Advance Payments to
Suppliers" and "Guaranty Deposits" are not by their nature credits, (ii)
disallowed restatement of tax loss carryforwards in the same period in which
they occurred, (iii) disallowed determination of tax loss carryforwards, and
(iv) disallowed amounts of business asset tax, commonly referred to as BAT,
creditable against the controlling entity's income tax liability on the
grounds that the creditable amount should be in proportion to the equity
interest that the controlling entity has in its relevant controlled entities.
We have filed an appeal for each of these tax claims before the Mexican
federal tax court, and the appeals are pending resolution.
As of December 31, 2003, the Philippine Bureau of Internal Revenue,
or BIR, assessed APO Cement Corp. for a deficiency in the amount of income tax
paid in the tax years 1998 through 2001 amounting to PhP832.1 million
(U.S.$15.0 million as of December 31, 2003, based on an exchange rate of
PhP55.569 to U.S.$1.00, which was the Philippine Peso/Dollar exchange rate on
December 31, 2003 as published by the Bangko Sentral ng Pilipinas, the central
bank of the Republic of the Philippines). The assessment disallows APO Cement
Corp's income tax holiday related income. We have contested BIR's findings
with the Court of Tax Appeal, or CTA. We believe that these claims will not
have a material adverse effect on us. However, an adverse resolution of these
claims could have a material adverse effect on our results of operations in
the Philippines.
The BIR also finalized its tax assessments for Solid Cement Corp.'s
1999 tax year amounting to PhP387.6 million (U.S.$7.0 million as of December
31, 2003, based on an exchange rate of PhP55.569 to U.S.$1.00) and APO Cement
Corp.'s 1999 tax year amounting to PhP833.3 million (U.S.$15.0 million as of
December 31, 2003, based on an exchange rate of PhP55.569 to U.S.$1.00). We
continue to submit relevant evidence to the BIR to contest these assessments.
Our next recourse is to contest these assessments with the CTA if the BIR
issues a final collection letter.
In addition, Solid Cement Corp.'s 1998 tax year and APO Cement
Corp.'s 1997-1998 tax years are under preliminary review for deficiency taxes.
Finalization of the assessment was held in abeyance by the BIR as we continue
to present evidence to dispute their findings. We intend to contest any and
all assessments if they arise.
Other Legal Proceedings
In May 1999, several companies filed a civil liability suit in the
civil court of the circuit of Ibague, Colombia, against two of our Colombian
subsidiaries, alleging that these subsidiaries were responsible for
deterioration in the rice production capacity of land of the plaintiffs,
caused by pollution emanating from our cement plants located in Ibague,
Colombia. On December 15, 2003, a judgment was entered against us under which
we were ordered to pay to the plaintiffs an amount equal to CoP21,114 million
(U.S.$7.6 million as of December 31, 2003, based on an exchange rate of
CoP2,778.21 to U.S.$1.00, which was the Colombian Peso/Dollar exchange rate on
December 31, 2003 as published by the Banco de la Republica de Colombia, the
central bank of Colombia). We filed an appeal on January 13, 2004, and the
case will be sent to the Superior Court of Ibague for review.
In March 2001, 42 transporters filed a civil liability suit in the
civil court of Ibague, Colombia, against three of our Colombian subsidiaries.
The plaintiffs contend that these subsidiaries are responsible for the alleged
damages caused by breach of raw material transportation contracts. The
plaintiffs asked for relief in the amount of CoP127,242 million (U.S.$45.8
million as of December 31, 2003, based on an exchange rate of CoP2,778.21 to
U.S.$1.00). As of April 30, 2004, this proceeding had not reached the
evidentiary stage. Typically, proceedings of this nature continue for several
years before final resolution.
As of December 31, 2003, CEMEX, Inc. had accrued liabilities
specifically relating to environmental matters in the aggregate amount of
U.S.$ 32.4 million. The environmental matters relate to (i) the disposal of
various materials in accordance with past industry practice, which might be
categorized as hazardous substances or wastes, and (ii) the cleanup of sites
used or operated by CEMEX. Inc., including discontinued operations, in regard
to the disposal of hazardous substances or wastes, either individually or
jointly with other parties. Most of the proceedings are in the preliminary
stage, and a final resolution might take several years. For purposes of
recording the provision, CEMEX. Inc. considers that it is probable that a
liability has been incurred and the amount of the liability is reasonably
estimable, whether or not claims have been asserted, and without giving effect
to any possible future recoveries. Based on information developed to date,
CEMEX, Inc. does not believe it will be required to spend significant sums on
these matters in excess of the amounts previously recorded. Until all
environmental studies, investigations, remediation work, and negotiations with
or litigation against potential sources of recovery have been completed, the
ultimate cost that might be incurred to resolve these environmental issues
cannot be assured.
In December 2002, an ex-maritime broker for Puerto Rican Cement
Company. Inc. filed a civil liability lawsuit in Puerto Rico against CEMEX,
S.A. de C.V., PRCC and other unaffiliated entities, including Puerto Rican
authorities. The plaintiff contends that the defendants conspired to violate
state and federal antitrust laws so that one of the defendants, who is not
affiliated with us, could gain control of the maritime broker market in Port
of Ponce, Puerto Rico. The plaintiff has asked for relief in the amount of
approximately U.S.$18 million. In September 2003, the United States District
Court for the District of Puerto Rico dismissed all claims against us, and
entered judgment accordingly. The plaintiff has subsequently filed two
post-judgment motions requesting reconsideration of the court's opinion, and
we have requested the denial of such motions. Resolution of these motions is
still pending before the court.
In March 2003, a lawsuit was filed in the Indonesian province of West
Sumatra in the Padang District Court against (i) Gresik, an Indonesian cement
producer in which we own a 25.5% interest through Cemex Asia Holdings Ltd. or
CAH and the Republic of Indonesia owns a 51% interest, (ii) Semen Padang, a
99.9%-owned subsidiary of Gresik that owns and operates Gresik's Padang cement
plant, and (iii) several Indonesian government agencies. The lawsuit, which
was filed by a foundation purporting to act in the interest of the people of
West Sumatra, challenged the validity of the sale of Semen Padang by the
Indonesian government to Gresik in 1995 on the grounds that the Indonesian
government did not obtain the necessary approvals for such sale. On May 9,
2003, the Padang District Court issued an interim decision suspending Gresik's
rights as a shareholder in Semen Padang on the grounds that ownership of Semen
Padang was an issue in dispute. On March 31, 2004, the Padang District Court
announced its final decision in favor of the foundation. On April 12, 2004,
Gresik filed an appeal of this decision with the Padang District Court, which
will in turn forward the appeal to the High Court of the West Sumatra
province.
After the failure of several attempts to reach a negotiated or
mediated solution to these problems involving Gresik, on December 10, 2003,
CAH filed a request for arbitration against the Republic of Indonesia and the
Indonesian government before the International Centre for Settlement of
Investment Disputes, or ICSID, based in Washington D.C. CAH is seeking, among
other things, rescission of the purchase agreement entered into with the
Republic of Indonesia in 1998, plus repayment of all costs and expenses, and
compensatory damages. ICSID has accepted and registered CAH's request for
arbitration and issued a formal notice of registration on January 27, 2004. As
a result of the registration, an Arbitral Tribunal will be established to hear
the dispute. We cannot predict, however, what effect, if any, this action will
have on our investment in Gresik or what the ruling of the Arbitral Tribunal
will be.
On April 27, 2004, a subsidiary of CEMEX Colombia received notice as
a co-defendant, along with a government agency in charge of urban development
in Bogota, another supplier, and a ready-mix industry association, in an
action brought by a Colombian law firm on "public interest" grounds. The
lawsuit alleges that the use of a certain type of cement-based material in the
construction of roads for the "Transmilenio" public transport system and for
regular traffic resulted in defects that impede the proper functioning of the
"Transmilenio" system and hamper traffic flow. The lawsuit argues that CEMEX
Colombia's subsidiary, the other supplier, and the ready mix-industry
association promoted the use of the material, and seeks damages to pay for the
repair of the defects or, if repair is not possible, the rebuilding of the
defective road sections. We are currently evaluating the potential impact of
this matter on our Colombian operations. Because it is very early in the
process, we cannot estimate the financial implications of an adverse
resolution, but we believe that it is unlikely to have a material adverse
effect on our results of operations. We believe that this will be a protracted
matter that may result in additional lawsuits or actions. We intend to defend
our interests vigorously.
In the ordinary course of our business, we are party to various legal
proceedings. Other than as disclosed herein, we are not currently involved in
any litigation or arbitration proceedings. including any such proceedings
which are pending, which we believe will have, or have had, a material adverse
effect on us, nor, so far as we are aware, are any proceedings of that kind
threatened.
Schedule 6.10
-------------
Subsidiaries
------------
Name Jurisdiction of Incorporation
---- -----------------------------
Cemex Mexico, S.A. de C.V. Mexico
Empresas Tolteca de Mexico, S.A. de C.V. Mexico
Cemex Concretos, S.A. de C.V. Mexico
Sunward Acquisitions N.V. Netherlands
Cemex Espana, S.A. Spain
Cemex, Inc. Louisiana
Cemex Colombia, S.A. Colombia
Cementos Nacionales, S.A. Dominican Republic
Schedule 7.05
-------------
Litigation
----------
A description of material regulatory and legal matters affecting
CEMEX and its Subsidiaries is provided below.
U.S. Anti-Dumping Sunset Reviews
Under the U.S. anti-dumping and countervailing duty laws, the
Commerce Department and the International Trade Commission are required to
conduct "sunset reviews" of outstanding anti-dumping and countervailing duty
orders and suspension agreements every five years. At the conclusion of these
reviews, the Commerce Department is required to terminate the order or
suspension agreement unless the agencies have found that termination is likely
to lead to continuation or recurrence of dumping, or a subsidy in the case of
countervailing duty orders, and material injury. Under special transition
rules, the first sunset reviews commenced in August 1999 for cases involving
gray Portland cement and clinker from Mexico and Venezuela (described below),
which had orders and agreements issued before 1995, and were concluded by the
Commerce Department in July 2000 and by the ITC in October 2000.
In July 2000, the Commerce Department determined not to revoke the
anti-dumping order on imports from Mexico. On October 5, 2000, the ITC found
likelihood of injury to the U.S. industry and determined not to revoke this
anti-dumping order. Thus, the order remains in place. On September 19, 2001,
CEMEX filed a petition for a "changed circumstances" review. The International
Trade Commission decided in December 2001 not to initiate such a review. CEMEX
has appealed the ITC's decision in the "sunset review" and the "changed
circumstances" review to NAFTA. As of March 1, 2004, no NAFTA Panel has been
formed to review the ITC's decision to initiate a "changed circumstances"
review.
On October 5, 2000, the ITC determined that terminating the
Anti-Dumping Suspension Agreement involving imports from Venezuela would not
likely lead to a continuation or recurrence of injury to the U.S. market, and
voted to terminate the agreement. Consequently, on November 8, 2000, the
Commerce Department issued a notice terminating the Anti-Dumping Suspension
Agreement covering imports of cement from Venezuela. On July 28, 2003, the
United States Court of International Trade upheld the Commerce Department's
decision to terminate the Suspension Agreement. The U.S. cement industry has
appealed the decision of the Court of International Trade to the Court of
Appeals for the Federal Circuit. The appeal is currently pending before the
appellate court.
On January 31, 2003, the Government of Mexico requested consultations
with the United States regarding the final determinations of the United States
Department of Commerce and the United States International Trade Commission
concerning various administrative reviews and sunset reviews of the
anti-dumping order on gray portland cement from Mexico; the Commission's
dismissal of a request to initiate a changed circumstances review; and certain
US laws, regulations, procedures and administrative provisions. Mexico and the
US held consultations on April 2, 2003, but did not resolve the dispute. On
July 29, 2003, Mexico requested the establishment of a WTO Panel. The Panel
was established by the WTO's Dispute Settlement Body on August 29, 2003, and
the case is in progress.
U.S. Anti-Dumping Rulings--Mexico
Our exports of Mexican gray cement from Mexico to the United States
are subject to an anti-dumping order that was imposed by the Commerce
Department on August 30, 1990. Pursuant to this order, firms that import gray
Portland cement from us in the United States must make cash deposits with the
U.S. Customs Service to guarantee the eventual payment of anti-dumping duties.
Mexican importers' deposits are being liquidated in stages, as
appeals are exhausted for each annual review period. When the final
anti-dumping rate for any review period causes the amount due to exceed the
amount that was deposited, the Mexican importers are required to pay the
difference with interest. When the final anti-dumping rate for any review
period is lower than the amount that was deposited, the U.S. Customs Service
refunds the difference, with interest, to the Mexican importers.
As of December 31, 2003, CEMEX Corp., as the parent company to our
U.S. subsidiaries that import Mexican cement into the United States, had
accrued liabilities of U.S.$132.9 million, including accrued interest, for the
difference between the amount of anti-dumping duties paid on imports and the
latest findings by the Commerce Department in its administrative reviews.
The Commerce Department has published its final dumping
determinations for the first, second, third, fourth, fifth and seventh review
periods. The Commerce Department's final results of its final determinations
for the sixth, eighth, ninth, tenth, eleventh and twelfth review periods have
also been published, but have been suspended pending review by NAFTA panels.
On October 20, 2003, the NAFTA Extraordinary Challenge Committee
upheld the NAFTA Panel reviewing the final results of the fifth administrative
review, covering the period August 1, 1994 -- July 1, 1995. The NAFTA Panel
upheld the Commerce Department's remand results which lowered the antidumping
duty margin for imports during the fifth review period to 44.9% ad valorem.
The Customs Service has begun liquidating entries of cement from Mexico made
during the fifth review period.
On November 25, 2003, the NAFTA Panel reviewing the final results of
the seventh review period upheld the Commerce Department's remand results of
the seventh review period. The remand results lowered the antidumping margin
for imports made during the seventh review period to 37.3% ad valorem.
The latest final determination by the Commerce Department covering
twelfth review period, commencing on August 1, 2001 and ending on July 31,
2002, was issued on September 16, 2003. The Commerce Department determined
that the antidumping margin was 80.8% ad valorem. The final results for the
twelfth review period establish the cash deposit rate for imports of gray
Portland cement and cement clinker from Mexico made on or after September 16,
2003. The cash deposit rate was established at $52.41 per metric ton, which
will remain in effect until the final results of the thirteenth review period
are published.
On June 15, 2004 the Commerce Department issued the Preliminary
Results of the thirteenth review, which preliminarily reduce the antidumping
margin to 55.01% ad valorem, and the cash deposit rate to $32.86 per metric
ton. The rates established by the twelfth review will remain in place until
the final results of the thirteenth review are issued later this year.
The status of each period still under review or appeal is as follows:
Period Cash Deposits Status
- ----------------------------- ------------------------------ -----------------------------------------------
8/1/95-7/31/96 61.85% 37.49% determined by the Commerce Department
upon review. Liquidation suspended pending
(effective 5/5/1997) NAFTA panel review.
8/1/97-7/31/98 73.69%, 35.88% and 37.49% 45.98% determined by the Commerce Department
(effective 5/4/1998) upon review. Liquidation suspended pending
NAFTA panel review.
8/1/98-7/31/99 37.49%, 49.58% (effective 38.65% determined by the Commerce Department
3/17/1999) upon review. Liquidation suspended pending
NAFTA panel review.
8/1/99-7/31/00 49.58%, 45.98% (effective 50.98% determined by the Commerce Department
3/16/2000) upon review. Liquidation suspended pending
appeal to NAFTA panel review.
8/1/00-7/31/01 49.58%, 38.65% (effective 73.74% determined by the Commerce Department
5/14/2001) upon review. Liquidation suspended pending
appeal to NAFTA panel review.
8/1/01-7/31/02 38.65%, 50.98% (effective 80.75% determined by the Commerce Department
3/19/2002) upon review. Liquidation suspended pending
appeal to NAFTA panel review.
8/1/02 - 7/31/03 50.98%, 73.74% (effective Currently under review by the Commerce
1/14/2003) Department.
8/1/03 -- to date 73.74%, U.S.$52.41 per metric Subject to review by the Commerce Department.
ton (effective 10/15/2003)
U.S. Anti-Dumping Rulings--Venezuela
On May 21, 1991, U.S. producers of gray cement and clinker filed
petitions with the Commerce Department and the International Trade Commission,
or ITC, claiming that imports of gray cement and clinker from Venezuela were
subsidized by the Venezuelan government and were being dumped into the U.S.
market. The producers asked the U.S. government to impose anti-dumping and
countervailing duties on these imports. These claims arose prior to our
acquisition of our Venezuelan operations in 1994, but for purposes of the
following discussion, we refer to the actions taken by the predecessor company
as actions taken by CEMEX Venezuela. CEMEX Venezuela contested the dumping
claim and the countervailing duty claim, and both cases were suspended.
The Commerce Department's preliminary determination regarding the
dumping claim was published on November 4, 1991. The Commerce Department
initially found that CEMEX Venezuela had a dumping margin of 49.2%. Rather
than proceeding with the final Commerce Department and ITC determinations,
CEMEX Venezuela and the Commerce Department entered into an Anti-Dumping
Suspension Agreement on February 11, 1992. Under the Anti-Dumping Suspension
Agreement, CEMEX Venezuela agreed not to sell gray cement or clinker in the
United States at a price less than the "foreign market value." The foreign
market value was determined by the Commerce Department based on information
provided by CEMEX Venezuela each quarter. CEMEX Venezuela was required to
report to the Commerce Department sales in the U.S. market, costs of
production and related data. During its sunset review of the Anti-Dumping
Suspension Agreement, the ITC determined that terminating the agreement would
not likely lead to a continuation or recurrence of injury to the U.S. market,
and voted to terminate the Anti-Dumping Suspension Agreement on October 5,
2000. Consequently, on November 5, 2000, the Commerce Department issued a
notice terminating the Anti-Dumping Suspension Agreement.
On July 28, 2003, the Court of International Trade upheld the
Commerce Department's termination of the Suspension Agreement. The domestic
petitioners have appealed the court's decision to the U.S. Court of Appeals
for the Federal Circuit. No decision is expected until the second quarter of
2004 at the earliest.
Anti-Dumping in Taiwan
Five Taiwanese cement producers--Asia Cement Corporation, Taiwan
Cement Corporation, Lucky Cement Corporation, Hsing Ta Cement Corporation and
China Rebar--filed before the Tariff Commission under the Ministry of Finance
(MOF) of Taiwan an anti-dumping case involving imported gray Portland cement
and clinker from the Philippines and Korea.
In a letter dated July 19, 2001, the MOF informed the petitioners and
the respondent producers in exporting countries that a formal investigation
had been initiated. Among the respondents in the petition are APO Cement
Corporation or APO, Rizal and Solid, indirect subsidiaries of CEMEX, which
received their anti-dumping questionnaires from the International Trade
Commission under the Ministry of Economic Affairs (ITC-MOEA) on August 2,
2001, and from the MOF on August 16, 2001.
Rizal and Solid replied to the ITC-MOEA by confirming that they were
not exporting cement/clinker during the covered period. On the other hand, in
its position paper filed on August 18, 2001 and in the public hearing held on
August 20, 2001, APO contested the allegation of "injury" in the anti-dumping
proceedings before the ITC-MOEA.
In a letter dated October 2, 2001, the ITC-MOEA notified the
respondent producers about the result of the preliminary injury investigation
and its determination that there is a reasonable indication that the domestic
industry in Taiwan was materially injured by reason of imports of Portland
cement and clinker from South Korea and the Philippines that are alleged to be
sold in Taiwan at less than normal value. In keeping with the implementing
regulations on the imposition of antidumping duties in Taiwan, the ITC-MOEA
has transferred the case to the MOF for further investigation.
On October 12, 2001 and November 2, 2001, APO filed its replies to
the MOF questionnaire to contest the allegation of "dumping" in the
anti-dumping proceedings before the MOF. In a letter dated January 22, 2002,
the MOF notified the petitioner and respondents that it adopted on January 15,
2002 a resolution preliminarily finding that there was "dumping" and resolving
that investigation on the issue of "dumping" would continue, but that no
provisional anti-dumping duty would be imposed.
In a letter dated June 26, 2002, the ITC-MOEA notified respondent
producers that its final injury investigation concluded that the imports from
South Korea and the Philippines have caused material injury to the domestic
industry in Taiwan.
In a letter dated July 12, 2002, the MOF notified the respondent
producers that a dumping duty would be imposed on Portland cement and clinker
imports from the Philippines and South Korea commencing from July 19, 2002.
The duty rate imposed on imports from APO, Rizal and Solid was 42%.
On September 17, 2002, APO, Rizal and Solid filed before the Taipei
High Administrative Court an appeal in opposition to the anti-dumping duty
imposed by the MOF. As of April 30, 2004, there have been no material
developments. We anticipate further hearings to be conducted with respect to
this appeal.
Tax Matters
As of December 31, 2003, we and some of our Mexican subsidiaries have
been notified of several tax assessments determined by the Mexican tax office
with respect to the tax years from 1992 through 1996 in a total amount of
Ps4,885 million. With respect to the tax years from 1993 through 1996, the tax
assessments are based primarily on: (i) recalculations of the inflationary tax
deduction, since the tax authorities claim that "Advance Payments to
Suppliers" and "Guaranty Deposits" are not by their nature credits, (ii)
disallowed restatement of tax loss carryforwards in the same period in which
they occurred, (iii) disallowed determination of tax loss carryforwards, and
(iv) disallowed amounts of business asset tax, commonly referred to as BAT,
creditable against the controlling entity's income tax liability on the
grounds that the creditable amount should be in proportion to the equity
interest that the controlling entity has in its relevant controlled entities.
We have filed an appeal for each of these tax claims before the Mexican
federal tax court, and the appeals are pending resolution.
As of December 31, 2003, the Philippine Bureau of Internal Revenue,
or BIR, assessed APO Cement Corp. for a deficiency in the amount of income tax
paid in the tax years 1998 through 2001 amounting to PhP832.1 million
(U.S.$15.0 million as of December 31, 2003, based on an exchange rate of
PhP55.569 to U.S.$1.00, which was the Philippine Peso/Dollar exchange rate on
December 31, 2003 as published by the Bangko Sentral ng Pilipinas, the central
bank of the Republic of the Philippines). The assessment disallows APO Cement
Corp's income tax holiday related income. We have contested BIR's findings
with the Court of Tax Appeal, or CTA. We believe that these claims will not
have a material adverse effect on us. However, an adverse resolution of these
claims could have a material adverse effect on our results of operations in
the Philippines.
The BIR also finalized its tax assessments for Solid Cement Corp.'s
1999 tax year amounting to PhP387.6 million (U.S.$7.0 million as of December
31, 2003, based on an exchange rate of PhP55.569 to U.S.$1.00) and APO Cement
Corp.'s 1999 tax year amounting to PhP833.3 million (U.S.$15.0 million as of
December 31, 2003, based on an exchange rate of PhP55.569 to U.S.$1.00). We
continue to submit relevant evidence to the BIR to contest these assessments.
Our next recourse is to contest these assessments with the CTA if the BIR
issues a final collection letter.
In addition, Solid Cement Corp.'s 1998 tax year and APO Cement
Corp.'s 1997-1998 tax years are under preliminary review for deficiency taxes.
Finalization of the assessment was held in abeyance by the BIR as we continue
to present evidence to dispute their findings. We intend to contest any and
all assessments if they arise.
Other Legal Proceedings
In May 1999, several companies filed a civil liability suit in the
civil court of the circuit of Ibague, Colombia, against two of our Colombian
subsidiaries, alleging that these subsidiaries were responsible for
deterioration in the rice production capacity of land of the plaintiffs,
caused by pollution emanating from our cement plants located in Ibague,
Colombia. On December 15, 2003, a judgment was entered against us under which
we were ordered to pay to the plaintiffs an amount equal to CoP21,114 million
(U.S.$7.6 million as of December 31, 2003, based on an exchange rate of
CoP2,778.21 to U.S.$1.00, which was the Colombian Peso/Dollar exchange rate on
December 31, 2003 as published by the Banco de la Republica de Colombia, the
central bank of Colombia). We filed an appeal on January 13, 2004, and the
case will be sent to the Superior Court of Ibague for review.
In March 2001, 42 transporters filed a civil liability suit in the
civil court of Ibague, Colombia, against three of our Colombian subsidiaries.
The plaintiffs contend that these subsidiaries are responsible for the alleged
damages caused by breach of raw material transportation contracts. The
plaintiffs asked for relief in the amount of CoP127,242 million (U.S.$45.8
million as of December 31, 2003, based on an exchange rate of CoP2,778.21 to
U.S.$1.00). As of April 30, 2004, this proceeding had not reached the
evidentiary stage. Typically, proceedings of this nature continue for several
years before final resolution.
As of December 31, 2003, CEMEX, Inc. had accrued liabilities
specifically relating to environmental matters in the aggregate amount of
U.S.$ 32.4 million. The environmental matters relate to (i) the disposal of
various materials in accordance with past industry practice, which might be
categorized as hazardous substances or wastes, and (ii) the cleanup of sites
used or operated by CEMEX, Inc., including discontinued operations, in regard
to the disposal of hazardous substances or wastes, either individually or
jointly with other parties. Most of the proceedings are in the preliminary
stage, and a final resolution might take several years. For purposes of
recording the provision, CEMEX, Inc. considers that it is probable that a
liability has been incurred and the amount of the liability is reasonably
estimable, whether or not claims have been asserted, and without giving effect
to any possible future recoveries. Based on information developed to date,
CEMEX, Inc. does not believe it will be required to spend significant sums on
these matters in excess of the amounts previously recorded. Until all
environmental studies, investigations, remediation work, and negotiations with
or litigation against potential sources of recovery have been completed, the
ultimate cost that might be incurred to resolve these environmental issues
cannot be assured.
In December 2002, an ex-maritime broker for Puerto Rican Cement
Company, Inc. filed a civil liability lawsuit in Puerto Rico against CEMEX,
S.A. de C.V., PRCC and other unaffiliated entities, including Puerto Rican
authorities. The plaintiff contends that the defendants conspired to violate
state and federal antitrust laws so that one of the defendants, who is not
affiliated with us, could gain control of the maritime broker market in Port
of Ponce, Puerto Rico. The plaintiff has asked for relief in the amount of
approximately U.S.$18 million. In September 2003, the United States District
Court for the District of Puerto Rico dismissed all claims against us, and
entered judgment accordingly. The plaintiff has subsequently filed two
post-judgment motions requesting reconsideration of the court's opinion, and
we have requested the denial of such motions. Resolution of these motions is
still pending before the court.
In March 2003, a lawsuit was filed in the Indonesian province of West
Sumatra in the Padang District Court against (i) Gresik, an Indonesian cement
producer in which we own a 25.5% interest through Cemex Asia Holdings Ltd. or
CAH and the Republic of Indonesia owns a 51% interest, (ii) Semen Padang, a
99.9%-owned subsidiary of Gresik that owns and operates Gresik's Padang cement
plant, and (iii) several Indonesian government agencies. The lawsuit, which
was filed by a foundation purporting to act in the interest of the people of
West Sumatra, challenged the validity of the sale of Semen Padang by the
Indonesian government to Gresik in 1995 on the grounds that the Indonesian
government did not obtain the necessary approvals for such sale. On May 9,
2003, the Padang District Court issued an interim decision suspending Gresik's
rights as a shareholder in Semen Padang on the grounds that ownership of Semen
Padang was an issue in dispute. On March 31, 2004, the Padang District Court
announced its final decision in favor of the foundation. On April 12, 2004,
Gresik filed an appeal of this decision with the Padang District Court, which
will in turn forward the appeal to the High Court of the West Sumatra
province.
After the failure of several attempts to reach a negotiated or
mediated solution to these problems involving Gresik, on December 10, 2003,
CAH filed a request for arbitration against the Republic of Indonesia and the
Indonesian government before the International Centre for Settlement of
Investment Disputes, or ICSID, based in Washington D.C. CAH is seeking, among
other things, rescission of the purchase agreement entered into with the
Republic of Indonesia in 1998, plus repayment of all costs and expenses, and
compensatory damages. ICSID has accepted and registered CAH's request for
arbitration and issued a formal notice of registration on January 27, 2004. As
a result of the registration, an Arbitral Tribunal will be established to hear
the dispute. We cannot predict, however, what effect, if any, this action will
have on our investment in Gresik or what the ruling of the Arbitral Tribunal
will be.
On April 27, 2004, a subsidiary of CEMEX Colombia received notice as
a co-defendant, along with a government agency in charge of urban development
in Bogota, another supplier, and a ready-mix industry association, in an
action brought by a Colombian law firm on "public interest" grounds. The
lawsuit alleges that the use of a certain type of cement-based material in the
construction of roads for the "Transmilenio" public transport system and for
regular traffic resulted in defects that impede the proper functioning of the
"Transmilenio" system and hamper traffic flow. The lawsuit argues that CEMEX
Colombia's subsidiary, the other supplier, and the ready mix-industry
association promoted the use of the material, and seeks damages to pay for the
repair of the defects or, if repair is not possible, the rebuilding of the
defective road sections. We are currently evaluating the potential impact of
this matter on our Colombian operations. Because it is very early in the
process, we cannot estimate the financial implications of an adverse
resolution, but we believe that it is unlikely to have a material adverse
effect on our results of operations. We believe that this will be a protracted
matter that may result in additional lawsuits or actions. We intend to defend
our interests vigorously.
In the ordinary course of our business, we are party to various legal
proceedings. Other than as disclosed herein, we are not currently involved in
any litigation or arbitration proceedings, including any such proceedings
which are pending, which we believe will have, or have had, a material adverse
effect on us, nor, so far as we are aware, are any proceedings of that kind
threatened.
CEMEX, S.A. de C.V.
LIEN SCHEDULE
(Figures in millions of US Dollars)
- ------------------------------------------ ----------------------- ------------------------------------- -------------
COMPANY LENDER LIENS CONCEPT BALANCE
- ------------------------------------------ ----------------------- ------------------------------------- -------------
- ------------------------------------------ ----------------------- ------------------------------------- -------------
CEMEX, Inc. GE Capital 279,280 Equipment related with the credit 1.03
- ------------------------------------------ ----------------------- ------------------------------------- -------------
CEMEX, Inc. City of Long Beach Cement Terminal (Capital Lease 0.00
Obligation)
- ------------------------------------------ ----------------------- ------------------------------------- -------------
CEMEX, Inc. Hampton Land related with the credit 0.28
- ------------------------------------------ ----------------------- ------------------------------------- -------------
CEMEX, Inc. RIO Land related with the credit 0.00
- ------------------------------------------ ----------------------- ------------------------------------- -------------
Mineral Resource Technologies, Inc. Met-South, Inc. Ash storage facility 0.20
- ------------------------------------------ ----------------------- ------------------------------------- -------------
Centro Distribuidor de Cemento, S.A. de Bank of America Cash Collateral 2.10
C.V.
- ------------------------------------------ ----------------------- ------------------------------------- -------------
3.61
- ------------------------------------------ ----------------------- ------------------------------------- -------------
EXHIBIT A
---------
FORM OF NOTE
U.S.$______________ Date_______________
New York, New York,
FOR VALUE RECEIVED, the undersigned, CEMEX, S.A. de C.V., a
sociedad anonima de capital variable organized and existing under the laws of
the United Mexican States and located at Ave. Ricardo Margain Zozoya #325,
Col. Valle Del Campestre, Garza Garcia, N.L. 66265, Mexico (the "Borrower"),
unconditionally promises to pay, without setoff or counterclaim, to the order
of ____________ (the "Lender") on the Maturity Date, as defined in the Credit
Agreement (as defined below), at the office of [ING Capital LLC, 1325 Avenue
of the Americas, New York, New York 10019,] in lawful money of the United
States of America and in immediately available funds, the principal amount of
_____________ Dollars (U.S.$_________) or, if less, the aggregate unpaid
principal amount of all Loans made by the Lender to the undersigned pursuant
to the Credit Agreement which are then due and payable to the Lender pursuant
thereto. The undersigned further unconditionally agrees to pay, without setoff
or counterclaim, interest in like money at such office from the date hereof
until paid in full on the unpaid principal amount hereof from time to time
outstanding at the applicable interest rate per annum determined as provided
in, and payable as specified in, the Credit Agreement. The Lender is
authorized to record the date, type and amount of each Loan made by the Lender
pursuant to the Credit Agreement, the date and amount of each repayment of
principal hereof, the date of each interest rate conversion and each
continuation pursuant to Section 3.05 of the Credit Agreement and the
principal amount subject thereto, and, in the case of Eurodollar Loans, the
interest rate with respect thereto on the schedules annexed hereto and made a
part hereof or on any other record customarily maintained by the Lender with
respect to this Note and any such recordation shall constitute prima facie
evidence of the accuracy of the information so recorded; provided, however,
that the failure of the Lender to make such recordation (or any error is such
recordation) shall not affect the obligations of the Borrower hereunder or
under the Credit Agreement.
This Note is one of the Notes referred to in the Credit
Agreement dated as of __________, among the Borrower, the Guarantors, the
several Lenders party thereto, Barclays Bank PLC, as Issuing Bank and
Documentation Agent, ING Bank N.V., as Issuing Bank, Barclays Capital, the
Investment Banking Division of Barclays Bank PLC, as Joint Bookrunner and ING
Capital LLC, as Joint Bookrunner and Administrative Agent (as the same may
from time to time be amended, supplemented or otherwise modified, the "Credit
Agreement"; terms defined therein being used herein as so defined), and is
entitled to the benefits thereof and is subject to optional and mandatory
prepayment in whole or in part as provided therein.
Upon the occurrence of any one or more of the Events of
Default specified in the Credit Agreement, all amounts remaining unpaid on
this Note shall become, or may be declared to be, immediately due and payable,
all as provided therein.
The Borrower agrees to pay all reasonable costs and
expenses, including all reasonable fees and disbursements of counsel
(including the allocated cost of internal counsel), incurred by the Lender in
connection with the enforcement of the Lender's rights and remedies under the
Credit Agreement and this Note.
The Borrower hereby irrevocably and unconditionally submits
for itself and its property in any legal suit, action or proceeding relating
to this Note or for recognition and enforcement of any judgment in respect
thereof, to the 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, to the jurisdiction of any competent
court in the place of its corporate domicile and any appellate courts thereof,
and consents that any such suit, action or proceeding may be brought in such
courts and waives any objection that it may now or hereafter have to the
laying of venue of any such suit, action or proceeding in any such court or
that such action or proceeding was brought in an inconvenient court and agrees
not to plead or claim the same. The Borrower hereby irrevocably agrees that
service of all writs, process and summonses in any such suit, action or
proceeding brought in the State of New York may be made upon CT Corporation
System having offices on the date hereof at 111 Eighth Avenue, 13th Floor, New
York, New York 10011, U.S.A. (the "Process Agent"), and the Borrower hereby
irrevocably appoints the Process Agent as its authorized agent to accept such
service of any and all such writs, process and summonses and agrees that the
failure of the Process Agent to give any notice of any such service of process
to the Borrower shall not impair or affect the validity of such service or of
any judgment based thereon.
The obligations of the Borrower hereunder to make payments
in Dollars shall not be discharged or satisfied by any tender or recovery
pursuant to any judgment expressed in or converted into any other currency
except to the extent that such tender or recovery results in the effective
receipt by the Lender of the full amount of Dollars payable hereunder and the
Borrower shall be obligated to indemnify the Lender (and the Lender shall have
an additional legal claim) for any difference between such full amount and the
amount effectively received by the Lender pursuant to any such tender or
recovery. The Lender's determination of amounts effectively received by it
shall be presumptively correct in the absence of manifest error.
To the extent that the Borrower 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, execution or otherwise) with respect to itself or its property, the
Borrower hereby irrevocably waives such immunity in respect of its obligations
under this Note and the other Transaction Documents. The foregoing waiver and
consent are intended to be effective to the fullest extent now or hereafter
permitted by applicable law of any jurisdiction in which any suit, action or
proceeding with respect to this Note may be commenced.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
CEMEX, S.A. de C.V.
By:______________________________
Title:___________________________
Guaranteed:
CEMEX MEXICO, S.A. de C.V.,
in its capacity as Guarantor
Under Article X of the Credit Agreement
By:_____________________________________
Title:__________________________________
Guaranteed:
EMPRESAS TOLTECA DE MEXICO,
S.A. de C.V., in its capacity as
Guarantor under Article X of the Credit
Agreement
By:_____________________________________
Title:__________________________________
Schedule 1 to Note
------------------
BASE RATE LOANS
---------------
- --------------------- ------------------ ------------------- ------------------ ------------------- ------------------
Amount of Base
Rate Loans Amount Updated
Made or Amount of Converted to Principal
Converted from Principal LIBOR Balance of Base Notation
Date LIBOR Loans Repaid Loans Rate Loans Made by
- --------------------- ------------------ ------------------- ------------------ ------------------- ------------------
- --------------------- ------------------ ------------------- ------------------ ------------------- ------------------
- --------------------- ------------------ ------------------- ------------------ ------------------- ------------------
- --------------------- ------------------ ------------------- ------------------ ------------------- ------------------
- --------------------- ------------------ ------------------- ------------------ ------------------- ------------------
- --------------------- ------------------ ------------------- ------------------ ------------------- ------------------
- --------------------- ------------------ ------------------- ------------------ ------------------- ------------------
- --------------------- ------------------ ------------------- ------------------ ------------------- ------------------
- --------------------- ------------------ ------------------- ------------------ ------------------- ------------------
- --------------------- ------------------ ------------------- ------------------ ------------------- ------------------
- --------------------- ------------------ ------------------- ------------------ ------------------- ------------------
- --------------------- ------------------ ------------------- ------------------ ------------------- ------------------
- --------------------- ------------------ ------------------- ------------------ ------------------- ------------------
Schedule 2 to Note
------------------
LIBOR LOANS
-----------
- ------------------ ---------------- ---------------- --------------- ---------------- ---------------- ---------------
Amount of
LIBOR Loans Interest Unpaid
Made or Period and Amount Principal
Converted Interest Rate Amount of Converted Balance of
from Base with Respect Principal to Base Rate LIBOR Notation
Date Rate Loans Thereto Repaid Loans Loans Made By
- ------------------ ---------------- ---------------- --------------- ---------------- ---------------- ---------------
- --------------------- ------------------ ------------------- ------------------ ------------------- ------------------
- --------------------- ------------------ ------------------- ------------------ ------------------- ------------------
- --------------------- ------------------ ------------------- ------------------ ------------------- ------------------
- --------------------- ------------------ ------------------- ------------------ ------------------- ------------------
- --------------------- ------------------ ------------------- ------------------ ------------------- ------------------
- --------------------- ------------------ ------------------- ------------------ ------------------- ------------------
- --------------------- ------------------ ------------------- ------------------ ------------------- ------------------
- --------------------- ------------------ ------------------- ------------------ ------------------- ------------------
- --------------------- ------------------ ------------------- ------------------ ------------------- ------------------
- --------------------- ------------------ ------------------- ------------------ ------------------- ------------------
- --------------------- ------------------ ------------------- ------------------ ------------------- ------------------
- --------------------- ------------------ ------------------- ------------------ ------------------- ------------------
EXHIBIT B
---------
FORM OF NOTICE OF BORROWING
---------------------------
ING CAPITAL LLC,
as Administrative Agent
1325 Avenue of the Americas
New York, New York 10019
Attention: [Client Services Unit]
Reference is made to the Credit Agreement, dated as of
________________, 2004, among Cemex, S.A. de C.V., as Borrower (the
"Borrower"), Cemex Mexico, S.A. de C.V., as Guarantor, Empresas Tolteca de
Mexico, S.A. de C.V., as Guarantor, Barclays Bank PLC, as Issuing Bank and
Documentation Agent, ING Bank N.V., as Issuing Bank, Barclays Capital, The
Investment Banking Division of Barclays Bank PLC, as Joint Bookrunner, ING
Capital LLC, as Joint Bookrunner and Administrative Agent, and certain other
lenders party thereto (as the same may be amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"). Terms used but not
otherwise defined herein shall have the meanings provided in the Credit
Agreement. The undersigned hereby gives notice pursuant to Section 2.01 of the
Credit Agreement of its request for [a] Revolving Loan[s] with the following
terms:
(A) Requested Disbursement Date ____________________________
(which is a Business Day)
(B) Principal amount of Borrowing ____________________________
(C) Interest rate basis
(D) (If a LIBOR loan is requested) ____________________________
Interest Period and the last
date thereof
The disbursement shall be deposited in the account specified
in and in accordance with the requirements of Section 2.01(d) of the Credit
Agreement.
The Borrower hereby represents and warrants that each
condition specified in Section 5.02 of the Credit Agreement has been satisfied
or waived.
IN WITNESS WHEREOF, the undersigned has hereto set his name
on this _________ day of _________, ____.
CEMEX, S.A. DE C.V.
as Borrower
By:______________________________
Name:_________________________
Title:________________________
EXHIBIT C
---------
FORM OF NOTICE OF EXTENSION/CONVERSION
--------------------------------------
ING CAPITAL LLC,
as Administrative Agent
1325 Avenue of the Americas
New York, New York 10019
Attention: [Client Services Unit]
Reference is made to the Credit Agreement, dated as of
__________, 2004, among Cemex, S.A. de C.V., as Borrower (the "Borrower"),
Cemex Mexico, S.A. de C.V., as Guarantor, Empresas Tolteca de Mexico, S.A. de
C.V., as Guarantor, Barclays Bank PLC, as Issuing Bank and Documentation
Agent, ING Bank N.V., as Issuing Bank, Barclays Capital, The Investment
Banking Division of Barclays Bank PLC, as Joint Bookrunner, ING Capital LLC,
as Joint Bookrunner and Administrative Agent, and certain other lenders party
thereto (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"). Terms used but not otherwise defined herein shall have
the meanings provided in the Credit Agreement. The undersigned hereby gives
notice pursuant to Section 2.01(e) of the Credit Agreement that it requests an
extension or conversion of [a] Revolving Loan[s] outstanding under the Credit
Agreement, and in connection therewith sets forth below the terms on which
such extension or conversion is requested to be made:
(A) Date of Extension or Conversion ________________________
(B) The Loan[s] to be Extended/ ________________________
Converted and the
Principal Amount thereof
(C) Interest rate basis ________________________
(D) (If a LIBOR loan) Interest ________________________
Period and the last date thereof
The Borrower hereby represents and warrants that each
condition specified in Section 5.02 of the Credit Agreement has been satisfied
or waived.
IN WITNESS WHEREOF, the undersigned has hereto set his name
on this __________day of __________, ___.
CEMEX, S.A. DE C.V.. as Borrower
By: ___________________________
Name:______________________
Title:_____________________
EXHIBIT D
---------
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
-------------------------------------------
ASSIGNMENT AND ASSUMPTION AGREEMENT dated as of ___________,
_____ among [ASSIGNOR] (the "Assignor"), [ASSIGNEE] (the "Assignee"), CEMEX,
S.A. de C.V. (the "Borrower"), CEMEX MEXICO, S.A. de C.V. (a "Guarantor"),
EMPRESAS TOLTECA DE MEXICO, S.A. de C.V. (a "Guarantor"), BARCLAYS BANK PLC,
NEW YORK BRANCH, as Issuing Bank, ING CAPITAL N.V. as Issuing Bank (together
with Barclays Bank PLC, each in such capacity, the "Issuing Banks") and ING
CAPITAL LLC as Administrative Agent (in such capacity, the "Administrative
Agent").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, this Assignment and Assumption Agreement (this
"Agreement") relates to the Credit Agreement dated as of __________ among the
Borrower, the Guarantors, the Assignor and the other Lenders party thereto,
the Issuing Banks, the Administrative Agent, Barclays Bank PLC, as
Documentation Agent, Barclays Capital, the Investment Banking Division of
Barclays Bank PLC, as a Joint Bookrunner and ING Capital LLC, as a Joint
Bookrunner (as from time to time further amended, supplemented or otherwise
modified, the "Credit Agreement");
WHEREAS, as provided in the Credit Agreement, the Assignor
has purchased a participation in the Letter of Credit has purchased and/or
agreed to purchase a participation in Standby L/Cs and has a Commitment to
make Loans to the Borrower in an aggregate principal amount at any time
outstanding not to exceed U.S.$____________ (the "Assignor's Commitment");
[WHEREAS, [the Assignor has purchased participations in
Standby L/C Drawings in an aggregate principal amount of U.S.$________
outstanding on the date hereof] [Loans made to the Borrower by the Assignor
under the Credit Agreement in the aggregate principal amount of
U.S.$__________ are outstanding on the date hereof];
WHEREAS, the Assignor proposes to assign to the Assignee all
of the rights of the Assignor under the Credit Agreement in respect of [a
portion of] its Commitment thereunder in an amount equal to U.S.$__________
(the "Assigned Amount"), together with a corresponding portion of its
participation in the Standby L/Cs [and] [of its participations in unreimbursed
Standby L/C Drawings] [and] [of its outstanding Loans] and the Assignee
proposes to accept assignment of such rights and assume the corresponding
obligations from the Assignor on the terms set forth herein;
NOW, THEREFORE, in consideration of the foregoing and the
mutual agreements contained herein, the parties hereto agree as follows:
SECTION 1. Definitions. All capitalized terms not otherwise
defined herein shall have the respective meanings set forth in the Credit
Agreement.
SECTION 2. Assignment. The Assignor hereby irrevocably
assigns and sells to the Assignee all of the rights of the Assignor under the
Credit Agreement [to the extent of the Assigned Amount], and the Assignee
hereby irrevocably accepts such assignment from the Assignor and assumes all
of the obligations of the Assignor under the Credit Agreement [to the extent
of the Assigned Amount][, including the purchase from the Assignor of the
corresponding portion of the principal amount of the [participations by the
Assignor in unreimbursed Standby L/C Drawings outstanding on the date hereof
[and] [principal amount of the Loans made by the Assignor]. Upon the execution
and delivery hereof by the Assignor, the Assignee, [the Borrower,] the Issuing
Bank [and the Administrative Agent] and the payment of the amounts specified
in Section 3 hereof required to be paid on the date hereof (a) the Assignee
shall, as of the date hereof, succeed to the rights and be obligated to
perform the obligations of a Lender under the Credit Agreement with a
Commitment in an amount equal to the Assigned Amount [in addition to its
existing Commitment], and (b) the Commitment of the Assignor shall, as of the
date hereof, be reduced by a like amount and the Assignor released from its
obligations under the Credit Agreement to the extent such obligations have
been assumed by the Assignee. The assignment provided for herein shall be
without recourse to the Assignor.
SECTION 3. Payments. As consideration for the assignment and
sale contemplated in Section 2 hereof, the Assignee shall pay to the Assignor
on the date hereof in Federal funds the amount heretofore agreed between
them.* It is understood that any Participation Fees accrued to the date hereof
are for the account of the Assignor and such fees accruing from and including
the date hereof with respect to the Assigned Amount are for the account of the
Assignee. Each of the Assignor and the Assignee hereby agrees that if either
party receives any amount under the Credit Agreement that is for the account
of the other party, it shall receive the same for the account of such other
party to the extent of such other party's interest therein and shall promptly
pay the same to such other party.
- -------------------
* Amount should combine principal together with accrued interest and
breakage compensation, if any, to be paid by the Assignee, net of any
portion of any upfront fee to be paid by the Assignor to the
Assignee. It may be preferable in an appropriate case to specify
these amounts generically or by formula rather than as a fixed sum.
SECTION 4. Consent Of [The Borrower,] The Issuing Banks [And
The Administrative Agent]. This Agreement is conditioned upon the consent of
[the Borrower,] the Issuing Banks [and the Administrative Agent] pursuant to
Section 4.12 of the Credit Agreement and the payment of a processing fee of
U.S.$3,500 to the Administrative Agent and a fee of U.S.$1,500 to the
Appropriate Issuing Bank. The execution of this Agreement by [the Borrower,]
the Issuing Banks [and the Administrative Agent] is evidence of this consent.
Pursuant to Section 16.06(b) of the Credit Agreement, the Borrower agrees to
execute and deliver a new Note to the Assignee.
SECTION 5. REPRESENTATIONS AND WARRANTIES.
(a) The Assignor (i) represents and warrants that it is
legally authorized to enter into this Agreement; (ii) makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Credit
Agreement or with respect to the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Credit Agreement, any
other Transaction Document or any other instrument or document furnished
pursuant thereto, other than that the Assignor has not created any adverse
claim upon the interest being assigned by it hereunder and that such interest
is free and clear of any such adverse claim and (iii) makes no representation
or warranty and assumes no responsibility with respect to the financial
condition of the Borrower, the Guarantors, any of their Affiliates or any
other obligor or the performance or observance by the Borrower, the
Guarantors, any of their Affiliates or any other obligor of any of their
respective obligations under the Credit Agreement or any other Transaction
Document or any other instrument or document furnished pursuant hereto or
thereto.
(b) The Assignee (i) represents and warrants that it is
legally authorized to enter into this Agreement; (ii) confirms that it has
received a copy of the Credit Agreement, together with copies of the financial
statements delivered pursuant to Section 8.01 thereof and such other documents
and information as it has deemed appropriate to make its own credit analysis
and decision to enter into this Agreement; (iii) agrees that it will,
independently and without reliance upon the Assignor, the Administrative
Agent, the Issuing Banks or any Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Credit Agreement,
the other Transaction Documents or any other instrument or document furnished
pursuant hereto or thereto; (iv) appoints and authorizes the Administrative
Agent to take such action as agent on its behalf and to exercise such powers
and discretion under the Credit Agreement, the other Transaction Documents or
any other instrument or document furnished pursuant hereto or thereto as are
delegated to the Administrative Agent by the terms thereof, together with such
powers as are incidental thereto; and (v) agrees that it will be bound by the
provisions of the Credit Agreement and will perform in accordance with its
terms all the obligations which by the terms of the Credit Agreement are
required to be performed by it as a Lender.
SECTION 6. NON-RELIANCE ON ASSIGNOR. The Assignor makes no
representation or warranty in connection with, and shall have no
responsibility with respect to, the solvency, financial condition or
statements of the Borrower and the Guarantors, or the validity and
enforceability of the obligations of the Borrower in respect of the Credit
Agreement, the Standby L/Cs or any Note. The Assignee acknowledges that it
has, independently and without reliance on the Assignor, and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement and will continue to be
responsible for making its own independent appraisal of the business, affairs
and financial condition of the Borrower.
SECTION 7. SUCCESSORS AND ASSIGNS. This Agreement shall be
binding upon, and inure to the benefit of the parties hereto and their
respective successor and assigns.
SECTION 8. GOVERNING LAW. This Agreement shall be governed
by and construed in accordance with the law of the State of New York.
SECTION 9. COUNTERPARTS. This Agreement may be signed in any
number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
Delivery of an executed counterpart of a signature page of this Assignment by
telecopy shall be effective as delivery of a manually executed counterpart of
this Assignment.
IN WITNESS WHEREOF, the parties have caused this Agreement
to be executed and delivered by their duly authorized officers as of the date
first above written.
[ASSIGNOR]
By:__________________________________
Title:_______________________________
[ASSIGNEE]
By:__________________________________
Title:_______________________________
CEMEX, S.A. de C.V.,
as Borrower
By:__________________________________
Title:_______________________________
CEMEX MEXICO, S.A. de C.V.,
as Guarantor
By:__________________________________
Title:_______________________________
EMPRESAS TOLTECA DE MEXICO, S.A. de C.V.,
as Guarantor
By:__________________________________
Title:_______________________________
BARCLAYS BANK PLC,
as Issuing Bank
By:__________________________________
Title:_______________________________
By:__________________________________
Title:_______________________________
ING BANK N.V.,
as Issuing Bank
By:__________________________________
Title:_______________________________
By:__________________________________
Title:_______________________________
ING CAPITAL LLC,
as Administrative Agent
By:__________________________________
Title:_______________________________
EXHIBIT E
---------
FORM OF OPINION OF SPECIAL NEW YORK COUNSEL
TO THE ISSUER AND GUARANTORS
EXHIBIT F
---------
FORM OF OPINION OF MEXICAN COUNSEL
TO THE BORROWER AND THE GUARANTORS
EXHIBIT G
---------
FORM OF STAND-BY LETTER OF CREDIT
[THIS IRREVOCABLE STANDBY LETTER OF CREDIT NO. _____ IS ONE OF THE STANDBY
LETTERS OF CREDIT REFERRED TO IN THE CREDIT AGREEMENT, DATED _____ AMONG
CEMEX, S.A. DE C.V., CEMEX MEXICO, S.A. DE C.V., EMPRESAS TOLTECA DE MEXICO,
S.A. DE C.V., BARCLAYS BANK PLC, ING BANK N.V., BARCLAYS CAPITAL, THE
INVESTMENT BANKING DIVISION OF BARCLAYS BANK PLC, ING CAPITAL LLC, AND THE
SEVERAL LENDERS PARTY THERETO.]*
Date: [_________________]
To:
[name and address of Beneficiary]
Attn.___________________
[Telex No./ Swift No./ Facsimile No.]
Ladies and Gentlemen:
We hereby establish our irrevocable standby letter of credit
No. ______________ [in support of obligations of _______________]** by order
of our client CEMEX, S.A. de C.V. (the "Company") in favor of you, [name of
beneficiary] (the "Beneficiary") for an aggregate amount not in excess of
U.S.$[_____________]*** (as reduced from time to time in accordance with the
terms of this letter of credit, the "Stated Amount") expiring on
[_____________]**** (the "The Letter of Credit").
Drawings under this Letter of Credit are unconditionally
available to the Beneficiary against presentation of the certificate in the
form attached hereto as Annex I (each, a "Drawing Certificate") appropriately
completed and purportedly signed by the Beneficiary. Each Drawing Certificate
presented hereunder shall be dated the date of presentation and may be
presented to us either in writing delivered to us at [address (in New York)]
or in writing transmitted to us by facsimile telecopy at [fax number (in New
York)].
- -------------------
* Optional.
** Optional.
*** must have a minimum stated amount equal to U.S.$5,000,000.
**** must expire on the ealier of 360 days after the date of issuance or
[insert date that is five business days prior to stated termination
date].
We hereby agree with you that if any Drawing Certificate is
presented under this Letter of Credit at or prior to 11:00 am (New York time),
on a Business Day, and provided that such Drawing Certificate presented
conforms with the terms and conditions of this Letter of Credit, payment shall
be effected by us in same day funds by the close of business on such Business
Day. If any Drawing Certificate is presented under this Letter of Credit after
11:00 am (New York time), on a Business Day, and provided that such documents
conform with the terms and conditions of this Letter of Credit, payment shall
be effected by us in immediately available funds on the following Business
Day. As used in this Letter of Credit, "Business Day" shall mean any day other
than a Saturday or Sunday or a day on which banking institutions in the State
of New York are authorized or required by law to close.
Partial and multiple drawings are permitted, provided
however that the Stated Amount available under this Letter of Credit shall be
reduced immediately following our payment of any drawing hereunder in the
amount equal to the amount to such drawing. No payment hereunder shall exceed
the Stated Amount.
Upon the payment to you or to your account of the amount in
respect of a drawing hereunder, we shall be fully discharged of our obligation
under this Letter of Credit with respect to the amount of such drawing, and we
shall not thereafter be obligated to make any further payments under this
Letter of Credit in respect of such drawing to you or any other person. By
paying to you the amount demanded in accordance herewith, we make no
representation as to the correctness of the amount demanded, and we shall not
be liable to you or to any other person for, or in respect of any amount so
paid or disbursed for any reason whatsoever, including any non-application or
misapplication by you of the proceeds of such payment or disbursement.
This Letter of Credit may not be assigned, except that you
may by written assignment of proceeds to us in the form of Annex II, assign
your rights and obligations under this Letter of Credit to any assignee
identified in such certification. [This Letter of Credit may be transferred]/
[This Letter of Credit may not be transferred]*
This Letter of Credit sets forth in full our undertaking,
and such undertaking shall not in any way be modified, amended, amplified or
limited by reference to any other document, instrument or agreement, except
only the Drawing Certificate; and any such reference shall not be deemed to
incorporate herein by reference any document, instrument or agreement.
All bank charges and commissions incurred by the issuer of
this Letter of Credit in connection with the issuance or administration of
this Letter of Credit (including any drawing hereunder) shall be the
responsibility of the Company.
All payments under this Letter of Credit shall be in United
States dollars, regardless of the currency in which the obligations to the
Beneficiary referred to in the Drawing Certificate are denominated, in the
account indicated by the Beneficiary in the Drawing Certificate.
- -------------------
* Insert Appropriate Language
This Letter of Credit is subject to the international
standby practice, International Chamber of Commerce (ICC) publication No. 590
("ISP98") and as to matters not addressed by the ISP98 shall be governed by
and construed in accordance with the laws of the state of New York (including
without limitation, Article 5 of the Uniform Commercial Code of the State of
New York).
All communication regarding this Letter of Credit should be
addressed to: [Issuing bank address], attention _____________, department
_________. The number and the date of this Letter of Credit and the name of
our bank must be quoted in all communications.
Very truly yours,
[Full name of L/C Issuing Bank]
By: [authorized signatory]
--------------------
Name:
Title:
Annex I
ATTACHMENT TO FORM OF STAND-BY LETTER OF CREDIT
ISSUED BY (NAME OF ISSUING BANK)
FORM OF DRAWING CERTIFICATE
Date: __________
Ref. ___________
To:
[Name of L/C Issuing Bank]
[address]
Attn.__________________
[Swift No./ Facsimile No.]
Ladies and Gentlemen:
Reference is made to irrevocable standby letter of credit No. _______ dated
__________ (the "Letter of Credit") issued by order and for account of
_________ (the "Company").
The undersigned, a duly authorized representative of _________ (the
"Beneficiary"), hereby certifies that:
1. The Beneficiary is the Beneficiary of the Letter of
Credit.
2. We are hereby drawing in the amount of ________
because ___________ has failed to fulfill its
[payment obligations] / [obligations]* to ________
in accordance with the terms of the ___________
agreement between __________ and ___________ dated
as of _________. The amount being drawn does not
exceed that amount which the Beneficiary is
entitled to draw under the Letter of Credit.
3. The amount noted in paragraph 2 above should be
remitted to the following location in accordance
with the Letter of Credit:
Name of Beneficiary: [______________________]
Department: [______________________]
Address: [_________________________]
Attention: [_______________________]
Telephone: [_______________________]
Facsimile: [_______________________]
Wiring Instructions: [_____________]
4. If this Drawing Certificate shall be sent by
facsimile, the original copy of this Drawing
Certificate shall be sent immediately to the
Issuing Bank via overnight mail to the following
address: [address in New York].
5. For verification purposes, the Issuing Bank may
contact: [contact person of Beneficiary, such
person being someone other than the sender of this
Drawing Certificate via facsimile or via overnight
mail].
In witness whereof, the undersigned has executed this certificate on __________.
Very truly yours,
[Full name of the Beneficiary]
By: [authorized signatory]
--------------------
Name:
Title:
Annex II
ATTACHMENT TO FORM OF STAND-BY LETTER OF CREDIT
ISSUED BY (NAME OF ISSUING BANK)
FORM OF ASSIGNMENT OF PROCEEDS
Date:_______________
Ref.________________
To:
[Name of L/C Issuing Bank]
[address]
Attn._______________
[Telex No./ Swift No./ Facsimile No.]
Letter of Credit No.__________ (the "Letter of Credit")
Issued by:
With reference to the Letter of Credit which you have issued to us,
out of the proceeds due under the Letter of Credit (or from any
payment of proceeds you at any time may make under or in relation to
the Letter of Credit), we hereby irrevocably authorize and direct you
to pay the sum of:
Words ___________________________ Figures _______________________________
To: Name:___________________________________________________________
Address:________________________________________________________
Pursuant to an assignment agreement which we have entered into with them.
In the event of part payments becoming due, please give effect to these
instructions by paying the Assignees named above:
? The full amount of all drawings until the sum
mentioned above has been fully discharged.
? Per cent of any drawing (but all payments when
added together must not exceed the amount of this
assignment).
* * Please delete and initial the instruction which does not apply.
You are hereby authorized also to communicate such information to the Assignee
relating to the Letter of Credit or our performance of the conditions thereof
as you may in your absolute discretion determine.
Please send to the Assignee a copy of this Notice of Assignment which is give
pursuant to International Chamber of Commerce (ICC) Publication No. 590
("ISP98"), to which the above Letter of Credit is subject.
For and on behalf of
____________________
Authorized Signature
_______________________________________________________________________________
To be completed by Beneficiary's bankers:
We hereby confirm the authenticity of ______________ who is/are authorized to
commit the Company to this Assignment.
__________________________ (Bankers)