CREDIT AGREEMENT dated as of November 30, 2006 among AXTEL, S.A.B. DE C.V., as Borrower, AVANTEL, S. DE R.L. DE C.V. and THE OTHER SUBSIDIARIES OF THE BORROWER, as Guarantors,
Exhibit
4.19
dated
as of November 30, 2006
among
AXTEL,
S.A.B. DE C.V.,
as
Borrower,
AVANTEL,
S. DE X.X. DE C.V. and
THE
OTHER SUBSIDIARIES OF THE BORROWER,
as
Guarantors,
VARIOUS
FINANCIAL INSTITUTIONS,
as
Lenders,
CITIBANK,
N.A.,
as
the Administrative Agent,
and
BANCO
NACIONAL DE MEXICO, S.A.
INTEGRANTE
DEL GRUPO FINANCIERO BANAMEX,
as
the Peso Agent
_____________________________________________________________________
CITIGROUP
GLOBAL MARKETS INC.,
as
Sole Lead Arranger and Bookrunner
TABLE
OF CONTENTS
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1
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SECTION
1.1 Certain Defined Terms
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1
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SECTION
1.2 Other Interpretive Provisions
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22
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SECTION
1.3 Accounting Principles
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23
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ARTICLE
II THE CREDITS
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23
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SECTION
2.1 Amounts and Terms of Commitments
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23
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SECTION
2.2 Notes
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24
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SECTION
2.3 Procedure for Borrowing
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24
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SECTION
2.4 Prepayments
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25
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SECTION
2.5 Repayment
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25
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SECTION
2.6 Interest
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26
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SECTION
2.7 Fees
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27
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SECTION
2.8 Computation of Fees and Interest
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27
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SECTION
2.9 Payments by Credit Parties
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27
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SECTION
2.11 Sharing of Payments, Etc.
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28
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ARTICLE
III TAXES AND ILLEGALITY
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29
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SECTION
3.1 Taxes
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29
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SECTION
3.2 Illegality
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31
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SECTION
3.3 Increased Costs and Reduction of Return
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32
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SECTION
3.4 Funding Losses
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32
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SECTION
3.5 Inability to Determine Rates
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33
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SECTION
3.6 Certificates of the Lenders and Agents
|
34
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SECTION
3.7 Substitution of Lenders
|
34
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|
SECTION
3.8 Survival
|
34
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ARTICLE
IV CONDITIONS PRECEDENT
|
35
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SECTION
4.1 Conditions Precedent to Making Loans
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35
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SECTION
4.2 Satisfaction of Conditions Precedent
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39
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ARTICLE
V REPRESENTATIONS AND WARRANTIES
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39
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SECTION
5.1 Representations and Warranties
|
39
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ARTICLE
VI COVENANTS
|
46
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TABLE
OF CONTENTS
(continued)
| Page | |
|
SECTION
6.1 AFFIRMATIVE COVENANTS
|
46
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SECTION
6.2 Negative Covenants
|
51
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ARTICLE
VII DEFAULT/REMEDIES
|
61
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SECTION
7.1 Default/Remedies
|
61
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SECTION
7.2 Acceleration
|
64
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SECTION
7.3 Rights Not Exclusive
|
64
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ARTICLE
VIII THE AGENTS
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64
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SECTION
8.1 Appointment and Authorization
|
64
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SECTION
8.2 Delegation of Duties
|
65
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SECTION
8.3 No Liability of Agent-Related Persons
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65
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SECTION
8.4 Reliance by the Agent-Related Persons
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65
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SECTION
8.5 Notice of Default
|
65
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SECTION
8.6 Credit Decision
|
66
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|
SECTION
8.7 Indemnification of Agent-Related Persons
|
66
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|
SECTION
8.8 The Agent-Related Persons in Their Individual Capacity
|
67
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SECTION
8.9 Successor Agent
|
67
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ARTICLE
IX GUARANTY
|
68
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SECTION
9.1 Guaranty
|
68
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SECTION
9.2 Guaranty Unconditional
|
68
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SECTION
9.3 Discharge only upon Payment in Full; Reinstatement in Certain
Circumstances
|
69
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|
SECTION
9.4 Waiver by the Guarantors
|
69
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|
SECTION
9.5 Subrogation
|
69
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|
SECTION
9.6 Stay of Acceleration
|
70
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ARTICLE
X MISCELLANEOUS
|
70
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SECTION
10.1 Amendments and Waivers
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70
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SECTION
10.2 Notices
|
71
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SECTION
10.3 No Waiver; Cumulative Remedies
|
73
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|
SECTION
10.4 Costs and Expense
|
73
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|
SECTION
10.5 Borrower Indemnification
|
73
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TABLE
OF CONTENTS
(continued)
| Page | |
|
SECTION
10.6 Payments Set Aside
|
74
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SECTION
10.7 Successors and Assigns
|
74
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SECTION
10.8 Assignments, Participations, etc
|
75
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SECTION
10.9 Set-off
|
77
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|
SECTION
10.10 Notification of Addresses, Lending Offices, Etc.
|
77
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SECTION
10.11 Counterparts
|
77
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|
SECTION
10.12 Severability
|
77
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SECTION
10.13 Third Party Beneficiaries
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77
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SECTION
10.14 Governing Law and Jurisdiction
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78
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SECTION
10.15 Waiver of Jury Trial
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79
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SECTION
10.16 Judgment
|
80
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SECTION
10.17 Entire Agreement
|
80
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SECTION
10.18 Use of Names and Marks
|
80
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SECTION
10.19 Use of English Language
|
81
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SECTION
10.20 No Partnership, Etc.
|
81
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SECTION
10.21 Confidentiality.
|
81
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SCHEDULES
|
SCHEDULE
2.1
|
Commitments
and Pro Rata Shares
|
|
SCHEDULE
4.1(l)
|
Existing
Liens and Release Documentation
|
|
SCHEDULE
4.1(m)
|
Acquisition
Documents
|
|
SCHEDULE
5.1(b)
|
Governmental
Approvals Required for Financing
|
|
SCHEDULE
5.1(c)
|
Indebtedness
and Contingent Obligations
|
|
SCHEDULE
5.1(f)
|
Equity
Investments
|
|
SCHEDULE
5.1(i)
|
Governmental
Approvals
|
|
SCHEDULE
5.1(l)
|
Legal
Proceedings
|
|
SCHEDULE
6.1(k)
|
Material
Concessions
|
|
SCHEDULE
6.2(a)(vii)
|
Continuing
Existing Liens
|
|
SCHEDULE
10.2
|
Lending
Offices; Addresses for
Notices
|
EXHIBITS
|
EXHIBIT
A-1
|
Form
of Note for Dollar Loans
|
|
EXHIBIT
A-2
|
Form
of Note for Peso Loans
|
|
EXHIBIT
B
|
Form
of Notice of Borrowing
|
|
EXHIBIT
C
|
Form
of Assignment Agreement
|
|
EXHIBIT
D
|
Form
of Subsidiary Joinder Agreement
|
|
EXHIBIT
E
|
Forms
of Opinions
|
SCHEDULES
SCHEDULE
2.1
Commitments and Pro Rata Shares
SCHEDULE
4.1(l) Existing
Liens and Release Documentation
SCHEDULE
4.1(m) Acquisition
Documents
SCHEDULE
5.1(b) Governmental
Approvals Required for Financing
SCHEDULE
5.1(c) Indebtedness
and Contingent Obligations
SCHEDULE
5.1(f) Equity
Investments
SCHEDULE
5.1(i)
Governmental Approvals
SCHEDULE
5.1(l) Legal
Proceedings
SCHEDULE
6.1(k) Material
Concessions
SCHEDULE
6.2(a)(vii) Continuing
Existing Liens
SCHEDULE
10.2 Lending
Offices; Addresses for Notices
EXHIBITS
EXHIBIT
A-1 Form
of Note for Dollar Loans
EXHIBIT
A-2 Form
of Note for Peso Loans
EXHIBIT
B
Form of Notice of Borrowing
EXHIBIT
C
Form of Assignment Agreement
EXHIBIT
D Form
of Subsidiary Joinder
Agreement
EXHIBIT
E
Forms of Opinions
This
CREDIT AGREEMENT is entered into as of November 30,
2006 (this “Agreement”) among: (a) AXTEL, S.A.B. DE C.V., a
Mexican sociedad anónima bursátil de capital variable (the
“Borrower”), (b) AVANTEL, S. DE X.X. DE C.V., a Mexican
sociedad de responsabilidad limitada de capital variable
(“Avantel”), (c) OTHER SUBSIDIARIES OF THE BORROWER, as
Guarantors, (d) VARIOUS FINANCIAL INSTITUTIONS, as lenders (the
“Lenders”), (e) CITIBANK, N.A., as the Administrative Agent (in
such capacity, the “Administrative Agent”), and (f) BANCO NACIONAL DE
MEXICO, S.A., INTEGRANTE DEL GRUPO FINANCIERO BANAMEX, as the Peso Agent (in
such capacity, the “Peso Agent”).
WHEREAS,
the Avantel Companies are party to the Credit Agreement, dated as of
June 30, 2005 (as heretofore amended, the “Existing Credit
Agreement”), with various lenders, ABN AMRO Bank N.V., as administrative
agent, U.S. Bank National Association, as collateral agent, and certain other
parties,
WHEREAS,
simultaneously with the funding under this Agreement, the Borrower is acquiring
(the “Acquisition”) all of the Capital Stock (defined below) in Avantel
and substantially all of the assets and all of the Capital Stock of Avantel
Infraestructura, S. de X.X. de C.V., a Mexican sociedad de
responsabilidad limitada de capital variable (“Avantel
Infraestructura”), pursuant to the acquisition agreements described on
Schedule 4.1(m), and
WHEREAS,
the Borrower desires to refinance the obligations under the Existing Credit
Agreement and to obtain additional funding for its general corporate purposes
by
entering into the transactions provided for herein, and the other parties hereto
desire to participate in such transactions in the manner described
herein.
NOW,
THEREFORE, in consideration of the mutual agreements, provisions
and covenants contained herein, the parties agree as follows:
ARTICLE
I
DEFINITIONS
SECTION
1.1 Certain Defined Terms. As used in this
Agreement, the following terms shall have the following meanings:
“Acquisition”
shall have the meaning set forth in the recitals.
“Acquisition
Documentation” shall have the meaning set forth in Section
4.1(m).
“Additional
Amounts” shall have the meaning set forth in
Section 3.1(b)(i).
“Administrative
Agent” shall have the meaning set forth in the preamble.
“Administrative
Agent’s Payment Office” shall mean, with respect to payment in Dollars, the
address for such payments to the Administrative Agent set forth on
Schedule 10.2
or
such
other address as the Administrative Agent may specify from time to time to
the
other parties hereto.
“Affected
Lender” shall have the meaning set forth in
Section 3.7.
“Affiliate”
shall mean, as to any Person, any other Person who is directly or indirectly
Controlled by, under common Control with or Controls such Person.
“Agent”
shall mean each of the Administrative Agent and the Peso Agent.
“Agent-Related
Persons” shall mean the Agents, any successor thereto in such capacity
hereunder and the Lead Arranger, together with their respective Affiliates
or in
their other capacities, and the officers, directors, employees, counsel, agents
and attorneys-in-fact of any such Person(s).
“Agreement”
shall have the meaning set forth in the preamble.
“Applicable
Base Rate Margin” shall mean 0.875% per annum.
“Applicable
Law” shall mean any applicable statute, law, regulation, ordinance, rule,
judgment, rule of common law, order, decree, approval (including any
Governmental Approval), concession, grant, franchise, license, agreement,
directive, guideline, policy, requirement or other governmental restriction
or
any similar form of decision of, or determination by (or any interpretation
or
administration of any of the foregoing by), any Governmental Authority, whether
in effect as of the Closing Date or thereafter (including any Environmental
Law).
“Applicable
Margin” shall mean 1.875% per annum.
“Assignee”
shall have the meaning set forth in Section 10.8(a).
“Assignment
Agreement” shall have the meaning set forth in
Section 10.8(a).
“Attorney
Costs” shall mean all fees and disbursements of any law firm or other
external counsel (but of not more than one firm or other external counsel for
all Financing Parties per jurisdiction at any time) or notarial
fees.
“Auditors”
shall mean KPMG Xxxxxxxx Xxxxx, S.C. or a replacement thereof appointed by
the
Borrower and approved by the Required Lenders; it being agreed that no
such approval shall be required if such replacement is a member company or
Affiliate of any one of the “Big Four” accounting firms.
“Authorized
Officer” shall mean, with respect to any Person, its Chief Executive
Officer (Director General), Chief Financial Officer (Director de
Finanzas), Treasurer (Xxxxxxxx), Comptroller (Contralor)
or any more senior officer.
“Avantel”
shall have the meaning set forth in the preamble.
Credit
Agreement 2
“Avantel
Companies” shall mean Avantel, Avantel Infraestructura and their
Subsidiaries as of the Closing Date.
“Avantel
Infraestructura” shall mean Avantel Infraestructura, S. de X.X. de C.V., a
Mexican sociedad de responsabilidad limitada de capital
variable.
“Avantel/Telmex
IRU” shall mean the indefeasible right to use certain
telecommunications capacity pursuant to an agreement between Avantel and Telmex
originally entered into on January 2, 2006.
“Banco
de MéxicoReplacement Rate” shall have the meaning set forth in
Section 3.5(c).
“Banamex”
shall mean Banco Nacional de México, S.A., integrante del Grupo Financiero
Banamex, a sociedad anónima organized under the laws of México and
authorized to provide banking services in México.
“Base
Rate” shall mean, for any day, the higher of: (a) 0.50% per annum
above the latest Federal Funds Rate and (b) the rate of interest in effect
for
such day as publicly announced from time to time by the Administrative Agent
in
the city in which the Administrative Agent’s Payment Office is located as its
“reference rate.” The “reference rate” is a rate set based upon various factors,
including the Administrative Agent’s costs and desired return, general economic
conditions and other factors, and is used as a reference point for pricing
some
loans, which may be priced at, above or below such announced rate. Any change
in
the “reference rate” (occasionally referred to as the “prime rate”) announced by
the Administrative Agent shall take effect at the opening of business on the
day
specified in the public announcement of such change.
“Base
Rate Loan” shall mean a Dollar Loan that bears interest based upon the Base
Rate.
“Borrower”
shall have the meaning set forth in the preamble.
“Bridge
Credit Agreement” shall mean the Credit Agreement dated as of November
30, 2006 among the Borrower, the Guarantors, the lenders party thereto and
Credit Suisse, acting through its Cayman Islands Branch, as administrative
agent.
“Business”
shall mean any business in which the Borrower or any of its Subsidiaries was
engaged on the Closing Date and any business related, ancillary or complementary
to such business.
“Business
Day” shall mean any day other than a Saturday or Sunday and: (a) other than
any other day on which commercial banks in New York City, New York, the city
in
which the Administrative Agent’s Payment Office is located (only with respect to
the determination of the Base Rate) or México City, México are authorized or
required by law to close, and (b) if the applicable Business Day relates to
the
determination of LIBOR, shall mean a day on which dealings are carried on in
the
London interbank eurodollar market.
“Capital
Adequacy Regulation” shall mean any guideline, request or directive of any
central bank or other Governmental Authority, or any other law, rule or
regulation, whether or not having the force of law, in each case regarding
capital adequacy of any bank (or similar entity) or of any Person controlling
a
bank (or similar entity).
Credit
Agreement 3
“Capitalized
Lease Obligations” shall mean, with respect to any Person, all outstanding
obligations of such Person in respect of Capital Leases, taken at the
capitalized amount thereof accounted for as indebtedness in accordance with
GAAP.
“Capital
Lease” shall mean any lease of any Property (whether real, personal or
mixed) by any Person as lessee that, in conformity with GAAP, is required to
be
accounted for as a capital lease on the balance sheet of such
Person.
“Capital
Stock” shall mean any capital stock (including preferred stock) issued by a
corporation or similar ownership interests (including partes sociales
and partnership interests) in any Person.
“Change
of Control” shall mean the occurrence of any of the following
events:
(a)
if
any “person” (as such term is used in Sections 13(d) and 14(d) of the Exchange
Act), other than one or more Permitted Holders, is or becomes the “beneficial
owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that
for purposes of this clause (a): (i) such person shall be deemed to have
“beneficial ownership” of all shares that such person has the right to acquire,
whether such right is exercisable immediately or only after the passage of
time,
and (ii) such person shall not be deemed to have “beneficial ownership” of any
shares solely as a result of a voting or similar agreement entered into in
connection with a merger agreement or asset sale agreement), directly or
indirectly, of more than 35% of the total voting power of the Voting Stock
of
the Borrower; provided, however, that Permitted Holders
beneficially own (as defined in Rules 13d-3 and 13d-5 under the Exchange Act),
directly or indirectly, in the aggregate a lesser percentage of the total voting
power of the Voting Stock of the Borrower than such other person and do not
have
the right or ability by voting power, contract or otherwise to elect or
designate for election a majority of the Board of Directors of the Borrower
(for
the purposes of this clause (a), such other person shall be deemed to
beneficially own any Voting Stock of a specified person held by a parent entity,
if such other person is the beneficial owner, directly or indirectly, of more
than 35% of the voting power of the Voting Stock of such parent entity and
the
Permitted Holders beneficially own, directly or indirectly, in the aggregate
a
lesser percentage of the voting power of the Voting Stock of such parent entity
and do not have the right or ability by voting power, contract or otherwise
to
elect or designate for election a majority of the board of directors of such
parent entity),
(b)
individuals who on the Closing Date constituted the Board of Directors of the
Borrower (together with any new directors whose election by such Board of
Directors or whose appointment or nomination for election by the shareholders
of
the Borrower was approved by a vote of a majority of the directors of the
Borrower then still in office who were either directors on the Closing Date
or
whose appointment, election or nomination for election was approved directly
or
indirectly by the Permitted Holders or by directors
Credit
Agreement 4
previously
so approved) cease for any reason to constitute a majority of the Board of
Directors of the Borrower then in office,
(c)
the
adoption of a plan relating to the liquidation or dissolution of the Borrower;
provided, however, that this clause (c) will not be
applicable to: (i) a Guarantor consolidating with, merging into or transferring
all or part of its Properties to the Borrower or (ii) the Borrower merging
with
an Affiliate of the Borrower solely for the purpose and with the sole effect
of
reincorporating the Borrower in another jurisdiction, or
(d)
the
merger or consolidation of the Borrower with or into another Person or the
merger of another Person with or into the Borrower, or the sale of all or
substantially all the Property of the Borrower (determined on a consolidated
basis) to another Person other than a transaction in which holders of securities
that directly or indirectly represented 100% of the Voting Stock of the Borrower
immediately prior to such transaction (or other securities into which such
securities are converted as part of such merger or consolidation transaction)
own directly or indirectly at least a majority of the voting power of the Voting
Stock of the transferee Person or the surviving Person in such merger or
consolidation transaction immediately after such transaction.
“Closing
Date” shall mean December 4, 2006.
“Code”
shall mean the Internal Revenue Code of 1986 of the United States and the
regulations promulgated and rulings issued thereunder.
“COFETEL”
shall mean the Comisión Federal de Telecomunicaciones, an agency of the
SCT.
“Commitments”
shall mean the Dollar Commitments and the Peso Commitments.
“Communications”
shall have the meaning set forth in Section 10.2(d).
“Consolidated
Basis” shall mean, initially, the combined Financial Statements of the
Borrower and its Subsidiaries (including the Avantel Companies) and for periods
in which the Avantel Companies are consolidated with the Borrower, the
consolidated Financial Statements of the Borrower and its Subsidiaries, in
each
case, where applicable, excluding the Unrestricted Subsidiaries but including
Immaterial Subsidiaries, even if not Guarantors.
“Consolidated
EBITDA” shall mean, for any period (on a Consolidated Basis for the
Borrower and its Subsidiaries determined in accordance with GAAP): (a) the
income from operations for such period plus (b) depreciation of fixed
or capital assets and amortization of intangibles and leasehold improvements
for
such period included in the calculation of income from operations.
“Consolidated
EBITDA to Interest Ratio” shall mean, at any date of determination, the
ratio (expressed as a decimal) of: (a) Consolidated EBITDA (determined excluding
the Unrestricted Subsidiaries but including the Immaterial Subsidiaries even
if
not Guarantors) divided by (b) the Consolidated Interest Expense, in
each case determined for the four most
Credit
Agreement 5
recent
fiscal quarters ending on or before such date (as applicable, determined on
a
pro forma basis as if the Acquisition had occurred at the beginning of
such four fiscal quarter period).
“Consolidated
Indebtedness” shall mean, as of any date of determination, all Indebtedness
(including the Loans) of the Borrower and its Restricted Subsidiaries determined
on a Consolidated Basis.
“Consolidated
Interest Expense” shall mean, for any period, all interest, fees, premia
and similar payments payable by the Borrower and its Restricted Subsidiaries
with respect to Indebtedness (including the Loans) and/or Contingent Obligations
during such period, determined on a Consolidated Basis, in accordance with
GAAP,
and when determined for a future period, assuming no unscheduled reduction
in
principal, increase in Indebtedness or Contingent Obligations or change in
applicable interest rates.
“Consolidated
Senior Indebtedness” shall mean Consolidated Indebtedness excluding
Permitted Subordinated Indebtedness.
“Consolidated
Senior Indebtedness to EBITDA Ratio” shall mean, at any date of
determination, the ratio (expressed as a decimal) of: (a) Consolidated Senior
Indebtedness as at such date divided by (b) Consolidated EBITDA
(determined excluding the Unrestricted Subsidiaries but including the Immaterial
Subsidiaries even if not Guarantors) for the four most recent fiscal quarters
ending on or before such date (as applicable, determined on a pro forma
basis as if the Acquisition had occurred at the beginning of such four fiscal
quarter period).
“Consolidated
Total Indebtedness to EBITDA Ratio” shall mean, at any date of
determination, the ratio (expressed as a decimal) of: (a) Consolidated
Indebtedness as at such date divided by (b) Consolidated EBITDA
(determined excluding the Unrestricted Subsidiaries but including the Immaterial
Subsidiaries even if not Guarantors) for the four most recent fiscal quarters
ending on or before such date (as applicable, determined on a pro forma
basis as if the Acquisition had occurred at the beginning of such four fiscal
quarter period).
“Contingent
Obligation” shall mean (without duplication): (a) the face amount of all
letters of credit, performance bonds and similar instruments, including
fianzas (excluding any such amounts for which a reimbursement
obligation exists and any such instrument to the extent it secures the payment
of Indebtedness), (b) a guarantee, an indemnity obligation in respect of a
guarantee or performance bond (including a fianza), an endorsement or
an aval, (c) all liabilities secured by any Lien on any Property of the
applicable Person, whether or not such liabilities have been assumed by such
Person, (d) a contingent agreement to purchase or to furnish funds for the
payment or maintenance of, or otherwise to be or become contingently liable
under or with respect to, any Indebtedness, other obligations, net worth,
working capital or earnings of any Person, (e) a guarantee of the payment of
dividends or other distributions upon the Capital Stock of any Person, (f)
an
agreement to purchase, sell or lease (as lessee or lessor) Property or services,
primarily in each case for the purpose of enabling a debtor to make payment
of
its obligations, or (g) an agreement to assure a creditor against loss; in
each case including causing a bank or other Person to issue a letter of
credit or other similar instrument for the benefit of any Person, but excluding
endorsement for collection or deposit in the ordinary course of
business.
Credit
Agreement 6
The
amount of any Contingent Obligation of any Person shall be deemed to be an
amount equal to the stated or determinable amount of the primary obligation
in
respect of which such Contingent Obligation is made or, if not stated or
determinable, the maximum reasonably anticipated liability in respect thereof
(assuming such Person is required to perform thereunder) as determined in good
faith.
“Control”
of any Person shall mean possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of such Person,
whether through the ownership of Voting Stock, by contract or
otherwise.
“Covered
Taxes” shall have the meaning set forth in
Section 3.1(a).
“Credit
Party” shall mean the Borrower or a Guarantor.
“Credit
Party Affiliate” shall mean an Affiliate of a Credit Party.
“Customer
Premises Equipment” shall mean equipment owned by the Borrower or a
Restricted Subsidiary that is either leased or sold on an installment basis
to a
customer of the Borrower or such Restricted Subsidiary in connection with the
provision of telecommunications services to such customer by the Borrower or
a
Restricted Subsidiary.
“Default”
shall have the meaning set forth in Section 7.1.
“Default
Rate” shall mean, at any time of determination: (a) with respect to Dollar
Loans, the interest rate(s) then applicable to such Dollar Loans plus
2% per annum, and (b) with respect to Peso Loans: (i) two
multiplied by (ii) the Peso Rate, and (c) with respect to other
Obligations, the Base Rate plus the Applicable Base Rate Margin
plus 2% per annum.
“Disqualified
Stock” shall mean, with respect to the Borrower, any Capital Stock that by
its terms (or by the terms of any security into which it is convertible or
for
which it is exchangeable at the option of the holder) or upon the happening
of
any event:
(a) matures
or is mandatorily redeemable (other than redeemable only for Capital Stock
of
the Borrower that is not itself Disqualified Stock) pursuant to a sinking fund
obligation or otherwise,
(b) is
convertible or exchangeable at the option of the holder for Indebtedness or
Disqualified Stock, or
(c) is
mandatorily redeemable or must be purchased upon the occurrence of certain
events or otherwise, in whole or in part,
in
each
case on or prior to the first anniversary of the Maturity Date;
provided, however, that any Capital Stock that would not
constitute Disqualified Stock but for provisions thereof giving holders thereof
the right to require such Person to purchase or redeem such Capital Stock upon
the occurrence of an “asset sale” or “change of control” occurring prior to the
first anniversary of the Maturity Date shall not constitute Disqualified Stock
if any such requirement only becomes operative after the repayment in full
of
the Obligations.
Credit
Agreement 7
The
amount of any Disqualified Stock
that does not have a fixed redemption, repayment or repurchase price shall
be
calculated in accordance with the terms of such Disqualified Stock as if such
Disqualified Stock were redeemed, repaid or repurchased on any date on which
the
amount of such Disqualified Stock is to be determined pursuant to this
Agreement; provided, however, that if such Disqualified Stock
could not be required to be redeemed, repaid or repurchased at the time of
such
determination, then the redemption, repayment or repurchase price shall be
the
book value of such Disqualified Stock as reflected in the most recent Financial
Statements of such Person.
“Dollar
Commitment” shall mean, with respect to each Lender providing such a
commitment, the Dollar amount set forth opposite its name on
Schedule 2.1 under the heading “Dollar Commitments.”
“Dollar
Lender” shall mean a Lender with a Dollar Commitment or Dollar
Loan.
“Dollar
Loans” shall mean the Loans in Dollars provided to the Borrower by the
Lenders with Dollar Commitments.
“Dollar/Peso
Equivalent” shall mean, with respect to any monetary amount in Dollars or
Pesos, at any time of determination thereof, the amount of Pesos or Dollars
(as
applicable) determined by the Administrative Agent by converting either such
currency into the other currency at the Exchange Rate.
“Dollars”
or “$” or “US$” shall mean the lawful currency of the United
States of America.
“Dollar
Tranche” shall mean the portion of the funding provided pursuant to the
Commitments denominated in Dollars.
“Eligible
Assignee” shall mean: (a) a Mexican Financial Institution, (b) an Export
Credit Agency or (c) a Foreign Financial Institution resident in a jurisdiction
that is party to a treaty with México for the avoidance of double taxation
entitled to the benefits of such treaty and to the reduced rate established
in
such treaty for the type of interest granted therein; provided that no
Credit Party or Subsidiary may be an Eligible Assignee.
“Environmental
Law” shall mean any federal, national, multilateral, state, local or other
law, statute, common law duty, rule, regulation, ordinance or code, together
with any administrative order, directed duty, request, license, authorization
and permit of, and agreement with, any Governmental Authority, in each case
relating to environmental, health, safety and/or land use matters.
“ERISA”
shall mean the Employee Retirement Income Security Act of 1974 of the United
States and the regulations promulgated and rulings issued
thereunder.
“ERISA
Affiliate” shall mean each person (as defined in Section 3(9) of
ERISA) who together with the Borrower or any Subsidiary would be deemed to
be a
“single employer:” (a) within the meaning of Section 414(b), (c), (m) or
(o) of the Code or (b) as a result of the Borrower or any Subsidiary being
or
having been a general partner of such person.
Credit
Agreement 8
“ERISA
Plan” shall mean: (a) any pension plan (as defined in Section 3(2) of
ERISA), that is maintained or contributed to by (or to which there is an
obligation to contribute of) any Credit Party or an ERISA Affiliate and (b)
each
such plan for the five year period after the latest date on which any Credit
Party or an ERISA Affiliate maintained, contributed to or had an obligation
to
contribute to such plan.
“Exchange
Rate” shall mean, on any date of determination, the Peso/Dollar exchange
rate published by Banco de México in the Federal Official Gazette
(Diario Oficial de la Federación) as the rate “para solventar
obligaciones denominadas en moneda extranjera pagaderas en la República
Mexicana” on such date; provided that if Banco de México
ceases to publish such exchange rate or a substitute
rate therefor, then
the Exchange Rate shall be calculated by using the Peso/Dollar spot exchange
rate (if any) published by Banamex as of the close of business on the preceding
Mexican Business Day.
“Excluded
Taxes” shall have the meaning set forth in Section
3.1(a).
“Existing
Credit Agreement” shall have the meaning set forth in the
recitals.
“Existing
Liens” shall mean the Liens on the Properties securing the Existing Credit
Agreement, as described in Schedule 4.1(l).
“Export
Credit Agency” shall mean an official non-Mexican financial institution for
the promotion of exports registered in Book I (Libro I) Section 5
(Sección 5) of the Foreign Banks, Financial Entities, Pension and
Retirement Funds and Investment Funds Registry (Registro de Bancos,
Entidades de Financiamiento, Fondos de Pensiones y Jubilaciones y Fondos de
Inversión del Extranjero) maintained by Hacienda for purposes of the Rule
3.21.2 of the Resolución Miscelánea Fiscal for the year 2006 and
Article 196-II of the Mexican Income Tax Law (or any successor
provision).
“Expropriation
Event” shall mean: (a) any condemnation, nationalization, rescate,
temporary seizure, seizure, expropriation or similar act by (or on behalf of)
a
Governmental Authority of all or a material part of the Network and/or the
other
Property of the Borrower or any Subsidiary and/or of its Capital Stock, (b)
any
assumption by (or on behalf of) a Governmental Authority of control of all
or a
material part of the Property or business operations of the Borrower or any
Subsidiary and/or of its Capital Stock, (c) any taking of any action by (or
on
behalf of) a Governmental Authority for the dissolution or disestablishment
of
the Borrower or any Subsidiary, (d) any taking of any action by (or on behalf
of) a Governmental Authority that would prevent the Borrower and its
Subsidiaries from carrying on their business or operations or a substantial
part
thereof or (e) any other act or series of acts attributable to a Governmental
Authority; that in respect of the foregoing clauses (a) through
(e) individually or in the aggregate, in the reasonable judgment
of the
Required Lenders, has resulted in, or could reasonably be expected to result
in,
a Material Adverse Change.
“Federal
Funds Rate” shall mean, for any day, the rate set forth in the weekly
statistical release designated as H.15(519), or any successor publication,
published by the Federal Reserve Bank of New York on the preceding New York
Business Day opposite the caption “Federal Funds (Effective)”; or, if for any
relevant day such rate is not so published on any such preceding New York
Business Day, then the rate for such day shall be the arithmetic mean as
determined by the Administrative Agent of the rates for the last transaction
in
Credit
Agreement 9
overnight
Federal funds arranged before 9:00 a.m. (New York City time) on that day by
each of three leading brokers of Federal funds transactions in New York City
selected by the Administrative Agent.
“Federal
Reserve Board” shall mean the Board of Governors of the Federal Reserve
System of the United States and any Governmental Authority succeeding to any
of
its functions.
“Federal
Telecommunications Law” shall mean the Mexican Federal Telecommunications
Law (Ley Federal de Telecomunicaciones), adopted in June
1995.
“Financial
Statements” shall mean, with respect to any Person, such Person’s quarterly
or annual balance sheet and statements of income, stockholders’ equity and cash
flows for such fiscal period and for the period from the beginning of the
then-current Fiscal Year to the end of such period, together with all notes
thereto and with comparable figures for the corresponding period of the previous
Fiscal Year. In the Credit Parties’ case, unless otherwise specified, all such
Financial Statements shall be prepared on a Consolidated Basis.
“Financing
Documents” shall mean this Agreement, the Notes and the fee letter
described in Section 2.7; it being understood that such fee
letter is confidential and shall not be distributed to any Person other than
the
parties thereto and their representatives or as otherwise permitted under such
fee letter.
“Financing
Parties” shall mean the Agents and the Lenders.
“Fiscal
Year” shall mean a calendar year.
“Foreign
Financial Institution” shall mean a bank
or
financial institution which is (or its main office is, if lending through a
branch or agency) registered in Book I (Libro I) Section 1 (Sección
1) of the Foreign Banks, Financial Entities, Pension and Retirement Funds
and Investment Funds Registry (Registro de Bancos, Entidades de
Financiamiento, Fondos de Pensiones y Jubilaciones y Fondos de Inversión del
Extranjero) maintained by Hacienda for purposes of Rule 3.21.2 of the
Resolución Miscelánea Fiscal for the year 2006 and Article 195-I of the
Mexican Income Tax Law (or any successor provisions).
“Foreign
Investment Law” shall mean the Mexican Foreign Investment Law (Ley de
Inversión Extranjera).
“GAAP”
shall mean generally accepted accounting principles in Mexico in effect from
time to time, applied on a consistent basis both as to classification of items
and amounts.
“Governmental
Approval” shall mean the Material Concessions and any other action, order,
authorization, consent, approval, right, franchise, license, lease, ruling,
permit, tariff, rate, certification, exemption, filing or registration by or
with any Governmental Authority.
“Governmental
Authority” shall mean any government, governmental department, commission,
board, bureau, agency, regulatory authority, instrumentality, judicial
or
Credit
Agreement 10
administrative
body, domestic, foreign or multilateral, federal, state, local or otherwise,
having jurisdiction over the matter(s) in question.
“Guarantors”
shall mean the Subsidiaries of the Borrower (other than the Immaterial
Subsidiaries and the Unrestricted Subsidiaries).
“Hacienda”
shall mean the Ministry of Finance and Public Credit (Secretaría de Hacienda
y Crédito Público), a ministry of the Mexican government.
“Hedging
Agreement” shall mean any agreement, whether or not in writing, relating to
any transaction that is a rate swap, basis swap, forward rate transaction,
commodity swap, commodity option, equity or equity index swap or option, bond,
note or xxxx option, interest rate option, forward foreign exchange transaction,
cap, collar or floor transaction, currency swap, cross-currency rate swap,
swaption, currency option or any other, similar transaction (including any
option to enter into any of the foregoing) or any combination of the foregoing,
and, unless the context otherwise clearly requires, any master agreement
relating to or governing any or all of the foregoing.
“Immaterial
Subsidiary” shall mean at any time any Subsidiary of the Borrower that
meets the following criteria at such time: (a) such Subsidiary is Telecom
Networks, Inc., Instalaciones y Contrataciones S.A. de C.V., Impulsora e
Inmobiliaria Regional S.A. de C.V., Servicios Axtel S.A. de C.V., Conectividad
Inalámbrica 7GHZ, S. de X.X., Avantel Recursos S.A. de C.V., Avantel
Telecomunicaciones S.A. de C.V., Avantel Equipos S.A. de C.V., Avantel Servicios
S.A. de C.V. or any other Subsidiary of the Borrower designated in writing
by
the Borrower to the Administrative Agent as an Immaterial Subsidiary, (b) at
all
times such Subsidiary’s portion of Consolidated EBITDA is less than 5% of the
Consolidated EBITDA of the Borrower and its Subsidiaries for the four fiscal
quarter period most recently ended, (c) such Subsidiary holds less than 5%
of
the consolidated assets of the Borrower and its Subsidiaries on a Consolidated
Basis, (d) the loss of the Properties held by such Subsidiary, individually
or
in the aggregate, could not reasonably be expected to result in a Material
Adverse Change, (e) such Subsidiary does not hold a Material Concession, and
(f)
the designation of such Subsidiary as an Immaterial Subsidiary has not been
withdrawn by the Borrower in accordance with Section
6.2(j)(iii). The Immaterial Subsidiaries are Restricted
Subsidiaries but not Guarantors.
“Indebtedness”
shall mean, for any Person (without duplication):
(a)
indebtedness for borrowed money,
(b)
obligations evidenced by bonds, debentures, notes, commercial paper, bills
of
exchange or other instruments (other than rental obligations under operating
leases, whether or not evidenced by notes),
(c)
obligations to pay the deferred purchase price of Property or services
(excluding trade accounts not in default and payable in the ordinary course
of
business within 180 days of the furnishing of the goods or
services),
(d)
reimbursement obligations of such Person that are due and payable in respect
of
letters of credit, performance bonds or similar instruments, including
fianzas,
Credit
Agreement 11
(e)
all
liabilities secured by any Lien on any Property of such Person, whether or
not
such liabilities have been assumed by such Person,
(f)
Capitalized Lease Obligations (other than the Avantel/Telmex IRU),
(g)
net
obligations in respect of any interest rate protection agreement or any currency
swap, cap or collar agreement or similar arrangement entered into by such Person
providing for the transfer or mitigation of interest rate, currency or other
risks either generally or under specific contingencies (but without regard
to
any notional principal amount relating thereto), and
(h)
Contingent Obligations relating to any of the foregoing
Indebtedness.
“Indemnified
Liabilities” shall have the meaning set forth in
Section 10.5.
“Indemnified
Person”shall have the meaning set forth in
Section 10.5.
“Information”
shall have the meaning set forth in Section 10.21.
“Information
Memorandum” shall mean the Confidential Arranger Package, dated November
2006, prepared by the Credit Parties in connection with the syndication of
the
Loans.
“Interest
Period” shall mean with respect to any Loan: (a) initially, the period from
the Closing Date to: (i) with respect to Dollar Loans, the last Business Day
of
December 2006, and (ii) with respect to Peso Loans, the date approximately
30
days thereafter, and (b) thereafter: (i) with respect to Dollar Loans, the
period from the end of the preceding Interest Period to the last Business Day
of
the month one or three months thereafter, as selected by the Borrower, and
(ii)
with respect to Peso Loans, each 30 day period thereafter; provided
that no Interest Period may end after the Maturity Date or after the first
Principal Payment Date after the commencement of such Interest
Period.
“Investment”
in any Person shall mean (without duplication): (a) the acquisition (whether
for
cash, securities, other Property, services or otherwise) or holding of Capital
Stock or Indebtedness of such Person, or any agreement to make any such
acquisition or to make any capital contribution to such Person, and (b) the
making of any deposit with, or provision of Indebtedness to, such
Person.
“Judgment
Currency” shall have the meaning set forth in
Section 10.16(a).
“Judgment
Currency Conversion Date” shall have the meaning set forth in
Section 10.16(a).
“Lead
Arranger” shall mean Citigroup Global Markets Inc.
“Lenders”
shall have the meaning set forth in the preamble.
Credit
Agreement 12
“Lending
Office” shall mean, as to any Lender, the office(s) of such Lender
specified as its “Lending Office” on Schedule 10.2 or such other
office(s) as such Lender from time to time may notify the Borrower and the
Administrative Agent in writing.
“LIBOR”
applicable to any Interest Period shall mean:
(a)
the
rate for deposits in Dollars for a period equal (or substantially equal) to
such
Interest Period quoted on the second Business Day before the first day of such
Interest Period, as such rate appears on the display designated as page “3750”
on the Telerate Service (or such other page as may replace page “3750” on the
Telerate Service or such other service as may be nominated by the British
Bankers’ Association as the information vendor for the purpose of displaying the
British Bankers’ Association Interest Settlement Rates for Dollar deposits) (the
“Telerate Page”) as of 11:00 a.m. (London time) on such
date,
(b)
if,
as of 11:00 a.m. (London time) on any such date, such rate does not appear
on the Telerate Page, then the arithmetic mean (rounded upwards, if necessary,
to the next 1/100th of 1%) of the offered rates for deposits in Dollars for
a
period equal (or substantially equal) to such Interest Period quoted on the
second Business Day before the first day of such Interest Period, as such rates
appear on the display designated as page “LIBO” on the Reuters Monitor Money
Rates Service (or such other page as may replace the “LIBO” page on that service
for the purpose of displaying the London interbank offered rates of major banks)
(the “Reuters Screen LIBO Page”) as of 11:00 a.m. (London time) on
such date, if at least two such offered rates appear on the Reuters Screen
LIBO
Page, or
(c)
if,
as of 11:00 a.m. (London time) on any such date, such rate does not appear
on either the Reuters Screen LIBO Page or the Telerate Page, then the arithmetic
mean (rounded upwards, if necessary, to the next 1/100th of 1%) of the rate
for
deposits in Dollars for a period equal (or substantially equal) to such Interest
Period that are offered to the Administrative Agent by two or more leading
banks
in the London interbank market;
in
each
case as determined by the Administrative Agent and notified to the Dollar
Lenders and the Borrower on such second prior Business Day (or, with respect
to
any LIBOR Loans commencing on the Closing Date, on the Closing
Date).
“LIBOR
(Reserve Adjusted)” shall mean, with respect to a LIBOR Loan for the
relevant Interest Period, the quotient (rounded upwards, if necessary, to the
nearest 1/100th of 1%) of: (a) LIBOR for such Interest Period divided
by (b) one minus the Reserve Requirement applicable to such
Interest Period.
“LIBOR
Loan” shall mean a Dollar Loan that bears interest based upon LIBOR
(Reserve Adjusted).
“Lien”
shall mean, with respect to any Property of any Person, any mortgage, deed
of
trust, hypothecation, security trust, fiduciary transfer of title, assignment
by
way of security, lien, pledge, charge, sale and lease-back arrangement,
easement, servitude, servidumbre, trust arrangement or security
interest or encumbrance of any kind in respect of such
Credit
Agreement 13
Property, or
any preferential arrangement having the practical and/or economic effect of
constituting a security interest with respect to the payment of any obligation
with, or from the proceeds of, any Property of any kind (and a Person shall
be
deemed to own subject to a Lien any Property 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 agreement relating to such
Property). For the purpose of clarification, a Lien shall include any sales
(including “true sales”) of Property in connection with any securitization or
similar transaction.
“Loans”
shall mean the Dollar Loans and the Peso Loans.
“Material
Adverse Change” shall mean: (a) a material adverse change in the
operations, business and/or condition (financial or otherwise) of the Credit
Parties taken as a whole since December 31, 2005, or (b) an impairment of
the ability of the Credit Parties to perform any of their respective material
obligations under any Financing Document. For purposes hereof, a
Material Adverse Change shall not be deemed to have occurred to the extent
that
such change with respect to the Credit Parties taken as a whole is as a result
of a condition or event related solely to the Avantel Companies and such
condition or event was existing prior to or as of the time of the
Acquisition.
“Material
Concession” shall mean the concessions of the Borrower and its Subsidiaries
listed on Schedule 6.1(k).
“Material
Document” shall mean the Material Concessions and the Acquisition
Documentation.
“Material
Obligations” shall have the meaning set forth in
Section 7.1(b).
“Maturity
Date” shall mean the Principal Payment Date in November 2011.
“Mexican
Business Day” shall mean any day other than a Saturday or Sunday and other
than any other day on which commercial banks in México City, México are
authorized or required by law to close.
“Mexican
Financial Institution” shall mean a commercial bank organized under the
Credit Institutions Law (Ley de Instituciones de Crédito) of
México.
“México”
shall mean the United Mexican States.
“Moody’s”
shall mean Xxxxx’x Investors Service, Inc.
“Net
Worth” shall mean the consolidated net worth of the Credit Parties,
determined on a Consolidated Basis.
“Network”
shall mean the public telecommunications network (red pública de
telecomunicaciones) (including the fiber optic cable, cable border
crossings, interconnection points, switching centers and operating and office
support systems and facilities) of the Credit Parties for the provision of
telecommunications services (including any special or value-
Credit
Agreement 14
added
telecommunications services) that the Credit Parties may offer from time to
time.
“New
York Business Day” shall mean any day other than a Saturday or Sunday and
other than any other day on which commercial banks in New York City, New York
are authorized or required by law to close.
“Non-U.S.
Pension Plan” shall mean any plan, fund (including any superannuation fund)
or other similar program established or maintained outside the United States
of
America by the Borrower or any Restricted Subsidiary primarily for the benefit
of employees of the Borrower or any Restricted Subsidiary residing outside
the
United States of America, which plan, fund or other similar program provides
(or
results in) retirement income, a deferral of income in contemplation of
retirement or payments to be made upon termination of employment, and which
plan
is not subject to ERISA or the Code.
“Note”
shall mean a non-negotiable promissory note (xxxxxx no negociable)
executed by the Borrower (and executed por aval by the Guarantors) in
favor of a Lender pursuant to Section 2.2, substantially in the form
of Exhibit A-1 (for Dollar Loans) or Exhibit A-2 (for
Peso Loans).
“Notice
of Borrowing” shall mean a notice to the Administrative Agent substantially
in the form of Exhibit B.
“Notice
Office” shall mean the office of the Administrative Agent identified on
Schedule 10.2 as its office for notices or such other office as the
Administrative Agent may specify from time to time to the other parties
hereto.
“Obligations”
shall mean all loans, advances, debts, liabilities and other payment obligations
of every kind and description, howsoever arising, owed by a Credit Party under
a
Financing Document (whether or not evidenced by any note or other instrument
and
whether or not for the payment of money), direct or indirect, absolute or
contingent, due or to become due, now existing or hereafter arising, including
all interest, fees, charges, expenses, Indemnified Liabilities and Attorney
Costs payable by a Credit Party.
“Ordinary
Course of Business” shall mean, with respect to any sale, assignment,
transfer, conveyance, lease or other disposition of any Property of the Borrower
or any Restricted Subsidiary, any such transaction that is in the ordinary
course of business of the Borrower or such Restricted Subsidiary and consistent
with practices in the Mexican telecommunications industry, including: (a) any
single transaction (or series of related transactions) relating to Property
having a book value (under GAAP) of $25,000,000 (or its equivalent in any other
currency) or less, (b) leases and/or sales of Customer Premises Equipment to
customers, (c) divestitures of obsolete assets and (d) sales or other
dispositions of assets for the purpose of upgrading or replacing such assets
with assets of equal or greater value and utility (so long as the replacement
of
such assets shall be effected substantially contemporaneously with such sale
or
other disposition); provided that, except for transactions described in
clause (b), any single such transaction (or series of related
transactions) relating to Property having a book value under GAAP in excess
of
$25,000,000 (or its equivalent in any other currency) shall not be considered
to
be in the Ordinary Course of Business.
Credit
Agreement 15
“Organizational
Documents” shall mean, with regard to any Person: (a) its articles of
incorporation or other similar document, (b) its estatutos sociales,
by-laws or other similar document, (c) any certificate of designation or
instrument relating to the rights of preferred stockholders or other equity
holders of such Person, and (d) any stockholder rights agreement, registration
rights agreement or other similar agreement relating to such
Person.
“Other
Taxes” shall mean any present or future stamp, court or documentary taxes
or any other excise or property taxes or charges of a similar nature that are
levied by any Governmental Authority and that arise from any payment of any
Obligations or from the execution, delivery, performance, enforcement or
registration of, or otherwise with respect to, any Financing
Document.
“Participant”
shall have the meaning set forth in Section 10.8(c).
“Payment
Date” shall mean, as to any Loan, the Business Day at the end of each
Interest Period applicable thereto (i.e., the Business Day to which an
Interest Period runs even though such Business Day is not within such Interest
Period).
“Payment
Office” shall mean, with respect to payments in Dollars, the Administrative
Agent’s Payment Office, and with respect to payments in Pesos, the Peso Agent’s
Payment Office.
“Permitted
Acquisition” shall mean the purchase or acquisition by the Borrower or a
Restricted Subsidiary of the Capital Stock or Properties of another Person
or a
business unit or other integrated operations of another Person, which in each
such case shall engage in the Business; provided that: (a) after giving
effect to such purchase or acquisition of Capital Stock, such Person shall
be a
wholly-owned Subsidiary of the Borrower, (b) immediately before and after giving
effect thereto, no Unmatured Default or Default then exists or would result
therefrom, and (c) the Borrower is in compliance with the financial covenants
set forth in Section 6.2(g), calculated on a pro forma basis
(for a period, in the case of the ratios, of the four fiscal quarters most
recently ended for which Financial Statements have been prepared) as though
such
purchase or acquisition had occurred at the beginning of such period, as
evidenced by a certificate of an Authorized Officer of the Borrower delivered
to
the Administrative Agent demonstrating such compliance.
“Permitted
Dollar Investments” shall mean any of the following, denominated and
payable in Dollars: (a) securities issued or directly and fully guaranteed
by
the United States government or any agency or instrumentality thereof with
a
maturity of less than one year, (b) certificates of deposit and eurodollar
time
deposits with a maturity of not later than six months, bankers’ acceptances with
a maturity of not later than six months and overnight bank deposits, in each
case with any U.S. commercial bank of recognized stature having capital and
surplus in excess of $500,000,000 and having a commercial paper rating (or
the
holding company thereof having a commercial paper rating) of “A-1” or better by
S&P or “P-1” or better by Moody’s, and that is a member of the Federal
Reserve System, (c) commercial paper rated “A-1” or better by S&P or “P-1”
or better by Moody’s with a maturity of less than
Credit
Agreement 16
one
year,
(d) guaranteed investment contracts with a maturity of less than one year and
entered into with (or fully guaranteed by) financial institutions whose
long-term unsecured non-credit enhanced indebtedness is rated “A-” or better by
S&P or “A2” or better by Moody’s, and (e) investments in money market funds
having a rating from each of S&P and Moody’s in the highest investment
category granted thereby; provided that, notwithstanding the foregoing,
no Permitted Dollar Investments shall be permitted with a maturity of later
than
the next Payment Date for any Loan unless, after giving effect to such later
maturing Permitted Dollar Investments, other Permitted Dollar Investments having
a maturity of not later than such next Payment Date remain in an amount equal
to
the aggregate amount of the principal, if any, and interest payment scheduled
to
be payable on such next Payment Date for any Loan (determined using the interest
rate(s) applicable to the Loans on the date of determination as the interest
rate(s) applicable until such next Payment Date).
“Permitted
Hedging Obligations” shall mean obligations of a Person under Hedging
Agreements that are (or were) entered into by such Person in the ordinary course
of business for the purpose of directly mitigating risks associated with:
(a) raw materials purchases, (b) interest or currency exchange rates,
(c) operating expenses or other anticipated obligations of such Person or
(d) other liabilities, commitments or assets held or reasonably anticipated
by such Person, but not for speculative purposes.
“Permitted
Holders” shall mean (a) any Person that is an Affiliate of the Borrower
prior to an event giving rise to a Change of Control (and not established as
an
Affiliate in order to effect what would otherwise be a Change of Control) and (b) each
of the following
shareholders of the Borrower: Xxxxxx Xxxxx Xxxxxxxx, Ma. Xxxxx Xxxxxx xx Xxxxx,
Xxxxxxx Xxxxxx xx Xxxxx, Xxxxx Xxxxx Xxxxxx, Impra Café, S.A. de C.V., Xxxxxxx
Xxxxx Xxxxxx, Xxxxx Xxxxx Xxxxxx, Xxxxxxxx Xxxxx Xxxxxx, Xxxxxxx Xxxxx Xxxxxx,
Xxxxxxx Xxxxx Xxxxxx, Blackstone Capital Partners III Merchant Banking Fund,
L.P., Blackstone Family Investment Partnership III, L.P., Tapazeca sprl, New
Hampshire Insurance Company, LAIF X sprl, WorldTel Mexico Telecom and Citigroup,
Inc., and their respective Affiliates, heirs, legal representatives and
successors.
“Permitted
Investments” shall mean:
(a)
with
respect to Dollars, Permitted Dollar Investments, and
(b)
with
respect to Pesos, Investments in any of the following, denominated and payable
in Pesos:
(i)
obligations with a maturity of less than one year that are direct obligations
of
the Mexican government or of entities having the statutory guarantee of the
Mexican government, or obligations that are expressly and unconditionally
guaranteed by the Mexican government,
(ii)
obligations with a maturity of less than one year of Mexican commercial banks
of
recognized stature, supervised by the Mexican National Banking and Securities
Commission, with a capital and surplus of at least $250,000,000 (or its
equivalent in other currencies); provided that the aggregate
Investments of the
Credit
Agreement 17
Credit
Parties in Mexican commercial banks not having Mexican domestic ratings of
AA+(mex) or above from Fitch and mxA+ or above from S&P shall not exceed
$25,000,000 (or its equivalent in Pesos) at any time,
(iii)
commercial paper of Mexican corporations with a maturity of less than one year
and rated at least “A3” by Standard & Poor’s, S.A. de C.V., and
(iv)
repurchase agreements with a maturity of less than one year, in each case
related to any of the Investments described in clauses (i) through
(iii), and that are fully collateralized by such Investments, with
any
Mexican commercial bank that meets the criteria outlined in
clause (ii); provided that the aggregate amount invested in
such repurchase agreements shall not exceed $25,000,000 (or its equivalent
in
Pesos) at any time.
“Permitted
Joint Venture/Partnership” shall mean a joint venture or partnership to
which a Credit Party is party; provided that at the time of, and after
giving effect to, any investment by such Credit Party in a joint venture or
partnership, such joint venture or partnership is (a) a Guarantor or is an
Unrestricted Subsidiary meeting the requirements of Section 6.2(j)(iv) or
(b) if such joint venture or partnership is neither a Guarantor nor an
Unrestricted Subsidiary, at least 80% of the Consolidated EBITDA of the Borrower
and its Subsidiaries on a pro forma basis for the last four fiscal
quarters is derived from Credit Parties.
“Permitted
Lien” shall have the meaning set forth in
Section 6.2(a).
“Permitted
Refinancing” shall mean a refinancing, refunding, renewal or extension of
any Indebtedness, provided that: (a) the principal amount of any such
Indebtedness is not increased above the principal amount thereof outstanding
immediately prior to such refinancing, refunding, renewal or extension, (b)
the
direct and contingent obligors with respect to such Indebtedness are not
changed, (c) such Indebtedness shall not be secured by any Property other than
the Property securing the Indebtedness being refinanced, refunded, renewed
or
extended and (d) if Permitted Subordinated Indebtedness is being refinanced,
refunded, renewed or extended, then such Indebtedness shall be subordinated
to
the Obligations at least to the same extent as the Permitted Subordinated
Indebtedness being refinanced, refunded, renewed or extended.
“Permitted
Subordinated Indebtedness” shall mean unsecured Indebtedness for borrowed
money junior to and subordinate to the Obligations on terms and conditions
satisfactory to the Required Lenders, including no principal payments thereon
to
be due prior to the later of the first anniversary of the Maturity Date and
payment in full of the Obligations and no other payments to be made thereon
if
an Unmatured Default or Default exists or would result therefrom.
“Person”
shall mean an individual, partnership, joint venture, corporation, limited
liability company, trust, unincorporated organization, Governmental Authority
or
other entity of whatever nature.
“Peso
Agent” shall mean Banamex.
Credit
Agreement 18
“Peso
Agent’s Payment Office” shall mean, with respect to payments in Pesos, the
address for such payments to the Peso Agent set forth on
Schedule 10.2 or such other address as the Peso Agent may specify
from time to time to the other parties hereto.
“Peso
Commitment” shall mean, with respect to each Lender providing such a
commitment, the Peso amount set forth opposite its name on
Schedule 2.1 under the heading “Peso Commitments.”
“Peso
Lender” shall mean a Lender with a Peso Commitment or a Peso
Loan.
“Peso
Loans” shall mean the Loans in Pesos provided to the Borrower by the
Lenders with Peso Commitments.
“Peso
Rate” applicable to any Interest Period with respect to Peso Loans shall
mean the Interbank Interest Equilibrium Rate (Tasa de Interés Interbancaria
de Equilibrio) (the “TIIE”) for a designated maturity of 28 days,
as most recently calculated and published in the Federal Official Gazette
(Diario Oficial de la Federación) by Banco de México on the
commencement of such Interest Period (and, if such date shall not be a Mexican
Business Day, the immediately preceding Mexican Business Day).
“Pesos”
or “P$” shall mean the lawful currency of the United Mexican
States.
“Peso
Tranche” shall mean the portion of the funding provided pursuant to the
Commitments denominated in Pesos.
“Platform”
shall have the meaning set forth in Section 10.2(d).
“Principal
Payment Date” shall mean the last Business Day of each February, May,
August and November, beginning with November 2009, until the Maturity
Date.
“Process
Agent” shall have the meaning set forth in
Section 4.1(i).
“Property”
shall mean any right or interest in or to property, assets, rights or revenues
of any kind whatsoever, whether real, personal or mixed, whether existing or
future and whether tangible or intangible, including intellectual
property.
“Pro
Rata Share” shall mean, as to any Lender at any time, the percentage
equivalent (expressed as a decimal, rounded to the tenth decimal place, with
.00000000005 rounded upward) at such time of such Lender’s Loans and unused
Commitments then outstanding divided by the combined Loans and unused
Commitments then outstanding of all Lenders; provided that if any such
determination is made with respect to a particular Tranche or type of
Commitment, then only the Loans and unused Commitments of the Lenders of such
Tranche or type of Commitment shall be considered; and provided further
that, for the purpose of such determination where both Tranches are combined,
the Peso Loans shall be calculated as if they were converted into Dollars at
the
Exchange Rate as of the date of determination.
“Register”
shall have the meaning set forth in Section 10.8(e).
Credit
Agreement 19
“Release
Documentation” shall mean the documentation listed in Schedule 4.1(l)
providing for the termination and release of the Existing Liens, in form and
substance satisfactory to the Administrative Agent.
“Replacement
Lender” shall have the meaning set forth in
Section 3.7.
“Required
Lenders” shall mean Lenders holding more than 50% of the aggregate
principal amount of the Loans and unused Commitments then outstanding (or with
respect to a single Tranche or type of Commitment, more than 50% of the
aggregate principal amount of the Loans and unused Commitments outstanding
under
such Tranche or type of Commitment); provided that any Loans held by
any Credit Party or any Credit Party Affiliate shall not be considered in any
such determination (i.e., the Required Lenders, including for the
following proviso, shall be determined as if such Loans and unused Commitments
did not exist) and such holders shall not be entitled to vote thereon; and
provided further that, for the purpose of such determination with respect
to all Loans under this Agreement, the Peso Loans shall be calculated as if
they
were converted into Dollars at the Exchange Rate as of the date of
determination.
“Reserve
Requirement” shall mean, relative to an Interest Period for a LIBOR Loan,
the reserve percentage (expressed as a decimal) equal to the maximum aggregate
reserve requirement, if any (including all basic, emergency, supplemental,
marginal and other reserves and taking into account any transitional adjustments
or other scheduled changes in reserve requirements), specified under regulations
issued from time to time by the Federal Reserve Board or other Governmental
Authorities in any jurisdiction and then applicable to assets or liabilities
consisting of and including “Eurocurrency liabilities,” as defined in
Regulation D (or applicable to similar liabilities under any successor or
similar regulation in any jurisdiction), having a term approximately equal
to
such Interest Period.
“Restricted
Payment” shall mean any payment or distribution by the Borrower or a
Restricted Subsidiary, directly or indirectly, whether in cash or other Property
or in obligations of the Borrower or such Restricted Subsidiary: (a) of any
dividends on its Capital Stock, (b) in respect of the purchase, acquisition,
redemption, deduction, retirement, defeasance or other
acquisition for value of any of its Capital Stock or any warrants, rights or
options to acquire such Capital Stock, now or hereafter outstanding, (c) in
respect of the return of any capital to its stockholders as such, (d) in
connection with any distribution or exchange of assets in respect of its Capital
Stock, warrants, rights, options, obligations or securities to or with its
stockholders as such, (e) in return of any irrevocable capital contributions,
(f) other than the Obligations, in respect of any principal, interest, fees
or
expenses relating to any Investment by any Credit Party Affiliates (including
Indebtedness of any Credit Party owing to any Credit Party Affiliate) or (g)
in
respect of any Permitted Subordinated Indebtedness.
“Restricted
Subsidiary” shall mean a Subsidiary that is not an Unrestricted
Subsidiary. For the purpose of clarification, a Restricted Subsidiary
need not be a Guarantor if it is an Immaterial Subsidiary.
“RPPC”
shall mean the Public Registry of Property and Commerce (Registro Público de
Propiedad y Comercio) of the corporate domicile of a Person organized under
the laws of México or of the location of a Property, as the case may
be.
Credit
Agreement 20
“S&P”
shall mean Standard & Poor’s Ratings Services, a division of The XxXxxx-Xxxx
Companies, Inc.
“SCT”
shall mean the Ministry of Communication and Transportation (Secretaría de
Comunicaciones y Transportes), a ministry of the Mexican
government.
“SEC”
shall mean the United States Securities and Exchange Commission.
“Solvent”
shall
mean,
with respect to any Person as of any date of determination, that, as of such
date, (a) the value of the assets of such Person (both at fair value and present
fair saleable value) is greater than the total amount of liabilities (including
contingent and unliquidated liabilities) of such Person, (b) such Person is
able
to pay all liabilities of such Person as such liabilities mature, (c) such
Person does not have unreasonably small capital with which to conduct its
business and (d) such Person may not be declared in concurso mercantíl
in accordance with Articles 9, 10 and 11 of the Mexican Bankruptcy Law (Ley
de Concursos Mercantiles). In computing the amount of contingent
or unliquidated liabilities at any time, such liabilities shall be computed
at
the amount that, in light of all the facts and circumstances existing at such
time, represents the amount that can reasonably be expected to become an actual
or matured liability.
“Subsidiary”
shall mean, as to any Person: (a) any other Person who is directly or indirectly
Controlled by such first Person or (b) any other Person at least 50% of the
Voting Stock or the Capital Stock of which is owned by such first Person; but,
with respect to the Borrower. For the purpose of the Financing Documents, any
Person who is not the Borrower but would be consolidated with the Credit Parties
on a Consolidated Basis shall be considered to be a Subsidiary of the Credit
Party(ies) owning Capital Stock therein. Unless otherwise expressly indicated
herein, reference herein to a Subsidiary refers to a Subsidiary of the Credit
Parties.
“Subsidiary
Joinder Agreement” shall mean an agreement executed by a Guarantor in the
form of Exhibit D.
“Substitute
Rate” shall have the meaning set forth in Section
3.5(c).
“Taxes”
shall mean any present and future tax, assessment, levy, impost, duty,
deduction, fee, withholding or other charge of whatever nature required by
any
Applicable Law (including any penalties or similar amounts with respect thereto
or with respect to the non-payment thereof).
“Telmex”
shall mean Teléfonos de México, S.A. de C.V. and its Affiliates, including
TelNor.
“Telmex
Network” shall mean the telecommunications network owned and operated by
Telmex in México.
“TelNor”
shall mean Teléfonos del Noroeste, S.A. de C.V.
“TIIE”
shall have the meaning assigned thereto in the definition of “Peso
Rate.”
Credit
Agreement 21
“Tranche”
shall mean each of the Dollar Tranche and the Peso Tranche.
“Transaction
Documents” shall mean the Financing Documents and the Material
Documents.
“Type”
shall mean a LIBOR Loan or a Base Rate Loan.
“United
States” and “U.S.” shall each mean the United States of
America.
“Unmatured
Default” shall mean any event or circumstance that, with the giving of
notice, the expiration of any grace period or both, would (if not cured, waived
or otherwise remedied during such time) constitute a Default.
“Unrestricted
Subsidiary” shall mean at any time any Subsidiary of the Borrower that
meets the following criteria at such time: (a) such Subsidiary is a newly
created or acquired Subsidiary of the Borrower designated in writing by the
Borrower to the Administrative Agent as an Unrestricted Subsidiary,
provided that after giving effect to such designation the Borrower is
in compliance with Section 6.2(j), (b) the loss of the Properties held by
such Subsidiary, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Change, (c) such Subsidiary does not
hold a Material Concession, and (d) the designation of such Subsidiary as an
Unrestricted Subsidiary has not been withdrawn by the Borrower in accordance
with Section 6.2(j)(iv).
“Voting
Stock” shall mean Capital Stock in any Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the election
of directors (or individuals performing similar functions) of such Person,
even
if the right so to vote has been suspended by the happening of such a
contingency.
SECTION
1.2 Other Interpretive Provisions. (a) The
meanings of defined terms are equally applicable to the singular and plural
forms of the defined terms.
(b)
The
words “hereof,” “herein,” “hereunder” and similar words refer to this Agreement
as a whole and not to any particular provision of this Agreement; and any
subsection, Section, Article, Schedule and Exhibit references are to this
Agreement unless otherwise specified.
(c)
The
term “documents” includes any and all instruments, documents, agreements,
certificates, indentures, notices and other writings, however
evidenced.
(d)
The
term “including” is not limiting and shall mean “including without
limitation.”
(e)
Unless otherwise specified, in the computation of periods of time from a
specified date to a later specified date, the word “from” shall mean “from and
including,” the words “to” and “until” each shall mean “to but excluding,” and
the word “through” shall mean “to and including.”
(f)
Unless otherwise expressly provided herein: (i) references to agreements
(including this Agreement) and other documents shall be deemed to include all
subsequent amendments and other modifications thereto, but only to the extent
such amendments and other modifications are not prohibited by any Financing
Document, and (ii) references to any
Credit
Agreement 22
Applicable
Law are to be construed as including all statutory and regulatory provisions
or
rules consolidating, amending, replacing, supplementing, interpreting or
implementing such Applicable Law.
(g)
The
Table of Contents, captions and headings of this Agreement are for convenience
of reference only and shall not affect the interpretation of this
Agreement.
(h)
The
Financing Documents may use several different limitations, tests or measurements
to regulate the same or similar matters. All such limitations, tests and
measurements are cumulative and shall be performed in accordance with their
terms. Unless otherwise expressly provided herein, any reference to any action
of any Agent, the Lenders or the Required Lenders by way of consent, approval
or
waiver shall be deemed modified by the phrase “in its/their sole good faith
discretion.”
(i)
The
Financing Documents are the result of negotiations among and have been reviewed
by counsel to the Agents, the Lead Arranger, the Credit Parties and the Lenders,
and are the products of all such Persons. Accordingly, they shall not be
construed against the Lenders, the Lead Arranger or any Agent merely because
of
any such Person’s involvement in their preparation.
(j)
Except as specifically provided herein, any financial covenant or other
provision hereof that requires the combination of Dollars and/or Pesos shall
be
determined in Dollars applying the Exchange Rate; provided that the
exchange rate used in connection with the preparation of any income statement
or
other Financial Statement that, unlike a balance sheet, is based upon events
that occur throughout the reporting period shall be calculated in accordance
with GAAP using the Exchange Rates so published throughout the applicable
period.
SECTION
1.3 Accounting Principles. Unless the context
otherwise clearly requires, all accounting terms not expressly defined herein
shall be construed, and all financial computations required under this Agreement
shall be made, in accordance with GAAP.
ARTICLE
II
THE
CREDITS
SECTION
2.1 Amounts and Terms of Commitments. (a) Each
Dollar Lender severally agrees, on the terms and conditions set forth herein,
to
make Dollar Loans to the Borrower on the Closing Date in an aggregate principal
amount not to exceed such Lender’s Dollar Commitment.
(b)
Each
Peso Lender severally agrees, on the terms and conditions set forth herein,
to
make Peso Loans to the Borrower on the Closing Date, in an aggregate principal
amount not to exceed such Lender’s Peso Commitment.
(c)
The
parties hereto hereby acknowledge and agree that if the Loans are not funded
on
the Closing Date as a result of any failure to satisfy the requirements in
Sections 4.1 and 4.2, then this Agreement (and the other
Financing Documents) shall immediately and automatically terminate except for
such provisions hereof and thereof that (by their terms) survive
termination.
Credit
Agreement 23
(d)
Within the limits of each Lender’s Commitments, and subject to the other terms
and conditions hereof, the Borrower may request Loans hereunder pursuant to
Section 2.3(a) and make prepayments under Section 2.4. Loans
borrowed, once repaid, may not be reborrowed except to the extent provided
in
Section 3.2(b). Upon the making of the Loans on the Closing Date,
all unfunded Commitments (if any) shall immediately and automatically
terminate.
SECTION
2.2 Notes. (a) The Loans made by each Lender shall
be evidenced by one Note for each Lender per Tranche, subscribed by the Borrower
and executed in guaranty (por aval) by each of the Guarantors. Each
Lender shall record in its records the date, Type (for Dollar Loans) and amount
of each Loan made by it and the amount of each payment of principal made by
(or
on behalf of) the Borrower with respect thereto. Each Lender’s record shall
constitute prima facie evidence of the accuracy of the information so
recorded; provided that the failure of a Lender to make, or an error in
making, a notation thereon with respect to any Loan shall not limit or otherwise
affect the Obligations of any Credit Party hereunder or under any such Note
to
such Lender.
(b)
Promptly upon: (i) a conversion of Dollar Loans from LIBOR Loans to Base Rate
Loans or vice versa in accordance with Section 2.6(g), (ii)
the election of the Borrower in accordance with Section 2.6(e) to
change the duration of the Interest Period, (iii) the addition of a new
Guarantor, (iv) any change in organizational structure pursuant to
Section 6.2(i) and/or (v) any assignment of Loans pursuant to
Section 10.8, the Borrower and each Guarantor (por aval) shall,
upon the request of the Administrative Agent, at the expense of the Borrower,
promptly execute and deliver to the Administrative Agent for the account of
each
of the relevant Lenders, in exchange for the Note evidencing the relevant Loans
of such Lender theretofore delivered to such Lender, a new Note or Notes payable
to such Lender and/or such Lender’s assignee, as applicable, dated the Closing
Date, in a principal amount equal to the principal amount then outstanding
of
such Note and otherwise duly completed.
SECTION
2.3 Procedure for Borrowing. (a) The Borrower
shall deliver to the Administrative Agent (by no later than 9:00 a.m. (New
York City time) on the Closing Date) an irrevocable written notice in the form
of a Notice of Borrowing, requesting that the Loans be made on the Closing
Date.
Such Notice of Borrowing: (i) shall be delivered in accordance with the last
paragraph of Section 4.1 and (ii) shall specify: (A) the requested
amounts of the Loans for each Tranche (which were requested on a pro
rata basis) to be borrowed by the Borrower, and (B) for the Dollar Loans,
the Type of Loans requested and, if the Dollar Loans are LIBOR Loans, the
Interest Period therefor. The Administrative Agent will notify each Lender
on or
before the Closing Date of the borrowing request.
(b)
Subject to the conditions precedent set forth in Article IV, each
Lender severally agrees to make the amount of its Pro Rata Share of the
requested Loan of the applicable Tranche available to the Administrative Agent
for the account of the Borrower (in the case of Dollar Loans) at the
Administrative Agent’s applicable Payment Office and (in the case Peso Loans) at
the Peso Agent’s Payment Office, in each case by 10:00 a.m. (New York City
time) on the Closing Date in funds immediately available to the Administrative
Agent. Upon
Credit
Agreement 24
fulfillment
of the conditions precedent to disbursing the Loans in Article IV, the
Administrative Agent shall deliver the proceeds of the Loans to (or on behalf
of) the Borrower as provided in the Notice of Borrowing.
SECTION
2.4 Prepayments: The Borrower shall have the right
to prepay the Loans of either or both Tranches, in whole or in part, without
premium or penalty, from time to time on the following terms and conditions:
(i)
the Borrower shall give the Administrative Agent irrevocable written notice
at
its Notice Office (of which the Administrative Agent shall promptly notify
each
of the Lenders) of its intent to prepay the Loans of one or both Tranches and
the amount of such prepayment, which notice shall be given by the Borrower
at or
prior to 10:00 a.m. (New York City time) at least three Business Days (but
no more than 30 days) before the date of such prepayment, (ii) each partial
prepayment of Loans shall be in an aggregate principal amount of at least
$10,000,000 (or, for the Peso Loans, the Dollar/Peso Equivalent thereof) and,
if
greater, in an integral multiple of $1,000,000 (or, for the Peso Loans, the
Dollar/Peso Equivalent thereof), (iii) each prepayment of Loans pursuant to
this
paragraph shall be applied to the Loans of each Lender under the applicable
Tranche in accordance with such Lender’s pro rata share of Loans under
such Tranche and shall be applied within such Tranche to reduce the remaining
scheduled principal repayments of such Tranche on a pro rata basis and
(iv) each prepayment of Loans pursuant to this paragraph shall be applied as
provided in Section 2.9(d); it being understood that the
Borrower shall deliver to the Administrative Agent such additional amounts
(if
any) necessary so that the amount allocated to the principal prepayment of
the
Loans is the amount indicated to be prepaid on the notice of prepayment. If
such
notice is given by the Borrower, then the Borrower shall make such prepayment
(and the payment amount specified in such notice shall be due and payable)
on
the date specified therein, together with accrued interest to such date on
the
amount prepaid and any amounts required pursuant to
Section 3.4.
SECTION
2.5 Repayment. The Borrower shall repay the
principal of all Loans in full, plus all accrued and unpaid interest
thereon, on each Principal Payment Date as follows:
|
Principal
Payment Date
|
Principal
Payment on Dollar Loans
|
Principal
Payment on Peso Loans
|
|
November
2009
|
$11,022,513.33
|
P$104,236,241.67
|
|
February
2010
|
$11,022,513.33
|
P$104,236,241.67
|
|
May
2010
|
$11,022,513.33
|
P$104,236,241.67
|
|
August
2010
|
$11,022,513.33
|
P$104,236,241.67
|
|
November
2010
|
$11,022,513.33
|
P$104,236,241.67
|
|
February
2011
|
$11,022,513.33
|
P$104,236,241.67
|
|
May
2011
|
$11,022,513.33
|
P$104,236,241.67
|
|
August
2011
|
$11,022,513.33
|
P$104,236,241.67
|
|
Maturity
Date
|
$22,045,026.64
|
P$208,472,483.31
|
Except
to
the extent otherwise specifically provided in the Financing Documents, all
other
Obligations shall be paid on the Maturity Date. Should the Dollar Commitments
or
the Peso Commitments not be fully drawn on the Closing Date, then the repayment
schedule for such
Credit
Agreement 25
Tranche
shall be revised to reduce the scheduled repayments on a pro rata basis
by an aggregate amount equal to the undrawn amount.
SECTION
2.6 Interest. (a) Each Dollar Loan shall bear
interest on the outstanding principal amount thereof from the Closing Date
at a
rate per annum equal to: (i) LIBOR (Reserve Adjusted) plus the
Applicable Margin or (ii) the Base Rate plus the Applicable Base Rate
Margin, as selected by the Borrower. Each Peso Loan shall bear interest on
the
outstanding principal amount thereof from the Closing Date at a rate per
annum equal to the Peso Rate plus the Applicable
Margin.
(b)
Interest on each Loan shall be paid in arrears on each applicable Payment Date.
Accrued interest also shall be paid on the date of any prepayment of Loans
under
Section 2.4 for the portion of the Loans so prepaid.
(c)
Notwithstanding clauses (a) and (b), while any Default
exists: (i) the Borrower shall pay interest (after as well as before entry
of
judgment thereon to the extent permitted by Applicable Law) on the principal
amount of all outstanding Loans and, to the extent permitted by Applicable
Law,
on any other due but unpaid Obligations, at a rate per annum equal to
the applicable Default Rate, and (ii) all such interest shall be payable on
demand of the Administrative Agent (with respect to interest on the Loans)
or
the Person to whom such payment is due.
(d)
Anything herein to the contrary notwithstanding, the Obligations shall be
subject to the limitation that payments of interest shall not be required for
any period for which interest is computed hereunder to the extent (but only
to
the extent) that contracting for or receiving such payment by such Lender would
be contrary to any law applicable to such Lender that limits the highest rate
of
interest that lawfully may be contracted for, charged or received by such
Lender, and in such event the Credit Parties shall pay such Lender interest
at
the highest rate permitted by Applicable Law.
(e)
With
respect to any Interest Period for a Dollar Loan of shorter duration than three
months pursuant to the definition of “Interest Period,” the Borrower shall
notify the Administrative Agent, which notice must be received by the
Administrative Agent not later than 11:00 a.m. (New York City time) at
least three Business Days before the commencement of such Interest Period,
of
the desired duration of such Interest Period.
(f)
The
Administrative Agent promptly (and, in any event, on the day such notice is
received) shall notify each Dollar Lender of its receipt of each notice pursuant
to clause (e).
(g)
The
Borrower may, upon irrevocable written notice given to the Administrative Agent
not later than 11:00 a.m. (New York City time) on the third Business Day
before the date of the proposed conversion, convert all outstanding Dollar
Loans
from LIBOR Loans into Base Rate Loans or from Base Rate Loans into LIBOR Loans;
provided that any conversion of a LIBOR Loan into a Base Rate Loan only
shall be made on the last day of the Interest Period for such LIBOR Loan. Such
notice shall specify: (i) the date of such conversion (which shall be a Business
Day) and (ii) the Dollar Loans to be so converted. The Administrative Agent
promptly shall notify each Dollar Lender of its receipt of each such
notice.
Credit
Agreement 26
SECTION
2.7 Fees. The Borrower shall pay to each Agent, for
its own account, the fees set forth in the separate fee letter(s) between the
Borrower and such Agent pursuant to the terms thereof.
SECTION
2.8 Computation of Fees and Interest. (a) All
computations of interest for Base Rate Loans shall be made on the basis of
the
actual number of days in the applicable year and actual days elapsed. All other
computations of interest and fees shall be made on the basis of a 360-day year
and actual days elapsed. Interest and fees shall accrue during each period
during which such interest or fees are computed from the first day thereof
to
the last day thereof.
(b)
Each
determination of an interest rate (and the related amount of interest payable
on
the Loans) by the Administrative Agent or the Peso Agent, as the case may be,
shall be conclusive and binding upon the Credit Parties and the Lenders in
the
absence of manifest error. The Administrative Agent and the Peso Agent shall,
at
the written request of the Borrower or any Lender, deliver to the Borrower
or
such Lender, as the case may be, a written statement showing the quotations
used
by the Administrative Agent or the Peso Agent, as the case may be, in
determining any interest rate and the resulting interest rate.
SECTION
2.9 Payments by Credit Parties. (a) All payments
to be made by any Credit Party under the Financing Documents shall be made
without set-off, defense, recoupment or counterclaim or other reduction. Except
as otherwise expressly provided herein, all payments by (or on behalf of) any
Credit Party under the Financing Documents shall be made to the Administrative
Agent (in the case of Dollars) or to the Peso Agent (in the case of Pesos),
in
each case for the account of the Lenders (or other applicable recipient) at
the
applicable Payment Office, and shall be made in Dollars or Pesos (as
applicable), and in immediately available funds, no later than 12:00 noon (New
York City time) on the specified payment date. The Administrative Agent or
the
Peso Agent, as the case may be, promptly (and, in any event, on the date
received) shall distribute to each Lender (or other applicable recipient) its
Pro Rata Share (or other applicable share as expressly provided in the Financing
Documents) of such payment in like funds as received. Any payment received
by
the Administrative Agent or the Peso Agent later than 12:00 noon (New York
City
time) on a payment date shall be deemed to have been received on the following
Business Day, and any applicable interest or fee shall continue to accrue;
provided that such shall not be considered to be a Default and no
Default Rate shall be applicable as a result thereof. The Peso Agent (unless
it
is the same institution as the Administrative Agent) shall provide the
Administrative Agent written notice of each payment received by the Peso Agent
from (or on behalf of) the Credit Parties.
(b)
Whenever any payment is due on a day other than a Business Day, such payment
shall be made on the preceding Business Day, and such reduction of time shall
in
such event be included in the computation of interest or fees, as the case
may
be.
(c)
Unless the Administrative Agent or the Peso Agent, as the case may be, receives
notice from the Borrower before the date on which any payment is due to the
Lenders that the Borrower (or the Guarantors on its behalf) shall not make
such
payment in full as and when required, such Agent may assume that the Credit
Parties have made such payment in full to such Agent on such date in immediately
available funds and such Agent may (but shall not be so required), in reliance
upon such assumption, distribute to each Lender on such due
Credit
Agreement 27
date
an
amount equal to the amount then due such Lender. If and to the extent the Credit
Parties have not made such payment in full to such Agent, then each Lender
shall
repay to such Agent on demand such amount so distributed to such Lender by
such
Agent, together: (i) with respect to the Dollar Loans, with interest thereon
at
the Federal Funds Rate, and (ii) with respect to the Peso Loans, with interest
thereon at the customary rate charged by the Peso Agent for Peso overdrafts,
for
each day from the date such amount is distributed to such Lender to the date
repaid to such Agent. The giving of notice by the Borrower to any Agent that
the
Borrower shall not make (or cause the Guarantors to make) any payment in full
as
and when required shall not be construed in any manner whatsoever as: (x) a
consent by the Financing Parties to such failure to pay or (y) a waiver to
any
of the rights that the Financing Parties may have.
(d)
Payments received by any Agent from (or on behalf of) the Borrower in respect
of
Loans shall be applied as follows: first, to any fees (on a pro
rata basis) due pursuant to Section 2.7; second, to
any interest (including, if applicable, at the Default Rate) due and payable
pursuant to Section 2.6 (including, pursuant to
Section 2.6(b), on any amount of the Loans that is prepaid), such
interest to be paid pro rata to each Lender under the applicable
Tranche; third, to principal due and payable pursuant to
Sections 2.4 and 2.5, such principal to be paid pro
rata to each Lender under the applicable Tranche; and fourth, to
all other Obligations payable in connection with the Financing Documents in
such
order as shall be determined by the Required Lenders; it being
understood that the Payment Dates for interest for the Loans may not be
concurrent and any payment of interest with respect to a Loan shall be applied
only to interest then due and payable on the Loans.
SECTION
2.10 [RESERVED]
SECTION
2.11 Sharing of Payments, Etc. If, other than as
expressly provided elsewhere herein, any Lender shall obtain on account of
the
Loans held by it any payment (whether voluntary, involuntary, through the
exercise of any right of set-off or otherwise) in excess of its Pro Rata Share
(or other share contemplated hereunder), then such Lender shall promptly: (a)
notify the Administrative Agent of such fact and (b) purchase from the other
Lenders such participations in the Loans made by them as shall be necessary
to
cause such purchasing Lender to share the excess payment pro rata with
each of the other Lenders in accordance with such Lender’s Pro Rata Share;
provided that if all or any portion of such excess payment is
thereafter recovered from the purchasing Lender, then 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 ratable share (according to the proportion of: (i) the amount of
such paying Lender’s required repayment to (ii) 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; and
provided further that if such participations would be in a Loan in a
currency other than such Lender’s Loans, then such Lender may deliver the
applicable portion of such amounts to the other applicable Lender(s) for
application as a payment of such Loans and such amounts shall be considered
as
having been repaid to such other Lender(s) instead of such first Lender. The
Credit Parties agree that any Lender so purchasing a participation from another
Lender may, to the fullest extent permitted by Applicable Law, exercise all
its
rights to receive payment (including the right of set-off, but subject to
Section 10.9) with respect to such participation as fully as if such
Lender were the direct creditor of the Credit Parties in the amount of such
participation and not subject to the restrictions on Participant voting rights
under Section 10.8(c). The Administrative Agent shall keep records (which
shall be conclusive and binding in the absence of manifest error) of
participations purchased under this Section and in each case shall notify the
Lenders following any such purchases or repayments.
Credit
Agreement 28
ARTICLE
III
TAXES
AND ILLEGALITY
SECTION
3.1 Taxes. (a) Any and all payments by the Credit
Parties to the Financing Parties under the Financing Documents shall be made
free and clear of and without deduction or withholding for any and all present
and future Taxes, excluding: (i) in the case of each such Financing Party,
taxes
imposed upon or measured by its net income or net profits, and franchise or
similar taxes and branch profits or similar taxes imposed upon it, by any
jurisdiction as a result of any current or former connection between such
Financing Party and such jurisdiction or any political subdivision or taxing
authority thereof or therein (other than any such connection arising solely
from
such Financing Party having executed, delivered or performed its obligations
or
received a payment under, or having been a party to, or having enforced this
Agreement or any other Financing Document) and (ii) taxes imposed by any
jurisdiction outside México other than any taxes that arise as a result of any
Credit Party causing payment to be made from or through a jurisdiction other
than México (all such excluded Taxes are herein referred to as “Excluded
Taxes” and all Taxes that are not Excluded Taxes are herein referred to as
“Covered Taxes”).
(b)
If
any Credit Party shall be required by Applicable Law to deduct or withhold
any
Covered Taxes from or in respect of any sum payable under any Financing Document
to any Financing Party, then:
(i)
the
sum payable shall be increased by such additional amounts (the “Additional
Amounts”) as necessary so that, after making all required deductions and
withholdings of Covered Taxes, such Financing Party receives an amount equal
to
the sum it would have received had no such deductions or withholdings of Covered
Taxes been made,
(ii)
such
Credit Party shall make such deductions and withholdings, and
(iii)
such Credit Party promptly shall pay the full amount deducted or withheld to
the
relevant taxing authority or other authority in accordance with Applicable
Law;
provided
that notwithstanding any contrary provisions and excluding any Person organized
under the laws of México and any Export Credit Agency from the applicability of
this proviso, the Credit Parties shall not be obligated to pay to any Financing
Party any amounts described in this Section 3.1 in respect of any
portion of Covered Taxes (including any Additional Amounts) that would not
have
been imposed but for the failure of such Financing Party: (A) to be registered
with Hacienda as a Foreign Financial Institution, or (B) to be a resident (or
to
have the principal offices of such Financing Party be a resident, if such
Financing Party lends through a branch or agency) for tax purposes, of a country
with which México has entered into a treaty that is in effect for the avoidance
of double taxation, entitled to the benefits of such treaty and to the reduced
rate established in such treaty for the type
Credit
Agreement 29
of
interest provided therein, or (C) to comply with any certification,
identification, information, declaration or other reporting requirements or
to
deliver to the Credit Parties information, documentation or other evidence
concerning the nationality, residence, identity or registration with Hacienda
of
such Financing Party, in each case if compliance is required by a statute,
treaty or regulation of México or any political subdivision thereof or any
taxing authority therein or general administrative practice of a Mexican
Governmental Authority as a precondition or requirement to the exemption from,
or the reduction in the rate of, deduction or withholding of Taxes;
provided that any such Financing Party may cure any such failure in
order to receive such Additional Amounts if such cure is sufficiently timely
to
effect or obtain the exemption from or reduction in the rate of deduction or
withholding of Taxes.
(c)
Each Financing Party (other than a
Person that is organized under the laws of México or an Export Credit Agency)
represents and warrants to the Credit Parties that such Financing Party is
registered as a Foreign Financial Institution with Hacienda and resident of
a
country that is a party to a treaty with México for the avoidance of double
taxation entitled to the benefits of such treaty and to the reduced rate
established in such treaty for the type of interest provided
therein.
(d)
Each
Credit Party agrees to indemnify and hold harmless each Financing Party for
any
Covered Taxes and Other Taxes paid by such Financing Party in connection with
the execution, delivery and performance of this Agreement, including penalties
and interest arising therefrom or with respect thereto, whether or not such
Covered Taxes and Other Taxes were correctly or legally asserted. Payment under
this indemnification shall be made within 30 days after the date on which such
Financing Party makes written demand therefor.
(e)
Within 30 days after the date of any payment by any Credit Party of any Covered
Taxes in connection with any payment by any Credit Party under the Financing
Documents, such Credit Party shall furnish to the Administrative Agent (for
distribution to the applicable Financing Party(ies)) the original or a certified
copy of a receipt evidencing payment thereof, or other evidence of payment
reasonably satisfactory to the Administrative Agent.
(f)
Each
Financing Party (other than any Person organized under the laws of México or an
Export Credit Agency) shall use reasonable efforts (consistent with legal and
regulatory restrictions): (i) to file any certificate or document or to furnish
any information as reasonably requested by a Credit Party pursuant to any
applicable treaty, law or regulation or (ii) to designate a different Lending
Office, if the making of such a filing, the furnishing of such information
or
the designation of such other Lending Office would avoid the need for or reduce
the amount of any Additional Amounts payable by the Credit Parties pursuant
to
this Section and would not, in the sole judgment of such Financing Party, be
illegal or otherwise disadvantageous to such Financing Party. It is understood
and agreed that nothing in this Section shall interfere with the rights of
any
Financing Party to conduct its fiscal and tax affairs in such manner as it
deems
fit.
(g) (i) If
any additional amounts or indemnity payments are made by the Credit Parties
to
any Financing Party with respect to any Covered Taxes or Other Taxes pursuant
to
this Section 3.1 and such Financing Party in its reasonable discretion is
entitled to a refund of such Covered Taxes or Other Taxes from the taxing
jurisdiction to which the
Credit
Agreement 30
Covered
Taxes or Other Taxes were paid, then such Financing Party shall, to the extent
that it can do it so without prejudice to the retention of the amount of such
refund, make reasonable efforts that would not materially prejudice such
Financing Party or otherwise be detrimental to such Financing Party to apply
for
such refund and reimburse to the Credit Parties such amount of any refund
received (net out-of-pocket expenses incurred).
(ii) If
any payment is made by the Credit Parties to or for the account of any Financing
Party after deduction for or on account of any Covered Taxes or Other Taxes,
and
increased payments are made by the Credit Parties pursuant to this Section
3.1, then, if such Financing Party at its reasonable discretion determines
that it has received or been granted a refund or credit for such Covered Taxes
or Other Taxes, such Financing Party shall, to the extent that it can do so
without prejudice to the retention of the amount of such refund or credit,
reimburse to the Credit Parties such amount as such Financing Party shall
determine in its reasonable discretion to be attributable to the relevant
Covered Taxes, Other Taxes, or deduction, or withholding. Nothing
herein contained shall oblige any Financing Party to disclose its tax returns
or
any other information it deems confidential taking into account the other
provisions of this Section 3.1(g).
(h)
The
Credit Parties shall be responsible for the payment of any and all Other Taxes
and any interest and penalties related thereto.
SECTION
3.2 Illegality. (a) If, on or after the Closing
Date, any Lender determines that the introduction of any Applicable Law, any
change in any Applicable Law or in the interpretation or administration of
any
Applicable Law, or any other reason whatsoever has made it unlawful, or that
any
Governmental Authority has asserted that it is unlawful, for any Lender under
the Dollar Tranche or its applicable Lending Office to make or maintain LIBOR
Loans, then, on written notice thereof by such Lender to the Borrower through
the Administrative Agent, any obligation of such Lender to continue (or convert
Base Rate Loans into) LIBOR Loans shall be suspended until such Lender notifies
the Administrative Agent and the Borrower in writing that the circumstances
giving rise to such determination no longer exist.
(b)
If a
Lender under the Dollar Tranche determines that it is unlawful to maintain
any
outstanding LIBOR Loan, then the Borrower shall, upon its receipt of written
notice of such fact and demand from such Lender (with a copy to the
Administrative Agent), prepay in full any LIBOR Loan of such Lender then
outstanding, together with interest accrued thereon, either on the last day
of
the Interest Period thereof or, if earlier, on the date on which such Lender
may
no longer lawfully continue to maintain such LIBOR Loan. If the Borrower is
required so to prepay any LIBOR Loan, then, concurrently with such prepayment,
the Borrower shall borrow from the affected Lender, in the amount of such
repayment, a Base Rate Loan having the same principal amount; it being
understood that any such repayment by the Borrower shall not constitute a
repayment of the Loan hereunder pursuant to
Section 2.5.
(c)
If
the obligation of any Lender under the Dollar Tranche to continue (or convert
Base Rate Loans into) LIBOR Loans has been so terminated or suspended, then
all
Loans that otherwise would be continued (or converted) by such Lender as LIBOR
Loans shall be maintained as Base Rate Loans instead.
Credit
Agreement 31
(d)
Before giving any notice to the Administrative Agent or demand upon the Borrower
under this Section, an affected Lender shall designate a different Lending
Office with respect to its LIBOR Loans if such designation shall avoid the
need
for giving such notice or making such demand and shall not, in the sole judgment
of such Lender, be illegal or otherwise disadvantageous to such
Lender.
SECTION
3.3 Increased Costs and Reduction of Return. (a)
If any Lender determines that, due to either: (i) the introduction of or any
change in or in the interpretation of any Applicable Law or (ii) the compliance
by such Lender with any guideline or request from any Governmental Authority
(whether or not having the force of law), there shall be any increase in the
cost to such Lender of agreeing to make or making, funding or maintaining any
Loan, then the Borrower shall be liable for, and from time to time, promptly
upon demand (with a copy of such demand to be sent to the Administrative Agent),
shall pay to the Administrative Agent (or, in the case of a payment in Pesos,
to
the Peso Agent) for the account of such Lender, additional amounts as are
sufficient to compensate such Lender for such increased costs (calculated in
accordance with Section 3.4). For the avoidance of doubt,
this Section 3.3 does not apply to Taxes which are covered solely by
Section 3.1.
(b)
If
any Lender shall determine that: (i) the introduction of any Capital Adequacy
Regulation, (ii) any change in any Capital Adequacy Regulation, (iii) any change
in the interpretation or administration of any Capital Adequacy Regulation
by
any Governmental Authority charged with the interpretation or administration
thereof or (iv) compliance by such Lender (or its Lending Office) or any Person
controlling such Lender with any Capital Adequacy Regulation, affects or would
affect the amount of capital required or expected to be maintained by such
Lender, its Lending Office or such Person and (taking into consideration such
Lender’s, such Lending Office’s or such Person’s policies with respect to
capital adequacy and such Lender’s or such Person’s desired return on capital)
determines that the amount of such capital is increased as a consequence of
its
Commitment, Loans, credits or obligations under this Agreement, then, upon
written demand of such Lender to the Borrower through the Administrative Agent,
the Borrower promptly shall pay to the Administrative Agent (or, in the case
of
a payment in Pesos, to the Peso Agent) for the account of such Lender, from
time
to time as specified by the Lender, additional amounts sufficient to compensate
such Lender for such increase.
SECTION
3.4 Funding Losses. Within fifteen days after
demand, the Borrower shall reimburse each Lender and hold each Lender harmless
from any loss or expense that such Lender has sustained or incurred as a
consequence of:
(a)
the
failure of the Borrower to make on a timely basis any payment of principal
or
interest of any LIBOR Loan or Peso Loan,
(b)
the
failure of the Borrower to borrow a Loan on the Closing Date,
(c)
the
failure of the Borrower to make any prepayment of any LIBOR Loan or Peso Loan
in
accordance with Section 2.4, and
Credit
Agreement 32
(d)
the
prepayment or other payment (including after acceleration thereof for any
reason) of a LIBOR Loan or a Peso Loan on a day that is not the last day of
the
relevant Interest Period, in each case other than a prepayment required pursuant
to Section 3.2(b),
including
any such loss or expense arising from the liquidation or reemployment of funds
obtained by such Lender to maintain its LIBOR Loans or Peso Loans, as the case
may be (but excluding loss of the Applicable Margin for the period after any
such payment or failure to borrow or prepay), or from fees payable to terminate
the deposits from which such funds were obtained. For purposes of calculating
amounts payable by the Borrower to the Lenders under this Section and under
Section 3.3(a), each LIBOR Loan and Peso Loan made by a Lender (and
each related reserve, special deposit or similar requirement) conclusively
shall
be deemed to have been funded at LIBOR (Reserve Adjusted) or the Peso Rate
(as
applicable) applicable to such Loan by a matching deposit or other borrowing
for
a comparable amount and for a comparable period, whether or not such Loan is
in
fact so funded.
SECTION
3.5 Inability to Determine Rates. (a) If the
Administrative Agent determines that for any reason adequate and reasonable
means do not exist for determining LIBOR for any Interest Period with respect
to
a proposed LIBOR Loan, then the Administrative Agent promptly shall so notify
the Borrower and each Dollar Lender. Thereafter, the obligation of the Dollar
Lenders to make or maintain LIBOR Loans hereunder shall be suspended until
the
Administrative Agent revokes such notice in writing, which revocation shall
be
promptly given upon such adequate and reasonable means of determining LIBOR
becoming available. If LIBOR Loans are then outstanding, then such Lenders
shall
continue such Loans as Base Rate Loans during each following Interest Period
for
such Loan until the Administrative Agent revokes such notice in
writing.
(b)
If
any Dollar Lender determines that LIBOR applicable to any Interest Period with
respect to a LIBOR Loan would not adequately and fairly reflect the cost to
such
Lender of funding such LIBOR Loan, then such Lender promptly so shall notify
the
Administrative Agent and the Borrower. Thereafter, the obligation of such Lender
(but not the other Dollar Lenders) to make or maintain LIBOR Loans hereunder
shall be suspended until such Lender revokes such notice in writing, which
revocation shall be promptly given as soon as such Dollar Lender determines
that
the applicable LIBOR would adequately and fairly reflect its cost of funding
such LIBOR Loan. If LIBOR Loans are then outstanding, then such Dollar Lender
shall continue such Loans as Base Rate Loans during each following Interest
Period for such Loan until such Dollar Lender revokes such notice in
writing.
(c)
If
Banco de México for any reason is not publishing the TIIE as
contemplated by the definition of “Peso Rate”, whether permanently or
temporarily, then the Peso Rate shall instead be calculated based upon the
rate
that Banco de México has published in substitution for such published
rate (a “Banco de MéxicoReplacement Rate”), and the term “Peso
Rate” shall be deemed to be amended to refer to the Banco de México Replacement
Rate. In the event that Banco de México does not publish a Banco de
México Replacement Rate, if a substitute rate has been agreed by
the Borrower and each of the Peso Lenders (a “Substitute Rate”) then
all references in this Agreement to Peso Rate shall thereafter be deemed to
be
amended to refer to such Substitute Rate. Notwithstanding the foregoing, the
following provisions shall apply:
Credit
Agreement 33
(i)
at
any time when this Section 3.5(c) is operative, any Peso Loan that
was made prior to the date on which Banco de México ceased to publish
the TIIE as contemplated by the definition of “Peso Rate” shall continue to bear
interest until the next Payment Date at the rate of interest applicable to
such
Peso Loan at the time when it was made,
(ii)
if
the TIIE ceases to be published by Banco de México, and after a period
of 30 consecutive days Banco de México has not published a Banco de
México Replacement Rate and the Peso Lenders and the Borrower have not agreed
upon a Substitute Rate, then: (A) the Peso Rate shall be the rate for
Certificados de la Tesorería de la Federación for
28 days, published by Banco de México and (B) if Banco de
México fails to publish such rate, the market rate determined jointly by
the Peso Lenders, in their reasonable discretion, as reflecting their cost
of
funding in a manner similar to that which would have applied had such published
rate been in effect, and such market rate shall be notified from time to time
by
the Peso Lenders to the Administrative Agent and the Borrower, and
(iii)
any
Substitute Rate or other rate that becomes effective pursuant to this
Section 3.5(c) shall cease to be applicable if at any time (and as
of such time as) Banco de México again publishes the TIIE as
contemplated by the definition of “Peso Rate” or a Banco de México Replacement
Rate.
SECTION
3.6 Certificates of the Lenders and Agents. Any
Lender or Agent claiming reimbursement or compensation under this Article shall
deliver to the Borrower (with a copy to the Administrative Agent and (for Peso
Loans) the Peso Agent) a certificate setting forth in reasonable detail the
reason for such reimbursement or compensation and the amount payable to such
Lender or Agent hereunder, which certificate shall constitute prima
facie evidence of the accuracy of the information so detailed.
SECTION
3.7 Substitution of Lenders. If any Lender (an
“Affected Lender”) fails to meet the status referenced
in Section
3.1(b) or is entitled to additional amounts or indemnity payments under
Section 3.3 of this Agreement, the Borrower may: (i) request the Affected
Lender to use reasonable efforts to obtain a replacement bank or financial
institution satisfactory to the Borrower (a “Replacement Lender”) to
acquire and assume all or a portion of all of such Affected Lender’s Loans and
Commitment, (ii) request one or more of the other Lenders to acquire and assume
all or part of such Affected Lender’s Loans and Commitment; it being
understood that no such other Lender shall be so required to acquire and
assume any of such Loans and/or Commitments, or (iii) designate a Replacement
Lender. Any designation of a Replacement Lender under clause (i) or
(iii) shall be subject to the prior written consent of the Administrative
Agent (which consent shall not be unreasonably withheld or delayed and shall
be
deemed to have been given if no negative response shall have been received
from
the Administrative Agent within five Business Days of the Administrative Agent’s
receipt of a request for such consent) and the other provisions relating to
the
assignment set forth in Section 10.8.
SECTION
3.8 Survival. With the exception of the
obligations of the Credit Parties under Section 3.1 (which
obligations shall survive indefinitely), the agreements and obligations of
the
Credit Parties in this Article shall survive until the irrevocable payment
in
full of all Obligations in Dollars and Pesos, as applicable, and the
cancellation of all the Commitments.
Credit
Agreement 34
ARTICLE
IV
CONDITIONS
PRECEDENT
SECTION
4.1 Conditions Precedent to Making Loans. The
obligation of each Lender to make its Loans is subject to the conditions that
on
the Closing Date:
(a)
Transaction Documents.
(i)
Each
of the Financing Documents shall have been duly authorized, executed and
delivered by each party thereto. Each Financing Party shall have received an
original of each Financing Document to which it is a party executed by all
parties thereto.
(ii)
The
Borrower shall have duly authorized and executed a Note for each Tranche (and,
if the Borrower have requested both LIBOR Loans and Base Rate Loans for the
Dollar Loans, for each such Type) for the account of each applicable Lender
duly
executed in guaranty (por aval) by each Guarantor. Each
Note shall be appropriately completed with the name and address of the Lender,
the principal amount of the Loans of the applicable Tranche made by the
applicable Lender and the date of issuance (which shall be the Closing Date)
inserted therein. Each Note shall be delivered by the Borrower to the
Administrative Agent. As soon as practicable after the Closing Date, the
Administrative Agent shall deliver the Notes received by it pursuant to the
preceding sentence to the respective Lenders.
(b)
Financial Statements. Each Financing Party shall have received: (i)
copies of year-end 2004 and 2005 audited consolidated Financial Statements
prepared in accordance with GAAP of each of: (A) the Borrower (on a consolidated
basis), and (B) the Avantel Companies (on a combined basis), (ii) copies of
third quarter 2006 unaudited consolidated Financial Statements for the Borrower,
to the extent available before the Closing Date, (iii) certificates dated the
Closing Date and signed by an Authorized Officer of the Borrower stating that:
(A) such Financial Statements are true, complete and correct in all material
respects and (B) no Material Adverse Change has occurred, and (iv) consolidated
Financial Statements of the Credit Parties for the 2004 and 2005 Fiscal Years
and the nine-month period ending September 30, 2006 prepared on a pro
forma basis as if the Acquisition had occurred.
(c)
Evidence of Authority. The Administrative Agent shall have received the
names, specimen signatures and evidences of authority of the Persons signing
the
Financing Documents on behalf of the Credit Parties.
(d)
Corporate Proceedings. The Administrative Agent shall have received a
copy of the Organizational Documents and resolutions of the board of directors
(or other appropriate authorizing actions (including any necessary equityholder
or similar approval) or documents) of each Credit Party authorizing the
execution, delivery and performance by each such Credit Party of each Financing
Document to which it is a party, in each case certified by the Secretary or
an
Assistant Secretary (or other
Credit
Agreement 35
appropriate
officer) of such Credit Party as of the Closing Date; and each such certificate
shall be in form and substance satisfactory to each Financing Party and shall
state that the resolutions (or other authorizing actions or documents) thereby
certified have not been amended, modified, revoked or rescinded and are in
full
force and effect on and as of the Closing Date.
(e)
Legal Opinions. The Lead Arranger and each of the Financing Parties shall
have received the following legal opinions, which legal opinions shall be dated
the Closing Date, addressed to the Lead Arranger and each Financing Party and
in
the forms attached hereto as Exhibit E:
(i)
the
opinion of Xxxxxx Xxxxxx & Xxxxxxx LLP, special New York counsel to the
Credit Parties,
(ii)
the
opinion of Mayer, Brown, Xxxx & Maw LLP, special New York counsel to the
Agents and the Lenders,
(iii)
the
opinion of D&A Xxxxxxx & Asociados, S.C., special Mexican counsel to the
Credit Parties,
(iv)
the
opinion of internal Mexican counsel of the Borrower,
(v)
the
opinion of internal Mexican counsel of the Avantel Companies, and
(vi)
the
opinion of Xxxxx Xxxxxxx, S.C., special Mexican counsel to the Agents and the
Lenders.
(f)
Approvals and Other Consents. The Administrative Agent shall have
received a certificate of an Authorized Officer of the Borrower certifying
that
all: (i) Governmental Approvals set forth in Schedule 5.1(i) with
respect to the Financing Documents and the Acquisition and the conduct of the
business of the Borrower and its Subsidiaries, except for such Government
Approvals relating to but not material to the conduct of the business of the
Borrower and its Subsidiaries, are in full force and effect and, except as
disclosed in such Schedule, not currently being appealed, and (ii) other
consents, if any, necessary for the Credit Parties’ execution, delivery and
performance of the Financing Documents and all Credit Parties’ participation in
the Acquisition have been obtained and are in full force and
effect.
(g) [RESERVED]
(h)
Fees and Expenses. All fees and expenses (including Attorney Costs) due
and payable by the Credit Parties to the Lead Arranger or any Financing Party
pursuant to a Financing Document (or otherwise pursuant to
Sections 2.7 and/or 10.4 and/or otherwise) on or before the
Closing Date shall have been paid or the Credit Parties shall have made
arrangements satisfactory to the applicable recipient(s) for the payment
thereof. The Administrative Agent shall have received evidence of payment by
the
Credit Parties of all such accrued and unpaid fees and expenses to the extent
then due and payable on the Closing Date, together with Attorney Costs of the
Lead
Credit
Agreement 36
Arranger
and the Agents to the extent invoiced on or before the Closing Date,
plus such additional amounts of Attorney Costs as shall constitute the
Lead Arranger’s and Agent’s reasonable estimate of Attorney Costs incurred or to
be incurred by it through the closing proceeding (provided that such
estimate shall not thereafter preclude final settling of accounts between the
Credit Parties and the Lead Arranger or Agent, as applicable), including any
such costs, fees and expenses arising under or referenced in
Sections 2.7 and/or 10.4.
(i)
Process Agent. The Administrative Agent shall have received from each
Credit Party evidence that: (i) such Person has irrevocably appointed as its
agent for service of process (with respect to all of the Financing Documents
and
all other related agreements to which they are a party) CT Corporation System,
000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the “Process Agent”), (ii)
a notarized power of attorney has been granted to such agent by all such Persons
organized in México and (iii) the Process Agent has accepted such appointment
and has agreed to forward promptly to such Person all legal process addressed
to
such Person received by such agent.
(j)
[RESERVED]
(k)
Borrower’s Certificate. The Administrative Agent shall have received a
certificate signed by an Authorized Officer of the Borrower, dated the Closing
Date, to the effect that: (i) no Default or Unmatured Default exists or will
exist immediately after the funding of the Loans and (ii) all representations
and warranties of the Borrower and each other Credit Party contained herein
and/or in the other Financing Documents are true and correct on and as of such
date, except to the extent that any such representation or warranty is expressed
to be made only as of an earlier date, in which case such representation or
warranty was true and correct on and as of such earlier date.
(l)
Termination of Existing Credit Agreement. The Administrative Agent shall
have received the agreement of the administrative agent and collateral agent
under the Existing Credit Agreement that all Existing Liens shall be immediately
released upon such administrative agent’s receipt of an amount identified in a
“pay-out” letter delivered to the Administrative Agent on or before the Closing
Date; provided that the formalization, filing and registration of the
Release Documentation shall be conducted as provided in Section 6.1(j);
it being understood that the Administrative Agent shall deliver (and
the Borrower has irrevocably instructed the Administrative Agent to deliver)
such amounts in Dollars and Pesos to (or upon the instructions of) the
administrative agent under the Existing Credit Agreement on the Closing Date
in
the manner provided in Section 2.3(b).
(m)
Acquisition. The Acquisition shall be consummated simultaneously with the
funding hereunder in accordance with Applicable Law and on the terms described
in the agreements listed on Schedule 4.1(m) (the “Acquisition
Documentation”); the Acquisition Documentation and all other related
documentation shall be reasonably satisfactory to the Lead Arranger and the
Administrative Agent; and the Administrative Agent shall be reasonably satisfied
with any change proposed to the capitalization,
Credit
Agreement 37
structure
and equity ownership of each of the Borrower and the Avantel Companies after
giving effect to the Acquisition, from such capitalization, structure and equity
ownership as heretofore described to the Administrative Agent.
(n)
Solvency. The Administrative Agent shall have received a certificate of
the Borrower signed by the chief financial officer of the Borrower certifying
that the Borrower and its Subsidiaries, on a Consolidated Basis after giving
effect to the Acquisition and the other transactions contemplated hereby, are
Solvent.
(o)
Know Your Customer. The Administrative Agent shall have
received, at least five Business Days prior to the Closing Date, all
documentation and other information required by regulatory authorities under
applicable “know your customer” and anti-money laundering rules and regulations,
including without limitation the PATRIOT Act.
(p)
Ratings. The Borrower shall have corporate ratings from S&P of at
least “B+” and from Xxxxx’x of at least “B1”.
(q)
Bridge Credit Agreement. The Lead Arranger and each Financing Party shall
have received confirmation satisfactory to it with respect to the closing and
funding under the Bridge Credit Agreement occurring simultaneously with the
funding hereunder.
(r)
Additional Matters. Each Financing Party shall have received such other
documents relating to the Acquisition, this Agreement or any other Transaction
Document or the transactions contemplated hereby or thereby as it shall have
reasonably requested, in each case in form and substance satisfactory to
it.
(s)
Notice of Borrowing. The Borrower shall have delivered a Notice of
Borrowing in accordance with Section 2.3.
(t)
No
Default; Representations and Warranties. Immediately before and after giving
effect to such Loans: (i) no Default or Unmatured Default shall exist and (ii)
all representations and warranties made by any Credit Party contained herein
or
in the other Financing Documents shall be true and correct, except to the extent
that any such representation or warranty is expressed to be made only as of
an
earlier date, in which case such representation or warranty shall have been
true
and correct on and as of such earlier date.
(u)
Schedules. The informational schedules to this Agreement (Schedules
4.1(l), 4.1(m), 5.1(b), 5.1(c), 5.1(f),
5.1(i), 5.1(l), 6.1(k) and 6.2(a)(vii)) shall
be
provided by the Borrower on or before the Closing Date, in form and substance
satisfactory to the Administrative Agent and upon the Borrower’s delivery of
such Schedules to the Administrative Agent, the Administrative Agent shall
include such Schedules in this Agreement as if such Schedules had been included
on the date hereof.
The
Notice of Borrowing submitted by the Borrower hereunder shall constitute a
representation and warranty by the Borrower that, as of the date of such notice
or request and as of the Closing Date, the conditions in this Section shall
be
satisfied on or before (in which event, they shall continue to be satisfied
on)
the Closing Date.
Credit
Agreement 38
SECTION
4.2 Satisfaction of Conditions Precedent. Each
Lender shall be deemed to have agreed to and accepted each document and opinion,
and to have approved or accepted each other matter, delivered in connection
with
Section 4.1 unless such Lender notifies the Administrative Agent in
writing that it does not so agree with or accept such document, opinion or
other
matter before making the amount of its Loan available to the Administrative
Agent or the Peso Agent.
ARTICLE
V
REPRESENTATIONS
AND WARRANTIES
SECTION
5.1 Representations and Warranties. Each Credit
Party (with respect to itself and each of its Subsidiaries) makes all of the
representations and warranties in this Article to and in favor of the Financing
Parties as of the Closing Date, except to the extent any of such representations
or warranties specifically relate to an earlier date (in which case they shall
have been true and correct on and as of such earlier date); it being
understood that the following representations and warranties are made as if
the Existing Credit Agreement (which is to be fully repaid on the Closing Date
from the proceeds of the Loans and otherwise terminated as provided in
Section 2.3) and any security document and other related document
into entered in connection therewith did not exist.
(a)
Organization. Each Credit Party is a corporation or other entity duly
organized and validly existing under the laws of its jurisdiction of
organization. Each Credit Party is duly authorized and qualified to do business
in each jurisdiction in which it owns or leases Property or in which the conduct
of its business requires it so to qualify, except where the failure so to
qualify, individually or in the aggregate, could not reasonably be expected
to
result in a Material Adverse Change. Each Credit Party has the requisite power
and authority to own or lease and operate its Properties, to carry on its
business, to borrow money and to execute, deliver and perform each Transaction
Document to which it is or will be a party.
(b)
Authority and Consents.
(i)
The
execution, delivery and performance by each Credit Party of each Financing
Document to which it is or will be a party, and the transactions contemplated
thereby, and the Acquisition: (A) have been duly authorized by all necessary
corporate action (including any necessary equityholder or similar action),
(B)
will not breach, contravene, violate, conflict with or constitute a default
under: (1) any of its Organizational Documents, (2) any Applicable Law or (3)
any material contract, loan, agreement, indenture, mortgage, lease or other
document or requirement to which it is a party or by which it or any of its
Properties may be bound or affected, including all material Governmental
Approvals and the Transaction Documents, and (C) will not result in or require
the creation or imposition of any Lien upon or with respect to any of the
Properties or Capital Stock of any Credit Party.
Credit
Agreement 39
(ii)
Each
Financing Document: (A) has been duly executed and delivered by the applicable
Credit Parties and (B) when executed and delivered by each of the other parties
thereto will be the legal, valid and binding obligation of each applicable
Credit Party, enforceable against such Credit Party in accordance with its
terms
(including with respect to any submission to jurisdiction and the choice of
law
specified therein), except as enforceability may be limited by applicable
concurso mercantil, quiebra, bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors’ rights with
respect to such Credit Party.
(iii)
No
authorization, consent or approval of, or notice to or filing with, the SCT,
the
COFETEL, any other Governmental Authority or any other Person has been, is
or
will be required to be obtained or made: (A) for the Acquisition, (B) for the
due execution, delivery, recordation, filing or performance by any Credit Party
of any of the Financing Documents to which it is a party or any transaction
contemplated by the Financing Documents or (C) for the exercise by any Financing
Party of any of its rights under any Financing Document, except for: (1) the
authorizations, consents, approvals, notices and filings listed on
Schedule 5.1(b), all of which have been duly obtained, taken, given
or made and are in full force and effect, and (2) any authorization, approval,
consent, notices or filings the failure of which to obtain, individually or
in
the aggregate, could not reasonably be expected to result in a Material Adverse
Change.
(iv)
This
Agreement and each of the other Transaction Documents are in proper legal form
under the Applicable Law of México and New York for the enforcement thereof in
each such jurisdiction and no related filings, registrations, recordings or
Other Taxes are required to be made or paid in connection therewith other than
any such filings, registrations, recordings or payments the failure of which
to
make, individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Change.
(v)
To
the knowledge of each Credit Party, there is no requirement for the Lead
Arranger or any Financing Party to be licensed or qualified with any
Governmental Authority of México or the United States of America solely by
reason of the execution and performance of the Financing Documents.
(c)
Financial Condition.
(i)
The
Financial Statements for the Borrower and its Subsidiaries delivered in
accordance with Section 4.1(b) have been prepared in accordance with
GAAP, are complete and correct in all material respects and fairly present
the
financial condition of the Borrower and its Subsidiaries as at the applicable
dates and the results of their operations for the periods ended on such dates,
subject, in the case of interim statements, to normal year-end audit
adjustments.
(ii)
Except for Indebtedness disclosed in the Financial Statements for the Borrower
and its Subsidiaries delivered in accordance with Section 4.1(b) and
Indebtedness specifically identified in Schedule 5.1(c), as of the
Closing Date no Credit Party has any Contingent Obligation, liability for Taxes,
long-term commitment or outstanding
Credit
Agreement 40
Indebtedness
of any kind, in the aggregate in excess of $1,000,000 (or its equivalent in
any
other currency).
(iii)
No
event has occurred since December 31, 2005 and no condition exists that,
individually or in the aggregate, has resulted in, or could reasonably be
expected to result in, a Material Adverse Change (other than in respect of
the
Avantel Companies and their Subsidiaries).
(d)
Business of the Credit Parties. No Credit Party has conducted any
business other than the Business.
(e)
Taxes and Reports. All Tax returns, reports and statements of each Credit
Party required by any Applicable Law to be filed with any Governmental Authority
have been duly and properly filed except to the extent the failure to file,
individually or in the aggregate, could not reasonably be expected to result
in
a Material Adverse Change. All such returns, reports and statements are complete
and accurate in all material respects. All Taxes due or anticipated to become
due in respect of each Credit Party, or any of their respective Properties,
incomes or franchises, have been duly paid by, or have been
adequately provided for in accordance with GAAP on the books of, such Credit
Party other than those which, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Change. In addition,
except as may be permitted by Section 6.1(e) or
6.2(a)(ii)(A), no Liens have been filed or registered, and no claims are
being asserted (or, to the Credit Parties’ knowledge, threatened), with respect
to any such Taxes which, individually or in the aggregate, could reasonably
be
expected to result in a Material Adverse Change.
(f)
Ownership of Capital Stock. Except as set forth on
Schedule 5.1(f), no Credit Party owns or otherwise Controls any
Capital Stock of, or has any other (legal or beneficial) interest in, any
Capital Stock of any other Person, other than Capital Stock of public companies
acquired in the ordinary course of business.
(g)
Investments. No Credit Party holds any Investment other than Investments
permitted by Section 6.2(i).
Credit
Agreement 41
(h)
Title to Assets; Liens. Each Credit Party has good and marketable title
to all of the material Property purported to be owned by it, free and clear
of
all Liens, other than Permitted Liens, and holds such title and all of such
Property in its own name and not in the name of any nominee or other Person.
Each Credit Party is lawfully possessed of a valid and subsisting leasehold
estate in and to all Property that it purports to lease, free and clear of
all
Liens, other than Permitted Liens, and holds such leaseholds in its own name
and
not in the name of any nominee or other Person (it being understood
that Avantel Infraestructura subleases one floor of its office at Xxxxx xx
xx
Xxxxxxx Xx. 000). No Credit Party has created or is contractually bound to
create any Lien on or with respect to any of its Properties, except for
Permitted Liens, and no Credit Party is restricted by Applicable Law or its
Organizational Documents from creating Liens on any of its
Properties.
(i)
Governmental Approvals.
(i)
Schedule 5.1(i) contains a complete and accurate list of all
Governmental Approvals necessary for the Acquisition, the conduct of the
business of each Credit Party and the transactions effected by the Financing
Documents (including right-of-way agreements). Each Credit Party has obtained
all other necessary Governmental Approvals from, and has filed all required
registrations, applications, tariffs, reports and other documents with, the
SCT,
the COFETEL and all other Governmental Authorities in accordance with the
Material Concessions and all other Applicable Laws, except for such approvals
or
filings the failure of which to obtain or make, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Change. Each Material Concession and each such other Governmental Approval
is
valid and in full force and effect, is not subject to any conditions for
effectiveness and is not subject to appeal or judicial challenge; and no event
has occurred that, individually or in the aggregate, could reasonably be
expected to: (A) result in the revocation, termination or adverse modification
of the Material Concessions or the revocation, termination or material adverse
modification of any such other Governmental Approval or (B) adversely affect
any
rights of any Credit Party under any Governmental Approval, and, in either
case
(of clause (A) and/or (B)) result in a Material Adverse Change.
(ii)
There is no proceeding pending or, to any Credit Party’s knowledge, threatened
against the Borrower or any Subsidiary that, individually or in the aggregate,
if determined adversely to the Borrower or such Subsidiary, could reasonably
be
expected to result in the rescission, termination or suspension of any
Governmental Approval set out in Schedule 5.1(i) other than any such
proceeding that could not reasonably be expected to result in a Material Adverse
Change.
(j)
Condition of Systems. All of the material Properties and systems of the
Borrower and its Subsidiaries are in good repair, working order and condition,
ordinary wear and tear excepted, and are in material compliance with all
Applicable Laws and all Governmental Approvals (including the Material
Concessions) except as could not, individually or in the aggregate, reasonably
be expected to result in a Material Adverse Change.
(k)
No
Defaults; Adverse Restrictions. No Default or Unmatured Default exists or
will exist immediately after the funding of the Loans. No default exists under
or with respect to any of the Credit Parties’ contractual or other obligations
in any respect that, individually or in the aggregate, has resulted in, or
could
reasonably be expected to result in, a Material
Credit
Agreement 42
Adverse
Change.
(l)
Legal
Proceedings. Except as set forth in
Schedule 5.1(l), there is no: (i) injunction, writ, preliminary
restraining order or any order of any nature issued by an arbitrator, court
or
other Governmental Authority in connection with the Acquisition or the
transactions provided for herein or in any other Transaction Document or (ii)
action, suit, other legal proceeding, arbitral proceeding, inquiry or
investigation of or before any arbitrator, court or other Governmental Authority
pending or, to any Credit Party’s knowledge, threatened, that, individually or
in the aggregate, has resulted in, or could reasonably be expected to result
in,
a Material Adverse Change. Notwithstanding anything herein to the
contrary, the information contained in Schedule 5.1(l) is for
informational purposes only and nothing herein shall be deemed to constitute
an
agreement or waiver by any of the Financing Parties to any consequences of
the
proceedings described therein (including any consequence that may result in
a
Default).
(m)
Compliance with Laws. The Borrower and each Subsidiary is in compliance
in all material respects with the Federal Telecommunications Law, all other
Applicable Laws, all Governmental Approvals (including the Material Concessions)
and its Organizational Documents other than any such failure to comply that,
individually or in the aggregate, could not reasonably be expected to result
in
a Material Adverse Change.
(n)
Environmental Matters. The Borrower and each Subsidiary has duly complied
in all material respects with, and its business, operations, Property,
leaseholds and other facilities are in all material respects in compliance
with,
all applicable Environmental Laws other than any such failure to comply that,
individually or in the aggregate, could not reasonably be expected to result
in
a Material Adverse Change. The Borrower and each Subsidiary: (i) has received
and will maintain all Governmental Approvals relating to, and (ii) has received
no complaint, order, directive, claim, citation or notice by any Governmental
Authority or any other Person alleging non-compliance with, any Environmental
Law other than any such failure to maintain or to comply that, individually
or
in the aggregate, could not reasonably be expected to result in a Material
Adverse Change.
(o)
Intellectual Property. Each Credit Party owns or has the right to use all
patents, trademarks, permits, service marks, trade names, copyrights,
franchises, formulas, licenses, other intellectual property rights and other
rights with respect thereto, and has obtained assignment of all leases and
other
rights of whatsoever nature, necessary for the Network and the operation of
its
business as currently contemplated without any conflict with the rights of
other
Persons other than as, individually or in the aggregate, could not reasonably
be
expected to result in a Material Adverse Change. No product, process, method,
substance, part or other material sold or employed or presently contemplated
to
be sold by or employed by any Credit Party infringes (or will infringe) upon
any
patent, trademark, permit, service xxxx, trade name, copyright, franchise,
formula, license or other intellectual property right of any other Person other
than as, individually or in the aggregate, could not reasonably be expected
to
result in a Material Adverse Change.
Credit
Agreement 43
(p)
Solvency. Each Credit Party is Solvent and, after giving effect to the
consummation of the transactions contemplated in the Financing Documents and
the
Bridge Credit Agreement, on a Consolidated Basis, will be and will continue
to
be Solvent.
(q)
Disclosure. All documents, reports or other information pertaining to any
Credit Party, any Credit Party Affiliate or the Business that have been
furnished in writing to the Lead Arranger and/or Financing Party by (or on
behalf of) the Credit Parties (including: (i) the Information Memorandum, (ii)
any application for the extensions of credit or guarantees provided for in
the
Financing Documents and (iii) the Financing Documents, including the Exhibits
and Schedules attached thereto, but excluding any forecasts and projections),
taken as a whole, are true and correct in all material respects and do not
contain any material misstatement of fact or taken as a whole omit to state
any
fact necessary to make the statements contained therein not materially
misleading. The projections delivered to the Administrative Agent and any other
such written forecasts and projections were as of the time delivered based
upon
assumptions reasonably believed to be reasonable at the time made (it being
understood that such projections are subject to significant uncertainties
and contingencies, many of which are beyond the control of the Credit Parties,
and that no assurance can be given that the projections will be
realized).
(r)
Immunity. Each Credit Party is subject to civil and commercial law with
respect to its Obligations, and the execution, delivery and performance of
the
Financing Documents by each Credit Party constitute private and commercial
acts
rather than public or governmental acts. No Credit Party nor any of their
respective Properties have any immunity from suit, court jurisdiction,
attachment prior to judgment, attachment in aid of execution of a judgment,
set-off, execution of a judgment or from any other legal process with respect
to
the Obligations or any of their other respective agreements under the Financing
Documents.
(s)
Pension Plans; Labor Matters.
(i)
No
Credit Party nor any ERISA Affiliate has ever maintained or contributed to
(or
had an obligation to contribute to) any ERISA Plan. Each Non-U.S. Pension Plan,
if any, has been maintained in substantial compliance with its terms and with
the requirements of Applicable Law, and has been maintained, where required,
in
good standing with applicable Governmental Authorities. No Credit Party has
incurred any obligation in connection with the termination of or withdrawal
from
any Non-U.S. Pension Plan. The present value of the accrued benefit liabilities
(whether or not vested) under each Non-U.S. Pension Plan, if any, determined
as
of the end of the Credit Parties’ most recently-ended Fiscal Year on the basis
of actuarial assumptions, each of which is reasonable, did not exceed the
current value of the assets of such Non-U.S. Pension Plan allocable to such
benefit liabilities.
(ii)
All
obligations of the Borrower and its Subsidiaries for payments with respect
to
any mandatory and additional employee benefit plans (including to the
Instituto Mexicano del Seguro Social (Mexican Social Security
Institute) and Instituto del Fondo Nacional para la Vivienda de los
Trabajadores (National Worker’s Housing Fund Institute)) and accrued
payroll tax payments for their respective employees have been timely paid and
properly reported in the Financial Statements required to be
delivered
Credit
Agreement 44
hereunder
except where the failure to make such payments, individually or in the
aggregate, has not resulted in, and could not reasonably be expected to result
in, a Material Adverse Change or create any Lien (other than Permitted
Liens).
(iii)
The
Borrower and its Subsidiaries have complied in all material respects with all
Applicable Laws with respect to employment practices, including applicable
health and safety regulations, and there is no charge or complaint alleging
any
material violation of any such Applicable Law against the Borrower or any
Subsidiary pending or, to the Credit Parties’ knowledge, threatened (including
by or before any federal or local labor board, any tribunal or the Comisión
Nacional del Sistema de Ahorro para el Retiro (National Savings and
Retirement System Commission)) other than non-compliance or violation that,
individually or in the aggregate, could not reasonably be expected to result
in
a Material Adverse Change.
(iv)
There is no labor strike, request for representation, slowdown or stoppage
actually pending or, to the Credit Parties’ knowledge, threatened against or
affecting any of the Borrower and its Subsidiaries that, individually or in
the
aggregate, has resulted in, or could reasonably be expected to result in, a
Material Adverse Change.
(v)
The
Borrower and each Subsidiary has filed all forms, reports, statements, provider
agreements, benefit plan descriptions, payor agreements, beneficiary materials
and other documents (including those related to employee benefit plans) required
to be filed by it with any Governmental Authority, including state and federal
insurance and health regulatory authorities, except where the failure to file,
individually or in the aggregate, has not resulted in, and could not reasonably
be expected to result in, a Material Adverse Change.
(t)
Use of Proceeds; Margin Stock. The proceeds of the Loans shall be
utilized directly or indirectly for the refinancing of all outstanding amounts
owed under the Existing Credit Agreement, by means of funding the purchase
of
assets from Avantel Infraestructura, which shall use such proceeds to refinance
outstanding amounts owed under the Existing Credit
Agreement. No proceeds of any Loan shall be used to
acquire any equity security of a class that is registered pursuant to
Section 12 of the Securities Exchange Act of 1934. No Credit Party is
engaged in the business of extending credit for the purpose of purchasing or
carrying margin stock (within the meaning of Regulation U issued by the
Board of Governors of the U.S. Federal Reserve System), and no proceeds of
any
Loan shall be used to purchase or carry any margin stock or to extend credit
to
others for the purpose of purchasing or carrying margin stock.
(u)
Investment Company Act. No Credit Party is an “investment company,” or an
“affiliated person” of, or “promoter” or “principal underwriter” for, an
“investment company,” as such terms are defined in the Investment Company Act of
1940. Neither the making of any Loan, nor the application of the proceeds or
repayment thereof by any Credit Party, nor the consummation of the other
transactions contemplated hereby will violate any provisions of such Act or
any
rule, regulation or order of the U.S. Securities and Exchange Commission
thereunder.
(v)
Pari Passu. The Obligations of each Credit Party are and will be direct,
unconditional, unsecured and unsubordinated obligations, and do rank and will
rank at least pari passu with all other present and future senior
unsecured and unsubordinated Indebtedness (including under the Bridge Credit
Agreement), of such Credit Party.
Credit
Agreement 45
ARTICLE
VI
COVENANTS
SECTION
6.1 Affirmative Covenants. Each Credit Party
hereby agrees that it shall (and shall cause each of its Subsidiaries to)
perform and comply with each of the following:
(a)
Corporate Existence. Except as may be permitted by
Section 6.2(f)(ii), each Credit Party shall (and shall cause each of
its Subsidiaries that are Restricted Subsidiaries to) preserve and maintain
its
corporate existence and obtain and maintain all Governmental Approvals necessary
for the maintenance of its corporate existence and good standing, if applicable;
provided that no Credit Party (other than the Borrower with respect to
existence) or any of its Subsidiaries shall be required to preserve any such
existence or Governmental Approvals if such Credit Party shall determine that
the preservation thereof is no longer desirable in the conduct of the business
of such Person, and that the loss thereof, individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse
Change.
(b)
Governmental Approvals. The Credit Parties shall (and shall cause their
Subsidiaries) at all times maintain in full force and effect the Material
Concessions and each Credit Party shall obtain and maintain (and cause each
of
its Subsidiaries to obtain and maintain) all other Governmental Approvals
necessary for: (i) the conduct of its business (except for such Governmental
Approvals the failure to obtain and maintain, individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse Change) and
(ii) the authorization, execution and delivery by each Credit Party of the
Financing Documents to which it is a party, and the due performance of all
of
its obligations thereunder and the validity and enforceability thereof. Each
Credit Party shall acquire, maintain and renew all rights, contracts, powers,
exemptions, privileges, leases, lands and franchises and obtain and maintain
all
registrations, filings and declarations necessary for the performance of its
obligations under the Financing Documents and material to the conduct of its
business.
(c)
Compliance with Laws. Each Credit Party shall (and shall cause its
Subsidiaries to) conduct its business in compliance with all Applicable Laws,
including all relevant Governmental Approvals and Environmental Laws, except
where any failure to comply, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Change, and except that
any Credit Party or Subsidiary may, at its expense, contest by appropriate
proceedings conducted in good faith the validity or application of any such
Applicable Law so long as: (i) none of the Financing Parties or any Credit
Party
would be subject to any criminal liability for failure to comply therewith,
(ii)
all proceedings to enforce such Applicable Law against the Credit Parties and,
if applicable, the Financing Parties shall have been duly stayed and (iii)
the
loss of such contest is not reasonably likely to result in the sale, forfeiture
or loss of any of the Credit Parties’ Property (including the Material
Concessions).
Credit
Agreement 46
(d)
Maintenance of Properties, Etc. Each Credit Party shall maintain and
preserve all of its material Properties that are necessary to the conduct of
its
business in good working order and condition, ordinary wear and tear excepted,
and, from time to time, make or cause to be made all appropriate and proper
repairs, renewals and replacements thereto in accordance with its prior
practices, and keep all systems and equipment in compliance with any and all
standards or rules (including compliance with technical standards and
construction requirements and deadlines) imposed pursuant to any Applicable
Law
or the terms of any Material Document (including the Material Concessions),
except where the failure to do so, individually or in the aggregate, would
not
result in a Material Adverse Change.
(e)
Payment of Taxes, Etc. Each Credit Party shall (and shall cause its
Subsidiaries to) duly pay and discharge before they become overdue: (i) all
material Taxes levied or imposed upon its Property, earnings or business, (ii)
all material utility and governmental charges incurred in the ownership,
operation, maintenance, use, occupancy and upkeep of its business and (iii)
all
material lawful claims and obligations that, if unpaid, might result in the
imposition of a Lien upon its Property except, in each case, where the failure
to pay or discharge, individually or in the aggregate, could not reasonably
be
expected to result in a Material Adverse Change and provided that any
Credit Party may contest in good faith any such Taxes, charges, claims or
obligations and, in such event, may permit the Taxes, charges, claims or
obligations to remain unpaid during any period, including appeals, when any
Credit Party is in good faith contesting the same and so long as: (A) adequate
reserves shall have been established with respect to any such Taxes, charges,
claims or obligations, accrued interest thereon and potential penalties or
other
costs relating thereto in accordance with applicable GAAP, or other adequate
provision for payment thereof shall have been made, (B) such contest does not
involve any risk of the sale, forfeiture or loss of any of the Credit Parties’
Property (including the Material Concessions) and (C) enforcement of the
contested item shall be effectively stayed.
(f)
Maintenance of Insurance. Each Credit Party shall procure and
maintain in full force and effect at all times insurance policies with
financially sound, responsible and reputable insurance companies in such amounts
and covering such risks as is prudent in the good faith judgment of the officers
of the Borrower, except where failure to obtain and maintain such insurance,
individually or in the aggregate, could not reasonably be expected to result
in
a Material Adverse Change.
(g)
Financial Statements and Other Information. The Credit Parties shall at
their sole cost furnish to the Administrative Agent (for further delivery to
each Lender) each of the documents provided for below at the times specified
below (all Financial Statements to be prepared on a Consolidated Basis except
to
the extent specifically provided otherwise below):
(i)
Quarterly Statements. As soon as available and in any event within 45
days after the end of each fiscal quarter (other than the last fiscal quarter
of
each Fiscal Year), the unaudited Financial Statements for the Borrower and
its
Subsidiaries prepared in accordance with GAAP.
(ii)
Annual Statements. Within 120 days after the end of each Fiscal Year,
the audited consolidated annual Financial Statements for the Borrower and its
Subsidiaries prepared in accordance with GAAP together with an unqualified
opinion of the Auditors reporting thereon to the effect that such Financial
Statements fairly present the
Credit
Agreement 47
financial
condition of the Borrower and its Subsidiaries in accordance with
GAAP.
(iii)
Officer’s Certificate. Each time the Financial Statements are required
to be delivered under clause (i) or (ii), a certificate of an
Authorized Officer of the Borrower: (A) certifying that: (1) such officer has
made or caused to be made a review of the transactions and financial condition
of the Credit Parties during the relevant period, (2) the Financial Statements
fairly present the financial condition of the Credit Parties as at the end
of,
and for, the relevant period in accordance with GAAP, subject to normal year-end
audit adjustments, and (3) his/her review has not disclosed the existence of
a
Default or Unmatured Default at any time during the applicable fiscal period
or,
if any Default or Unmatured Default then exists or existed at any time during
the applicable fiscal period, specifying the nature and period of existence
thereof and what action the Credit Parties have taken and/or propose to take
with respect thereto, and (B) setting out in reasonable detail the computations
necessary to determine whether the Borrower is in compliance with
Sections 6.2(a), (b), (d), (e), (g),
(h), (i) and (o) as at the
end of the relevant fiscal
period.
(iv)
Communications with Governmental Authorities. Promptly (and in any
event within ten Business Days) after receipt thereof, a copy of: (A) any notice
from the SCT, the COFETEL or any other Governmental Authority of the imposition
of any material fine, penalty or forfeiture (either individually or when taken
together with other fines, penalties or forfeitures incurred), including any
fine pursuant to Article 38 of the Federal Telecommunications Law, (B) any
notice from the SCT or the COFETEL pursuant to Article 63 of the Federal
Telecommunications Law and (C) any notice or request from the SCT, the COFETEL
or any other Governmental Authority threatening any of the foregoing; and
promptly (but in any event within 10 Business Days) after the delivery thereof,
a copy of each material notice, report or other communication sent by a Credit
Party to the SCT, the COFETEL or any other Governmental Authority.
(v)
Other information. Copies of all other annual or interim audit reports
submitted to a Credit Party by the Auditors, copies of all financial reports
and
material notices sent by the Borrower or any other Credit Party to the lenders
under the Bridge Credit Agreement (or any refinancing thereof) or to holders
of
notes issued by a Credit Party, copies of any Financial Statements and reports
that the Borrower or any other Credit Party files with the Comisión Nacional
Bancaria y de Valores or the SEC, when any Unrestricted Subsidiary exists,
internally prepared reconciliations or adjustments to the financials for the
Borrower and its Subsidiaries to show whether there is compliance with respect
to the covenants of this Agreement relating to the Borrower and its Restricted
Subsidiaries (excluding the Unrestricted Subsidiaries), and such other
information and data with respect to the business, Properties, operations or
condition of any Credit Party as either Agent may reasonably
request.
(h)
Access to Records: Inspection. Each Credit Party shall, at all reasonable
times (and upon at least 10 Business Days’ prior notice, unless a Default or
Unmatured Default exists), give, or cause to be given, to any and all
representatives of any Financing Party access during normal business hours
to,
and permit them to examine, copy and make extracts from, any and all records
and
documents in the possession or subject to the control of the Credit Parties
relating to their respective Properties, operations and financial affairs,
and
to
Credit
Agreement 48
inspect
any of their respective facilities or Properties, and to discuss the affairs,
finances and accounts of the Credit Parties with any of their respective
officers or directors and with the Auditors; provided that the Credit
Parties shall not be obligated to: (i) permit the Administrative Agent (or
such
other Financing Party or Financing Parties as the Administrative Agent may
specify) to perform any such examination more than once in any calendar year
unless a Default or Unmatured Default exists, or (ii) make available any such
records and documents (other than enforceable agreements to which any Credit
Party is a party) to the extent that they: (A) are subject to confidentiality
agreements with parties that are not Affiliate(s) of the Credit Parties and
(B)
are of a type of communication that is generally considered confidential by
similar Persons in the ordinary course of business. The expenses of any such
examination shall be borne by the examining Financing Parties unless a Default
or Unmatured Default exists, in which event such expenses shall be borne by
the
Borrower.
(i)
Notice of Default and Other Matters. The Credit Parties shall promptly
(but in any event within or five Business Days upon obtaining knowledge thereof)
provide to the Administrative Agent (for further delivery to each Lender and
the
Peso Agent) written notice of:
(i)
any
Default or Unmatured Default, describing such Default or Unmatured Default
and
any action being taken and/or proposed to be taken with respect to such Default
or Unmatured Default,
(ii)
any
litigation, arbitration, claim, investigation, proceeding or controversy pending
or, to any Credit Parties’ knowledge, threatened in writing involving or
affecting the Credit Parties: (A) involving an amount in excess of $10,000,000
(or its equivalent in any other currency) individually or in the aggregate,
(B)
seeking any injunctive, declaratory or other equitable relief that, if granted,
could reasonably be expected to result in a Material Adverse Change, (C) that
could give rise to a Lien on any of their respective Properties, other than
Permitted Liens or (D) that, individually or in the aggregate, has resulted
in,
or (if adversely determined) could reasonably be expected to result in, a
Material Adverse Change,
(iii)
with respect to the Material Concessions or any other material Governmental
Approval: (A) any material citation or order relating thereto, (B) any material
suspension, revocation, rescission, materially adverse modification or
termination thereof, (C) any alleged material breach or violation thereof by
the
Credit Parties or any other Person, (D) any material proceeding (including
any
material development in connection with the events described in
Schedule 5.1(l)) relating thereto and (E) any refusal of any Person
to grant, renew or extend the same,
(iv)
any
casualty, damage or loss to the Property of the Credit Parties, whether or
not
insured, through fire, theft, other hazard or casualty in excess of $10,000,000
(or its equivalent in any other currency) for any one casualty or loss or
$10,000,000 (or its equivalent in any other currency) in the aggregate in any
Fiscal Year,
Credit
Agreement 49
(v)
the
occurrence of any: (i) fire, explosion, flood, earthquake or “Act of God,” (ii)
war, civil war, blockade or act of the public enemy or (iii) riot, strike,
lockout or other labor dispute or industrial action, in each case that,
individually or in the aggregate, has resulted in, or could reasonably be
expected to result in, a Material Adverse Change,
(vi)
any
proposed material change in the nature or scope of the business or operations
of
the Credit Parties taken as a whole other than any that constitutes part of
the
Business, and
(vii)
any
other event or development that, individually or in the aggregate, has resulted
in, or could reasonably be expected to result in, a Material Adverse
Change.
(j)
Release Documentation
(i)
Within ten Business Days after the Closing Date, the Credit Parties shall
provide evidence to the Administrative Agent of the execution by the
administrative agent and/or the collateral agent under the Existing Credit
Agreement of the Release Documentation whether notarized or otherwise required
in order to effect the release of the Existing Liens (including the cancellation
of any endorsements of any insurance policies in favor of the administrative
agent and/or collateral agent under the Existing Credit Agreement).
(ii)
Each
Credit Party shall make (or cause the collateral agent under the Existing Credit
Agreement to make) all filings regarding the Release Documentation with the
applicable registration office (including without limitation, to the extent
applicable, the RPPC, the Telecommunications Registry (Registro de
Telecomunicaciones) maintained by COFETEL and the Mexican Institute of
Industrial Property (Instituto Mexicano de Propiedad Industrial) as may
be required to release the Existing Liens no later than January 15,
2007 (or such later date as the Administrative Agent may approve), and provide
evidence of registration of such release through the delivery of a no-lien
certificate or similar certificate, issued by the relevant registration office
within 120 days from the filing of such Release Documentation with such
registration office.
(k)
Material Documents; Etc. Each Credit Party shall
(and shall cause its Subsidiaries to): (A) perform and observe in all material
respects all of its covenants and obligations contained in each of the Material
Documents to which it is a party and (B) except to the extent considered
imprudent in the reasonable judgment of the applicable Credit Party or
Subsidiary, enforce against the relevant Person each material covenant or
obligation under any Material Document to which it is a party in accordance
with
its terms.
(l)
Use of Proceeds. All proceeds of the Loans shall be used as provided in
Section 5.1(t).
(m)
Insurance Proceeds. If any Credit Party receives any amount in respect of
any proceeds of insurance in excess of $100,000 as a result of any loss or
damage to any of the Credit Parties’ Property, then unless such Credit Party
applies such proceeds to the payment of the costs of repairing, restoring or
rebuilding the portion of such Property that was the subject of such loss or
damage or otherwise invests such proceeds in the Business within six months
after the receipt of such proceeds, then such Credit Party shall apply such
proceeds to the payment of its Indebtedness (including Indebtedness hereunder
and under the Bridge Credit Agreement).
Credit
Agreement 50
(n)
Expropriation Event. If an Expropriation Event shall occur with respect
to the Borrower’s or any Restricted Subsidiary’s Property, then the Borrower or
such Restricted Subsidiary, as the case may be, shall: (i) promptly (but in
any
event within five Business Days) upon discovery or receipt of notice of any
occurrence thereof provide written notice to the Agents, (ii) diligently pursue
all of its rights to compensation against the relevant Governmental Authority
in
respect of such Expropriation Event, and (iii) not, without the written consent
of the Required Lenders, compromise or settle any claim with or against such
Governmental Authority. Nothing in this paragraph shall be deemed to
impair any rights any Financing Party may have with respect to any such
Expropriation Event.
(o)
Pension Plans. Each Non-U.S. Pension Plan (if any) shall be maintained in
substantial compliance with its terms and with the requirements of all
Applicable Laws. All contributions required to be made with respect to a
Non-U.S. Pension Plan shall be timely made. No Credit Party shall incur any
obligation in connection with the termination of or withdrawal from any Non-U.S.
Pension Plan. The present value of the accrued benefit liabilities (whether
or
not vested) under each Non-U.S. Pension Plan (if any) determined as of the
end
of each Fiscal Year, on the basis of reasonable actuarial assumptions, shall
not
exceed the current value of the assets of such Non-U.S. Pension Plan allocable
to such benefit liabilities. The Borrower and its Subsidiaries shall comply
with
all Applicable Laws relating to social security.
(p)
License Marks. Each Credit Party shall preserve or renew all of its
registered patents, trademarks, permits, service marks, trade names, copyrights,
franchises, formulas, licenses and other intellectual property, and rights
to
use the foregoing, the non-preservation or non-renewal of which, individually
or
in the aggregate, could reasonably be expected to result in a Material Adverse
Change.
(q)
Pari Passu. Each Credit Party shall take all actions to ensure that at
all times the Obligations constitute unconditional general obligations ranking
at least pari passu in all respects with all present and future other
senior unsecured and unsubordinated obligations of such Credit
Party.
(r)
Further Assurances. Each Credit Party shall do and perform, from time to
time, any and all acts (and execute any and all documents) as may be necessary
or as reasonably requested by any Financing Party in order to effect the
purposes of the Financing Documents.
(s)
Ratings. The Borrower shall use commercially reasonable
efforts to maintain a corporate rating from at least two of S&P, Xxxxx’x and
Fitch.
SECTION
6.2 Negative Covenants. Each Credit Party hereby
agrees that it shall (and shall cause each of its Subsidiaries to) perform
and
comply with each of the following:
(a)
Liens. No Credit Party shall, or shall permit any of its Subsidiaries
that are Restricted Subsidiaries to, create, incur, assume or otherwise permit
to exist any Lien on any of its Properties of any character (including accounts
receivable and bank accounts), whether now owned or hereafter acquired, or
on
any proceeds or income therefrom, or sign any security
Credit
Agreement 51
agreement
authorizing any secured party thereunder to file any financing statement, record
any Lien or take any similar action, or assign for security any accounts
receivable or any other right to receive income, except for the following (each
a “Permitted Lien”):
(i)
any
Liens to secure the Obligations,
(ii)
such
of the following as to which no enforcement, collection, execution, levy or
foreclosure proceeding shall have been commenced: (A) Liens for Taxes to the
extent not required to be paid under Section 6.1(e), (B)
materialmen’s, mechanics’, carriers’, workmen’s and repairmen’s Liens and other
similar Liens arising in the ordinary course of business securing obligations
that are not overdue for a period of more than 90 days or are being contested
in
good faith, (C) pledges or deposits to secure obligations under workers’
compensation laws or similar legislation, (D) easements, rights-of-way and
other
encumbrances on title to real property that do not render title to the real
property encumbered thereby unmarketable or materially adversely affect the
use
of such real property for its present purposes, (E) the interests of parties
other than the Borrower and the Restricted Subsidiaries under certain
right-of-way agreements and (F) setoff rights of deposit banks with respect
to
amounts on deposit in accounts of the Borrower and the Restricted Subsidiaries
permitted under the Financing Documents,
(iii)
Liens on Property subject to Capital Leases or other equipment financing
transactions entered into by the Borrower and the Restricted Subsidiaries after
the Closing Date or Liens on Property acquired after the Closing Date by the
Borrower and the Restricted Subsidiaries in favor of the vendor thereof to
secure the Borrower’s or applicable Restricted Subsidiary’s, as the case may be,
obligation to pay the balance of the purchase price thereof; provided
that: (A) no such Lien may extend to any Property other than the Property (and
any improvements thereon or thereto) held subject to such Capital Lease or
other
equipment financing transaction or acquired for such purchase price, as the
case
may be, (B) the aggregate principal amount of Indebtedness in respect of Capital
Leases or the deferred purchase price of Property or services payable more
than
120 days after the furnishing of such Property or services secured by such
Liens
shall not exceed $30,000,000 (or its equivalent in any other currency) at any
time outstanding, (C) after giving effect to such Indebtedness, the Borrower
and
the Restricted Subsidiaries are still in compliance with
clause (g)(iii), and (D) any such Indebtedness shall not otherwise
be prohibited hereby (including by clause (b)),
(iv)
Liens on Customer Premises Equipment arising from the interests of the lessees
of such equipment (including the right to acquire the leased property at the
end
of the lease term and the right of possession and quiet enjoyment),
(v)
the
replacement, extension or renewal of any Lien permitted by any clause of this
Section 6.2(a) upon or in the same Property theretofore subject thereto
or the replacement, extension or renewal (without increase in the amount) of
the
Indebtedness secured thereby,
(vi)
Liens granted by a Credit Party to another Credit Party pursuant to any joint
venture agreements,
Credit
Agreement 52
(vii)
the
Existing Liens (to be released as provided herein) and Liens granted by the
Borrower or any Restricted Subsidiary (other than the Avantel Companies and
the
Subsidiaries of the Avantel Companies) in effect on the Closing Date and listed
on Schedule 6.2(a)(vii),
(viii)
good faith deposits in connection with bids, tenders, contracts (other than
for
the payment of Indebtedness) or leases to which the Borrower or such Restricted
Subsidiary is a party, or deposits to secure public or statutory obligations
of
the Borrower or such Restricted Subsidiary or deposits of cash or United States
government bonds to secure surety or appeal bonds to which the Borrower or
such
Restricted Subsidiary is a party, or deposits as security for contested taxes
or
import duties or for the payment of rent, in each case incurred in the ordinary
course of business,
(ix)
Liens in favor of issuers of surety bonds or letters of credit issued pursuant
to the request of and for the account of the Borrower or such Restricted
Subsidiary in the ordinary course of its business; provided,
however, that such letters of credit do not constitute
Indebtedness,
(x)
minor
survey exceptions, minor encumbrances, easements or reservations of, or rights
of others for, licenses, rights-of-way, sewers, electric lines, telegraph and
telephone lines and other similar purposes, or zoning or other restrictions
as
to the use of real property or Liens incidental to the conduct of the business
of the Borrower or such Restricted Subsidiary or to the ownership of its
Properties that were not Incurred in connection with Indebtedness and that
do
not in the aggregate materially adversely affect the value of such Properties
or
materially impair their use in the operation of the business of the Borrower
or
such Restricted Subsidiary,
(xi)
Liens on Property or shares of Capital Stock of any Person at the time such
other Person becomes a Subsidiary of a Credit Party; provided,
however, that the Liens may not extend to any other Property owned
by
the Borrower or any Restricted Subsidiary (other than Property affixed or
appurtenant thereto),
(xii)
Liens on Property at the time such Credit Party or any of its Subsidiaries
acquires the Property, including any acquisition by means of a merger or
consolidation with or into such Credit Party or a Subsidiary of such Credit
Party; provided, however, that the Liens may not extend to any
other Property owned by any Credit Party or any of its Subsidiaries (other
than
Property affixed or appurtenant thereto),
(xiii)
Liens securing Indebtedness or other obligations of a Subsidiary of such Credit
Party owing to such Credit Party or a wholly-owned Subsidiary of the Borrower
that is also a Guarantor,
(xiv)
Liens securing Permitted Hedging Obligations so long as: (A) such Permitted
Hedging Obligations relate to Indebtedness that is secured by a Lien on the
same
Property securing such Permitted Hedging Obligations or (B) such Lien is with
respect to the posting of cash or cash equivalents as collateral so long as
such
collateral is
Credit
Agreement 53
not
required under the related Hedging Agreement unless such Permitted Hedging
Obligations exceed 10% of the notional amount of the related hedging
transaction,
(xv)
Liens in favor of customs and revenue authorities arising as a matter of law
to
secure payment of customs duties in connection with the importation of
goods,
(xvi)
licenses of patents, trademarks and other intellectual property rights granted
by the Borrower or any Restricted Subsidiary in the ordinary course of business
and not interfering in any material respect with the ordinary conduct of the
business of the Borrower or any Restricted Subsidiary,
(xvii)
pledges or deposits of cash and cash equivalents securing deductibles,
self-insurance, co-payment, co-insurance, retentions or similar obligations
to
providers of property, casualty or liability insurance in the ordinary course
of
business,
(xviii)
Liens on insurance policies and the proceeds thereof securing the financing
of
the premiums with respect thereto,
(xix)
licenses, leases or subleases granted to third Persons or to the Borrower or
its
Subsidiaries by the Borrower and/or its Subsidiaries in the ordinary course
of
business and not interfering in any material respect with the business of any
Credit Party or any of its Subsidiaries,
(xx)
other Liens securing, in the aggregate, less than $20,000,000 (or its equivalent
in another currency) of Indebtedness, and
(xxi)
any
Lien on any Property securing other Indebtedness permitted under clause
(b); provided that the Obligations are also secured by a Lien on
such Property on a senior or pari passu basis with respect to such
other Indebtedness, in a manner satisfactory to the Administrative
Agent.
(b)
Indebtedness. No Credit Party shall, or shall permit any of its
Subsidiaries that are Restricted Subsidiaries to, incur, assume, guarantee,
permit to exist or otherwise become liable for any Indebtedness;
provided that Indebtedness shall be permitted if: (i) the Borrower is
and remains in compliance with the financial covenant set forth in
clause (g)(iii) (calculated, as applicable, on a pro forma
basis for the four fiscal quarters most recently ended for which Financial
Statements have been prepared as though such Indebtedness had been incurred
at
the beginning of such period), and (ii) the Consolidated Total Indebtedness
to
EBITDA Ratio does not and continues not to exceed 4.0x (calculated, as
applicable, on a pro forma basis for the four fiscal quarters most
recently ended for which Financial Statements have been prepared as though
such
Indebtedness had been incurred at the beginning of such period).
(c)
No
Alteration of Agreements or Organizational Documents. No Credit Party shall,
or shall permit any of its Subsidiaries that are Restricted Subsidiaries to,
cancel, terminate, permit the cancellation or termination of, amend, modify
or
change any material terms or conditions of, or grant (or receive) any material
consent, waiver or approval under, or waive any default or any breach of any
material term or condition of, or take or fail to take any other action that
would impair the value of the interest or impair the rights of any Credit Party,
any Restricted Subsidiary,
the Administrative Agent or any other Financing Party under: (i) any of its
Organizational Documents, or (ii) any Financing Document.
Credit
Agreement 54
(d)
Restricted Payments. No Credit Party shall, or shall permit any of its
Subsidiaries that are Restricted Subsidiaries to, make any Restricted Payment
at
any time; provided that:
(i)
the
Borrower and any Restricted Subsidiary may make Restricted Payments to the
Borrower or another Credit Party that is a wholly-owned Subsidiary of the
Borrower or is wholly-owned by the Credit Party who is the recipient of such
payment,
(ii)
the
Borrower and any Restricted Subsidiary may pay dividends on its Capital Stock
in
the form of shares of additional Capital Stock so long as no Change of Control
shall result from the payment of such share dividend,
(iii)
the
Borrower may make Restricted Payments in respect of dividends or other payments
on Capital Stock, repurchase of Capital Stock and payments on Permitted
Subordinated Indebtedness in any Fiscal Year not in excess of its net income
for
the previous fiscal year so long as no Unmatured Default or Default then exists
or would result therefrom,
(iv)
so
long as no Default exists, the repurchase or other acquisition of Capital Stock
of the Borrower or any Restricted Subsidiary from employees, former employees,
directors or former directors of the Borrower or any Restricted Subsidiary
(or
permitted transferees of such employees, former employees, directors or former
directors), pursuant to the terms of the agreements (including employment
agreements) or plans (or amendments thereto) approved by the Board of Directors
of the Borrower under which such individuals purchase or sell, or are granted
the option to purchase or sell, shares of such Capital Stock; provided,
however, that the aggregate amount of such repurchases and other
acquisitions (excluding amounts representing cancellation of Indebtedness)
shall
not exceed $5,000,000 (or its equivalent in any other currency) in any calendar
year,
(v)
repurchases of Capital Stock may occur upon exercise of stock options if such
Capital Stock represents a portion of the exercise price of such
options,
(vi)
cash
payments may be made in lieu of the issuance of fractional shares in connection
with the exercise of warrants, options or other securities convertible into
or
exchangeable for Capital Stock of the Borrower,
(vii)
Restricted Payments may be made from the proceeds, not required to be applied
to
pay other Indebtedness, of the issuance of new Capital Stock to a Person that
is
not the Borrower or a Subsidiary, and
(viii)
other Restricted Payments may be made not to exceed $20,000,000 (or its
equivalent in any other currency) in the aggregate.
(e)
Conduct of Business with Affiliates. No Credit Party shall, or shall
permit any of its Subsidiaries that are Restricted Subsidiaries to, conduct
any
business with, or enter into any business transaction involving, any Affiliate
thereof (other than among the Borrower and/or one or more wholly-owned
Subsidiaries of the Borrower or between a Credit Party and
Credit
Agreement 55
another
Credit Party that is a wholly-owned Subsidiary thereof, including pursuant
to
clause (f)(i)) unless:
(i)
such business or transaction is: (A) in the ordinary course of
such Credit Party’s (and such Affiliate’s) business and (B) upon fair and
commercially reasonable terms no less favorable to such Credit Party than it
could obtain in a comparable arm’s length transaction with a Person who is not
an Affiliate, or
(ii)
such
business or transaction constitutes: (A) an Investment permitted to be made
pursuant to Section 6.2(i) or a Restricted Payment permitted to be made
pursuant to Section 6.2(d), (B) an issuance of securities, or other
payments, awards or grants in cash, securities or otherwise pursuant to, or
the
funding of, employment arrangements, stock options and stock ownership plans
approved by the Board of Directors, (C) loans or advances to employees in the
ordinary course of business in accordance with the past practices of the Credit
Parties, but in any event not to exceed $2,000,000 (or its equivalent in any
other currency) in the aggregate outstanding at any one time, (D) the payment
of
reasonable fees to directors of the Credit Parties who are not employees of
the
Credit Parties, (E) the issuance or sale of any Capital Stock (other than
Disqualified Stock) of the Borrower, or (F) a transaction entered into in the
ordinary course of business, consistent with past practices.
(f)
Sale of Assets; Mergers.
(i)
No
Credit Party shall, or shall permit any of its Subsidiaries that are Restricted
Subsidiaries to, sell, assign, transfer, convey, lease or otherwise dispose
of
any Property, or grant an option or any other right to purchase or otherwise
acquire any Property, whether now owned or hereafter acquired, except that
the
Borrower and each Restricted Subsidiary may sell, assign, transfer, convey,
lease or otherwise dispose of any Property: (x) in the Ordinary Course of
Business; provided that no Material Adverse Change could reasonably be
expected to occur as a result thereof, (y) to another Credit Party so long
as
such transaction is in compliance with clause (e), or (z) the net
proceeds of which sale are applied to repay Indebtedness or are reinvested
in
the Borrower’s and Restricted Subsidiaries’ business within 180 days of receipt
thereof.
(ii)
No
Credit Party shall, or shall permit any of its Subsidiaries that are Restricted
Subsidiaries to: (A) dissolve, liquidate or otherwise cease to do business
(except as permitted in the proviso to Section 6.1(a)) or (B) merge into
or consolidate with any Person or permit any Person to merge into or consolidate
with it; provided that the Borrower or any Restricted Subsidiary may
merge into or consolidate with the Borrower or another Restricted Subsidiary
so
long as such transactions are in compliance with clause (e) and any
Restricted Subsidiary may (so long as all of the Properties thereof are
transferred to the Borrower or another Restricted Subsidiary in accordance
with
clause (e)) be dissolved.
Credit
Agreement 56
(g)
Financial Covenants. In each case calculated in accordance with GAAP, the
Credit Parties shall not permit:
(i)
the
Net Worth to be less than 80% of the Net Worth on the Closing Date after giving
effect to the Acquisition as of the end of any fiscal quarter,
(ii)
the
Consolidated EBITDA to Interest Ratio to be less than 3.0x as of the end of
any
fiscal quarter, commencing with the fiscal quarter ending September 30,
2006, and
(iii)
the
Consolidated Senior Indebtedness to EBITDA Ratio to be more than 3.0x as of
the
end of any fiscal quarter, commencing with the fiscal quarter ending
September 30, 2006.
(h)
Accounts Receivable. No Credit Party shall, or shall permit any of its
Subsidiaries that are Restricted Subsidiaries to, directly or indirectly, sell
or factor any account receivable or other payment right, including in connection
with any securitization or similar transaction, in an aggregate amount
outstanding at any time in excess of $25,000,000. Each of the Borrower and
the
Restricted Subsidiaries shall keep accurate and complete records of the accounts
receivable and other payment rights of the Borrower or such Restricted
Subsidiary and deliver to the Agents such information about such accounts
receivable and other payment rights as the Administrative Agent may reasonably
request from time to time.
(i)
Investments. No Credit Party shall, or shall permit any of its
Subsidiaries that are Restricted Subsidiaries to, make any Investment in any
Person except:
(i)
extensions of trade credit to customers in the ordinary course of
business,
(ii)
Permitted Investments,
(iii)
Investments in other Credit Parties,
(iv)
extensions of trade credit in the ordinary course of business,
(v)
Contingent Obligations permitted by clause (b),
(vi)
loans and advances to employees of the Borrower and the Restricted Subsidiaries
pursuant to the ordinary course of business (including for travel, entertainment
and relocation expenses) in an aggregate amount not to exceed $2,000,000 (or
its
equivalent in any other currency) at any one time outstanding,
(vii)
the
Acquisition,
(viii)
Investments of the Borrower and the Restricted Subsidiaries existing on the
Closing Date and any renewal or extension thereof, provided that the
amount of the original Investment is not increased except by the terms of such
Investment as in effect on the Closing Date or as otherwise permitted under
this
clause (i),
Credit
Agreement 57
(ix)
Investments received in satisfaction or partial satisfaction of accounts
receivable from financially troubled account debtors,
(x)
Investments in the ordinary course of business consisting of endorsements for
collection or deposit,
(xi)
promissory notes and other non-cash consideration received in connection with
asset sales,
(xii)
Investments of a Subsidiary acquired after the Closing Date or of a corporation
merged into the Borrower or merged into or consolidated with a Subsidiary after
the Closing Date to the extent that such Investments: (A) were not made in
contemplation of or in connection with such acquisition, merger or consolidation
and (B) were in existence on the date of such acquisition, merger or
consolidation,
(xiii)
Permitted Acquisitions,
(xiv)
Investments in other Persons; provided that (with respect to this
clause (xiv)): (1) no Default or Unmatured Default shall exist at
the time in which such Investment is made or would have existed if such
Investment had been made as of the last day of the previous fiscal quarter,
and
(2) the aggregate amount of such Investments (calculated using the amount of
the
initial Investment in any such Person) shall not exceed $25,000,000 (or its
equivalent in any other currency) plus the aggregate amount of cash
dividends (excluding return of capital) received by the Credit Parties in
connection with such Investments,
(xv)
Investments in Permitted Joint Ventures/Partnerships, and
(xvi)
other Investments made from the proceeds of the issuance of new Capital Stock
not required to be applied to pay other Indebtedness.
No
Credit
Party shall, or shall permit any of its Subsidiaries that are Restricted
Subsidiaries to, become a partner in any general or limited partnership or,
except with each other, otherwise enter into any partnership or joint venture
arrangements, except for Permitted Joint Ventures/Partnerships.
(j)
Subsidiaries.
(i)
Neither the Borrower nor any Restricted Subsidiary shall establish, create
or
acquire any Subsidiary unless: (A) such new Subsidiary becomes a party to this
Agreement as a Guarantor by executing a Subsidiary Joinder Agreement, or such
new Subsidiary is designated by the Borrower in a writing delivered to the
Administrative Agent and qualifies as an Immaterial Subsidiary or an
Unrestricted Subsidiary under this clause (j), and (B) if applicable,
replacement Notes are provided to each Lender in the manner required by
Section 2.2(b)(iv).
(ii)
Each
Subsidiary that has been designated an Immaterial Subsidiary or an Unrestricted
Subsidiary by the Borrower but at any time no longer qualifies as
an
Credit
Agreement 58
Immaterial
Subsidiary or an Unrestricted Subsidiary or has had its designation as an
Immaterial Subsidiary or Unrestricted Subsidiary withdrawn by the Borrower
pursuant to this clause (j) shall become a party to this Agreement as a
Guarantor by executing a Subsidiary Joinder Agreement with and replacement
Notes
shall be provided to each Lender in the manner required by
Section 2.2(b)(iv). A Subsidiary whose designation as an
Immaterial Subsidiary or an Unrestricted Subsidiary has been withdrawn by the
Borrower may not subsequently be redesignated an Immaterial Subsidiary or
Unrestricted Subsidiary.
(iii)
The
Credit Parties shall not permit at any time (A) the portion of Consolidated
EBITDA of all Immaterial Subsidiaries to exceed 5% of the Consolidated EBITDA
of
the Borrower and its Subsidiaries for the four fiscal quarters most recently
ended at the time of determination or (B) the aggregate assets held by all
Immaterial Subsidiaries to exceed 5% of the consolidated assets of the Borrower
and its Subsidiaries on a Consolidated Basis. To comply with the
foregoing, the Borrower may from time to time, by notice to the Administrative
Agent, withdraw the designation of Immaterial Subsidiary from a formerly
Immaterial Subsidiary such that the requirements of the preceding sentence
are
met at all times and in connection therewith shall cause such Subsidiary to
become party to this Agreement as a Guarantor by executing a Subsidiary Joinder
Agreement and cause replacement Notes to be provided to each Lender in the
manner required by Section 2.2(b)(iv), provided that such
redesignation shall not cause or result in an Unmatured Default or
Default.
(iv)
The
Credit Parties shall not permit at any time the portion of Consolidated EBITDA
of all Unrestricted Subsidiaries to exceed 20% of the Consolidated EBITDA of
the
Borrower and its Subsidiaries on a Consolidated Basis for the four fiscal
quarters most recently ended at the time of determination. To comply
with the foregoing, the Borrower may from time to time, by notice to the
Administrative Agent, withdraw the designation of Unrestricted Subsidiary from
a
formerly Unrestricted Subsidiary such that the requirements of the preceding
sentence are met at all times and in connection therewith shall cause such
Subsidiary to become party to this Agreement as a Guarantor by executing a
Subsidiary Joinder Agreement and cause replacement Notes to be provided to
each
Lender in the manner required by Section 2.2(b)(iv), provided
that such redesignation shall not cause or result in an Unmatured Default or
Default.
(k)
Ordinary Conduct of Business. No Credit Party shall, or shall permit any
of its Subsidiaries that are Restricted Subsidiaries to: (i) engage in any
business other than the Business, (ii) change its Fiscal Year or its method
of
determining its fiscal quarters or (iii) make or permit any material change
in
its accounting policies or reporting practices, except as required by a change
in applicable accounting principles; provided that in the case of any
such change, the Credit Parties shall promptly notify the Administrative Agent
thereof and enter into such amendments of the financial ratios, definitions
and/or related tests contained herein as the Required Lenders may reasonably
request as a result of such change so as to preserve the intent of such
provisions.
(l)
Sales and Transfers of Equity Interests. No Credit Party shall, or shall
permit any of its Subsidiaries that are Restricted Subsidiaries to: (i) issue
or
sell any of its Capital Stock or securities convertible into, or exercisable
for, any of its Capital Stock or (ii) permit the transfer of its Capital Stock
or securities convertible into, or exercisable for, any of its Capital
Credit
Agreement 59
Stock, except:
(A) for such issuances, sales or transfers that would not result in a Change
of
Control and (B) as may be permitted by clause (d).
(m)
Limitation on Restrictions on Distributions from
Subsidiaries. No Credit Party shall, or shall permit any of its
Subsidiaries to, create or otherwise cause or permit to exist or become
effective any consensual encumbrance or restriction on the ability of any
Subsidiary to: (i) pay dividends or make any other distributions on its Capital
Stock to any Credit Party or pay any Indebtedness owed to any Credit Party,
(ii)
make any loans or advances to any Credit Party or (iii) transfer any of its
Property to any Credit Party, except:
(A) with
respect to clauses (i), (ii) and (iii)
(1) any
encumbrance or restriction pursuant to an agreement in effect at or entered
into
on the Closing Date,
(2) any
encumbrance or restriction with respect to a Subsidiary pursuant to an agreement
relating to any Indebtedness incurred by such Subsidiary on or prior to the
date
on which such Subsidiary was acquired by the Borrower (other than Indebtedness
incurred as consideration in, or to provide all or any portion of the funds
or
credit support utilized to consummate, the transaction or series of related
transactions pursuant to which such Subsidiary became a Subsidiary or was
acquired by the Borrower) and outstanding on such date,
(3) any
encumbrance or restriction pursuant to an agreement effecting a Permitted
Refinancing of Indebtedness incurred pursuant to an agreement referred to in
clause (1) or (2) or this clause (3) or contained in any
amendment to an agreement referred to in clause (1) or (2) or this
clause (3); provided, however, that the encumbrances
and restrictions with respect to such Subsidiary contained in any such
refinancing agreement or amendment are no less favorable to the Lenders than
encumbrances and restrictions with respect to such Subsidiary contained in
such
predecessor agreements, and
(4) any
encumbrance or restriction with respect to a Subsidiary imposed pursuant to
an
agreement entered into for the sale or disposition of all or substantially
all
the Capital Stock or Property of such Subsidiary pending the closing of such
sale or disposition, and
(B) with
respect to
clause (iii) only,
(1) any
encumbrance or restriction consisting of customary nonassignment provisions
in
leases governing leasehold interests to the extent such provisions restrict
the
transfer of the lease or the Property leased thereunder, and
(2) any
encumbrance or restriction contained in security agreements or mortgages
securing Indebtedness of a Subsidiary to the extent such encumbrance or
restriction restricts the transfer of the Property subject to such security
agreements or mortgages.
Credit
Agreement 60
(n)
Permitted Hedging. No Credit Party shall, or shall permit any Subsidiary
to, enter into any Hedging Agreement, except with respect to Permitting Hedging
Obligations.
(o)
Permitted Fianzas and Letters of Credit. No Credit Party
shall, or shall permit any Subsidiary to, create, incur, assume or suffer to
exist any Contingent Obligation in respect of fianzas or letters of
credit in excess of $100,000,000 (or its equivalent in any other currency)
at
any one time outstanding.
ARTICLE
VII
DEFAULT/REMEDIES
SECTION
7.1 Default/Remedies. The occurrence of any of the
following events or circumstances shall constitute a “Default”
hereunder:
(a)
(i)
any Credit Party shall have failed to pay when due any principal payable
pursuant to any Note or any other Obligation payable pursuant to this Agreement
or any other Financing Document, in each case when the same becomes or shall
be
declared due and payable (whether at stated maturity, by acceleration or
otherwise), or (ii) any Credit Party shall have failed to pay when due any
interest payable pursuant to any Note or any other Obligation payable pursuant
to this Agreement or any other Financing Document, in each case when the same
becomes or shall be declared due and payable (whether at stated maturity, by
acceleration or otherwise), which failure (in the case of clause (ii)) shall
have continued unremedied for at least three Business Days after the date on
which such payment is required to be made,
(b)
other
than with respect to payments under the Financing Documents: (i) the Borrower
or
any Restricted Subsidiary shall default (as principal, guarantor or other
surety) in the payment of any principal of, interest on, or premium, guaranty
fees or other fees payable with respect to any credit-enhancement for, any
Indebtedness or Contingent Obligation, which Indebtedness or Contingent
Obligation is for a principal amount of at least $10,000,000 in the aggregate
(or its equivalent in any other currency) (“Material Obligations”), and
such default shall have continued for more than any applicable period of grace,
(ii) any other event shall occur or condition shall exist in respect of any
Material Obligation that results in (or permits the applicable creditor to
cause) the acceleration of the Borrower’s or any Restricted Subsidiary’s
obligation to pay all or any portion of such Material Obligations or (iii)
any
Material Obligation shall be required to be redeemed, purchased or defeased
(or
similarly satisfied) before its otherwise scheduled payment date (or an offer
to
redeem, purchase or defease (or similarly satisfy) such Material Obligations
shall be required to be made), in each case before the otherwise scheduled
payment date,
(c)
any
representation or warranty made by or on behalf of any Credit Party or any
Credit Party Affiliate in this Agreement, any other Financing Document or
any
Credit
Agreement 61
notice
or
other certificate, document, Financial Statement or other statement delivered
pursuant hereto or thereto shall have been untrue or incorrect in any respect
when made or deemed made,
(d)
any
Credit Party shall have failed to observe or perform any term or covenant set
forth in Section 6.1(a), (g),
(h),(i), (j),
(l)
or
(p) or in Section 6.2,
(e)
except as specifically provided in clauses (a), (b) and
(d), any Credit Party shall have failed to observe or
perform any other
agreement, covenant or provision contained in this Agreement, any other
Financing Document or any document delivered pursuant hereto or thereto, and
such failure (unless not capable of remedy in the reasonable opinion of the
Required Lenders) shall have continued unremedied for at least 30 days after
the
earlier of: (i) such Credit Party’s receipt of written notice of the occurrence
thereof or (ii) the date on which such Credit Party shall (or should) have
obtained knowledge of such failure),
(f)
any
Governmental Approval required: (i) to enable any Credit Party lawfully to
enter
into and perform its obligations under the Financing Documents to which it
is a
party, (ii) to enable any Credit Party to operate its business, (iii) to enable
any Financing Party to exercise any of the rights expressed to be granted to
it
in the Financing Documents and/or (iv) to ensure the legality, validity,
enforceability and/or admissibility in evidence in México and/or New York of any
of the Financing Documents shall not be obtained or shall cease to be in full
force and effect in any respect,
(g)
(i)
any Transaction Document at any time and for any reason terminates or otherwise
ceases to be in full force and effect (other than any scheduled expiration
thereof), or any Transaction Document is declared to be void, or any Person
shall issue a notice of termination under any Material Document;
provided that the termination of any Material Document or other failure
of any such document to remain in full force and effect (or any such issuance
of
a notice thereof) shall not constitute a Default unless such event, individually
or in the aggregate, has resulted in or could reasonably be expected to result
in a Material Adverse Change; or (ii) any Credit Party or any other Person
repudiates, or contests the validity or enforceability of, any Transaction
Document to which it is a party,
(h)
any
Expropriation Event shall occur,
(i)
with
respect to the Borrower or any Restricted Subsidiary, either: (i) it shall
commence a voluntary case, proceeding or other action: (A) under any Applicable
Law of any jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization, suspension of payments, concurso mercantil
or relief of debtors seeking to have an order for relief entered with respect
to
it or seeking to adjudicate it a bankrupt or insolvent or seeking
reorganization, arrangement, adjustment, winding-up, liquidation, dissolution,
composition or other relief with respect to it or its debts, or (B) seeking
appointment of a receiver, trustee, liquidator, custodian, conservator,
síndico, conciliador or other similar official of it or for any part of its
Property, (ii) an involuntary case, proceeding or other action of a nature
referred to in clause (i) shall be commenced against
Credit
Agreement 62
it
that
shall: (A) result in the entry of an order for relief of any such adjudication
or appointment or (B) not have been discharged within 60 days from the
commencement thereof, (iii) an involuntary case, proceeding or other action
shall be commenced against it that seeks issuance of a warrant of attachment,
execution, distraint or similar process (excluding precautionary attachment)
against any substantial part of its Property that shall result in the entry
of
an order for any such relief and shall not have been vacated, discharged, stayed
or bonded pending appeal within 60 days from the entry thereof, (iv) there
shall
be commenced against it any extra-judicial liquidation proceedings under any
Applicable Law of any jurisdiction, which proceedings could reasonably be
expected to result in its liquidation, (v) it shall admit in writing its
inability to pay its debts as they become due, (vi) it shall make a general
assignment for the benefit of its creditors or (vii) it shall take any corporate
(or similar) action in furtherance of, or indicating its consent to, approval
of
or acquiescence in, any of the foregoing acts,
(j)
any
court, other Governmental Authority or arbitrator shall enter against the
Borrower or any Restricted Subsidiary: (i) a final non-payment judgment, decree
or order that, individually or in the aggregate, has resulted in, or could
reasonably be expected to result in, a Material Adverse Change or (ii) a final
judgment, decree or order for the payment of money in an amount that, when
aggregated with the amount of all other unsatisfied final judgments, decrees
or
orders against the Borrower and the Restricted Subsidiaries (collectively),
exceeds $10,000,000 (or its equivalent in any other currency), and (in case
of
both clause (i) and (ii)) either: (A) such judgment, decree
or order is not stayed or discharged within 45 days after entry thereof or
(B)
there shall be any period of at least 45 consecutive days during which a stay
of
enforcement of such judgment or order shall not be in effect,
(k)
a
Change of Control shall occur,
(l)
the
ownership or possession of Capital Stock of any Credit Party by any Person
shall
contravene the Foreign Investment Law,
(m)
the
government of México, the SCT, the COFETEL or any other Governmental Authority
shall: (i) commence a proceeding to revoke, terminate, withdraw or fail to
renew
a Material Concession or any other material Governmental Approval, (ii) issue
an
administrative resolution to revoke, terminate, materially suspend, materially
and adversely modify, withdraw or fail to renew a Material Concession or any
other material Governmental Approval or (iii) issue any other rule or decree
resulting in the revocation, the termination, any suspension that is not
partial, temporary and non-material, any material and adverse modification
or
the withdrawal of a Material Concession or any other material Governmental
Approval; provided that, without limiting the generality of the
foregoing, the issuance by the SCT of any or several administrative notices,
sanctions or actions pursuant to Article 38 of the Federal
Telecommunications Law relating to any event described in paragraphs I, V,
VI and VII thereof shall not constitute a Default under clauses (i),
(ii) or (iii) unless and until any such notice, action or sanction
results in any of the events described in such clauses,
Credit
Agreement 63
(n)
any
change in or the withdrawal or modification of any Applicable Law occurs,
including the imposition of applicable foreign exchange control regulations,
that, individually or in the aggregate, in the reasonable opinion of the
Required Lenders has resulted in, or could reasonably be expected to result
in,
a Material Adverse Change,
(o)
the
Obligations shall cease to rank at least pari passu with the present
and future senior unsecured and unsubordinated Indebtedness and Contingent
Obligations of any Credit Party, or
(p)
there
shall occur any governmental action: (i) asserting a general moratorium or
(ii)
changing or restricting the currency (or the conversion thereof) in which any
Credit Party may pay its obligations.
SECTION
7.2 Acceleration. (a) If a Default specified in
Section 7.1(i) shall occur, automatically all Commitments
shall
immediately terminate and all Loans (with accrued interest thereon) and all
other Obligations owing under the Financing Documents shall immediately become
due and payable.
(b)
If
any Default (other than a Default referred to in clause (a)) shall
occur, then the Administrative Agent (acting at the direction of the Required
Lenders) may by notice to the Borrower either: (i) declare the Lenders’
Commitments to be terminated, whereupon all Commitments of the Lenders shall
immediately terminate, and/or (ii) declare any or all of the Loans, all accrued
and unpaid interest thereon and all other Obligations owing under the Financing
Documents to be due and payable, whereupon the same shall become immediately
due
and payable; it being understood that any such acceleration shall,
unless consented by the Required Lenders of the unpaid Tranche, apply to both
Tranches on a pro rata basis.
(c)
Except as expressly provided in this Section, presentment, demand, protest
and
all other notices of any kind are hereby expressly waived by each Credit Party
with respect to the events and actions described in this Section.
SECTION
7.3 Rights Not Exclusive. The rights provided to
the Financing Parties by the Financing Documents are cumulative and are not
exclusive of any other rights, powers, privileges or remedies provided by law
or
in equity, or under any other document now existing or hereafter
arising.
ARTICLE
VIII
THE
AGENTS
SECTION
8.1 Appointment and Authorization. Each Lender
hereby irrevocably (subject to Section 8.9) appoints, designates and
authorizes each Agent to take such action on its behalf under the Financing
Documents and to exercise such powers and perform such duties as expressly
are
delegated to it by the Financing Documents, together with such powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
contained in any Financing Document: (a) no Agent shall have any duties or
responsibilities except those expressly set forth therein, (b) no Agent shall
have or be deemed to have any fiduciary relationship with any other Financing
Party, (c) no implied covenants, functions,
Credit
Agreement 64
responsibilities,
duties, obligations or liabilities shall be read into any Financing Document
or
otherwise exist against either Agent and (d) no Agent shall be required to
take
any action that is contrary to any Applicable Law. Without limiting the
generality of the foregoing sentence, the use of the term “agent” in this
Agreement or any other Financing Document with reference to the Agents is not
intended to connote any fiduciary or other implied (or express) obligations
arising under agency doctrine of any Applicable Law. Instead, such term is
used
merely as a matter of market custom and is intended to create or reflect only
an
administrative relationship between independent contracting
parties.
SECTION
8.2 Delegation of Duties. Each Agent may execute
any of its respective duties under any Financing 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. No Agent shall be responsible
for any degree of negligence or misconduct of any agent or attorney-in-fact
that
such Agent selects with reasonable care.
SECTION
8.3 No Liability of Agent-Related Persons. None of
the Agent-Related Persons shall: (a) be liable for any action taken or omitted
to be taken by any of them under or in connection with any Financing Document
or
the transactions contemplated thereby (except for such Person’s own gross
negligence, bad faith, willful misconduct or breach of such Financing Agreement)
or (b) be responsible in any manner to any of the Financing Parties or Credit
Parties for: (i) any recital, statement, representation or warranty made by
any
of the Credit Parties or Credit Party Affiliates, or any officer thereof,
contained in any Financing Document or in any certificate, report, statement
or
other document referred to or provided for in, or received by any Agent-Related
Person under or in connection with, any Financing Document, (ii) the validity,
effectiveness, genuineness, enforceability or sufficiency of any Financing
Document (except as to such Agent-Related Person’s execution thereof) or (iii)
any failure of any of the Credit Parties or any other party to any Financing
Document to perform its obligations hereunder or thereunder. No Agent-Related
Person shall be under any obligation to any Financing Party or Credit Party
to
ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, any Financing Document, or to inspect
the Properties, books or records of any of the Credit Parties or Credit Party
Affiliates.
SECTION
8.4 Reliance by the Agent-Related Persons. Each
Agent-Related Person shall be entitled to rely, and shall be fully protected
in
relying, upon any writing, resolution, notice, consent, certificate, affidavit,
letter, facsimile or telephone message, statement or other document or
conversation believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person(s), and upon advice and statements of legal
counsel (including counsel to any of the Credit Parties), independent
accountants and other experts selected by any Agent-Related Person. Each
Agent-Related Person shall be fully justified in failing or refusing to take
any
action under any Financing Document unless it shall first receive such advice
or
concurrence of the Required Lenders as it deems appropriate and, if it so
requests, it shall first be indemnified to its satisfaction by the Lenders
(or,
with respect to the Peso Agent, the Peso Lenders) against any and all liability
and expense that may be incurred by it by reason of taking or continuing to
take
any such action. Each Agent-Related Person in all cases shall be fully protected
in acting, or in refraining from acting, under any Financing Document in
accordance with a request or consent of the Required Lenders and such request
and any action taken or failure to act under any Financing Document pursuant
thereto shall be binding upon all of the Financing Parties.
Credit
Agreement 65
SECTION
8.5 Notice of Default. (a) No Agent-Related Person
shall be deemed to have knowledge or notice of the occurrence of any Default
or
Unmatured Default (except an Agent with respect to defaults in the payment
of
principal, interest and fees required to be paid to such Agent for the account
of the applicable Lenders and/or the Agents) unless such Agent-Related Person
shall have received written notice from a Financing Party or any of the Credit
Parties referring to this Agreement, describing such Default or Unmatured
Default and stating that such notice is a “notice of default” or similar
statement. Such Agent-Related Person promptly shall notify each Agent and each
Lender of its receipt of any such notice and (in the case of an Agent) of the
occurrence of any default in the payment of principal, interest or fees required
to be paid to such Agent for the account of the applicable Lenders and/or the
Agents. The Agents shall take such action with respect to such Default or
Unmatured Default as may be requested by the Required Lenders in accordance
with
Article VII; provided that unless and until the
Administrative Agent has received any such request and so notified the other
Agent and the Lenders, each Agent may (but shall not be obligated to) take
such
action, or refrain from taking such action, with respect to such Default or
Unmatured Default as it shall deem advisable or in the best interest of the
Financing Parties.
(b)
Notwithstanding clause (a), each Agent-Related Person and each
Lender shall use its best efforts to notify each Agent upon obtaining knowledge
of any Default or Unmatured Default.
SECTION
8.6 Credit Decision. Each Lender acknowledges that
none of the Agent-Related Persons has made any representation or warranty to
it,
and that no act by any Agent-Related Person hereinafter taken, including any
review of the affairs of the Credit Parties and the Credit Party Affiliates,
shall be deemed to constitute any representation or warranty by any
Agent-Related Person to any Lender or other Agent-Related Person. Each Lender
represents to the Agents and the Lead Arranger that it has, independently and
without reliance upon any Agent-Related Person and based upon 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 Credit Parties, and all applicable
bank regulatory laws relating to the transactions contemplated hereby, and
made
its own decision to enter into the Financing Documents to which it is a party
and to extend credit to the Borrower thereunder. Each Lender also represents
that it shall, independently and without reliance upon any Agent-Related Person
and based upon 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 the Financing 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 Credit Parties. Except for notices, reports and other
documents expressly herein or in the other Financing Documents required to
be
furnished to the Lenders by any Agent, no Agent-Related Person shall have any
duty or responsibility to provide any Lender with any credit or other
information concerning the business, prospects, operations, Property, financial
and other condition or creditworthiness of the Credit Parties that may come
into
the possession of any of the Agent-Related Persons.
Credit
Agreement 66
SECTION
8.7 Indemnification of Agent-Related Persons.
Whether or not the transactions contemplated hereby are consummated, each Lender
agrees to indemnify upon demand the Agent-Related Persons (to the extent not
reimbursed by or on behalf of the Credit Parties and without limiting the
obligation of the Credit Parties to do so), on the basis of such Lender’s
ratable share from and against any and all Indemnified Liabilities; provided
that no Lender shall be liable for the payment to any Agent-Related
Person
of any portion of the Indemnified Liabilities to the extent a court of proper
jurisdiction has delivered a final determination that such Indemnified
Liabilities resulted from such Agent-Related Person’s gross negligence or
willful misconduct. Without limitation of the foregoing, each Lender shall
reimburse each Agent-Related Person upon demand for its ratable share of any
costs or out-of-pocket expenses (including Attorney Costs) incurred by such
Agent-Related Person in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect
of
rights or responsibilities under, any Financing Document or any document
contemplated by or referred to therein to the extent that such Agent-Related
Person is not reimbursed for such expenses by or on behalf of the Credit
Parties. A Lender’s ratable share with respect to the Agents or the Lead
Arranger or any Agent-Related Person related to the Agents or the Lead Arranger
shall be such Lender’s Pro Rata Share. The undertaking in this Section shall
survive the payment of all Obligations hereunder, the cancellation of all the
Commitments and, as to any Agent-Related Person, the resignation or replacement
of such Agent-Related Person.
SECTION
8.8 The Agent-Related Persons in Their Individual Capacity. Each
Agent-Related Person may make loans to, issue letters of credit for the account
of, accept deposits from, acquire equity interests in and generally engage
in
any kind of banking, trust, financial advisory, underwriting or other business
with the Credit Parties and their Affiliates as though the Agents did not act
in
such capacity under the Financing Documents, without notice to or consent of
the
Lenders. The Lenders acknowledge that, pursuant to such activities, the
Agent-Related Persons may receive information regarding the Credit Parties
or
their Affiliates (including information that may be subject to confidentiality
obligations in favor of such Person) and acknowledge that no Agent-Related
Person shall be under any obligation to provide such information to any Lender.
With respect to its Loans, each Lender that also acts as an Agent under the
Financing Documents shall have the same rights and powers under the Financing
Documents as any other Lender and may exercise the same as though it were not
such Agent thereunder.
SECTION
8.9 Successor Agent.
(a)
Any
Agent may, and at the request of the Required Lenders shall, resign as such
Agent upon at least 30 days’ prior written notice to the Lenders. If such Agent
resigns under this Agreement, then the Required Lenders shall appoint from
among
the Lenders a successor agent who, unless a Default then exists, shall be
reasonably acceptable to the Borrower. If no such successor agent is appointed
before the date on which a retiring Agent’s resignation is to become effective
in accordance with its notice of resignation, then such Agent may appoint,
after
consulting with the Lenders and the Borrower, a successor agent from among
the
Lenders who, unless a Default then exists, shall be reasonably acceptable to
the
Borrower. Upon the acceptance of its appointment as successor agent hereunder:
(i) such successor agent shall succeed to all the rights (including as to the
same fees), powers and
Credit
Agreement 67
duties
of
such retiring Agent, (ii) the term “Administrative Agent” or “Peso Agent”, as
the case may be, shall mean such successor agent and (iii) such retiring Agent’s
appointment, powers and duties as such Agent shall be terminated. After any
such
retiring Agent’s resignation hereunder, this Article and
Sections 10.4 and 10.5 shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was such Agent under the
Financing Documents.
(b)
Any
Person: (i) into which an Agent may be merged or consolidated, (ii) that may
result from any merger, conversion or consolidation to which an Agent shall
be a
party or (iii) that may succeed to all or substantially all of the corporate
trust business of an Agent shall be the successor of such Agent without the
execution or filing of any instrument or any further act on the part of any
of
the parties hereto.
ARTICLE
IX
GUARANTY
SECTION
9.1 Guaranty. (a) For good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
each Guarantor hereby, jointly and severally, as primary obligor and not merely
as surety, unconditionally guarantees the full and punctual payment (whether
at
stated maturity, upon acceleration or otherwise) of the payment Obligations
(howsoever created, arising or evidenced, whether direct or indirect, absolute
or contingent, now or hereafter existing, or due or to become due) under the
Financing Documents. Upon the failure by the Borrower to pay punctually any
of
its Obligations, the Guarantors (jointly and severally) shall immediately pay
the amount not so paid. The obligations of the Guarantors under this Article
shall constitute a guaranty of payment and not merely a guaranty of
collection.
(b)
All
payments by any Guarantor under this Article shall be payable in the manner
required for payments by the Borrower hereunder, including: (i) the obligation
to make all such payments free and clear of, and without deduction for, any
Covered Taxes (including withholding taxes) in the manner provided in
Section 3.1 and (ii) the obligation to pay interest at the Default
Rate.
SECTION
9.2 Guaranty Unconditional. The
obligations of the Guarantors under this Article shall be unconditional and
absolute and, without limiting the generality of the foregoing, shall not be
released, discharged or otherwise affected by any reason,
including:
(a)
any
extension, renewal, settlement, compromise, waiver or release in respect of
any
Obligation(s) and/or any Commitment(s) under the Financing Documents, by
operation of law or otherwise,
(b)
any
modification or amendment of or supplement to this Agreement or any other
Financing Document,
(c)
any
change in the existence, structure or ownership of the Borrower or any other
Credit Party, or any event described in Section 7.1(i) with respect
to any Person,
Credit
Agreement 68
(d)
the
existence of any claim, set-off or other rights that a Guarantor may have at
any
time against the Borrower, any other Credit Party, any Agent, any other
Financing Party or any other Person, whether in connection herewith or any
unrelated transactions,
(e)
any
invalidity, irregularity or unenforceability relating to or against the Borrower
or any other Credit Party for any reason of any Financing Document, or any
provision of Applicable Law purporting to prohibit the payment by the Borrower
or any other Credit Party of any of the Obligations, or
(f)
any
other act or omission to act or delay of any kind by the Borrower and/or any
other Credit Party, any Agent, any other Financing Party or any other Person
or
any other circumstance whatsoever that might, but for the provisions of this
paragraph, constitute a legal or equitable discharge of (or defense against)
the
Obligations and the Guarantors’ obligations under this Article other than prior
payment of the Obligations.
SECTION
9.3 Discharge only upon Payment in Full; Reinstatement in
Certain Circumstances. The Guarantors’ obligations hereunder shall
remain in full force and effect until all of the payment Obligations shall
have
been paid in full and all of the Commitments shall have terminated. If at any
time any payment made under this Agreement or any other Financing Document
is
rescinded or must otherwise be restored or returned upon the insolvency,
bankruptcy or reorganization of a Credit Party or any other Person or otherwise,
then the Guarantors’ obligations hereunder with respect to such payment shall be
reinstated at such time as though such payment had been due but not made at
such
time.
SECTION
9.4 Waiver by the Guarantors. (a) Each Guarantor
hereby irrevocably and unconditionally waives, to the fullest extent permitted
by Applicable Law: (i) notice of acceptance of the guaranty provided in this
Article and notice of any liability to which this guaranty may apply, (ii)
all
notices that may be required by Applicable Law or otherwise to preserve intact
any rights of any Financing Party against the Borrower and/or any other Credit
Party, including any demand, presentment, protest, proof of notice of
non-payment, notice of any failure on the part of the Borrower and/or any other
Credit Party to perform and comply with any covenant, agreement, term, condition
or provision of any agreement and any other notice to any other party that
may
be liable in respect of the Obligations guaranteed hereby (including the
Borrower, any other Credit Party and any other guarantor thereof from time
to
time) except any of the foregoing as may be expressly required hereunder, (iii)
any right to the enforcement, assertion or exercise by any Financing Party
of
any right, power, privilege or remedy conferred upon such Person under the
Financing Documents or otherwise, (iv) any requirement that any Financing Party
exhaust any right, power, privilege or remedy, or mitigate any damages resulting
from a default, under any Financing Document, or proceed to take any action
against a Credit Party or any other Person under or in respect of any Financing
Document or otherwise, or protect, secure, perfect or ensure any Lien on any
collateral, and (v) the benefit of any statute of limitations affecting the
Guarantors’ or any other Credit Party’s liability in respect of any of the
payment Obligations, and each Guarantor agrees that any payment of any
Obligation to the applicable Person and any other act that shall toll any
statute of limitations applicable to the Obligations shall also operate to
toll
such statute of limitations applicable to such Guarantor’s liability under this
Article.
Credit
Agreement 69
(b)
Each
Guarantor hereby further waives any right to which it may be entitled under
Articles 2836, 2846, 2848 and 2849 of the Federal Civil Code (Código
Civil Federal) of México and similar articles contained in the Civil Codes
of the States of México and the Federal District. Each Guarantor further
expressly waives the benefits of order, excusión and división
contained in Articles 2814, 2815, 2817, 2818, 2820, 2821, 2822, 2823, 2839,
2840, 2841 and other similar articles of the Federal Civil Code of México and
similar articles contained in the Civil Codes of the States of México and the
Federal District.
SECTION
9.5 Subrogation. Upon a Guarantor’s
making payment with respect to any obligation under this Article, such Guarantor
shall be subrogated to the rights of the payee against the Borrower (or the
other obligor) with respect to such obligation; provided that such
Guarantor shall not be a Financing Party and shall not enforce any payment
by
way of subrogation, indemnity or otherwise, or exercise any other right, against
the Borrower (or such other obligor) so long as any Obligations (other than
on-going but not yet incurred indemnity obligations) remain unpaid and/or any
Commitments remain outstanding.
SECTION
9.6 Stay of Acceleration. If acceleration
of the time for payment of any Obligations is stayed due to any event described
in Section 7.1(i), then all such amounts otherwise subject to
acceleration under this Agreement shall nonetheless be payable by the Guarantors
hereunder.
ARTICLE
X
MISCELLANEOUS
SECTION
10.1 Amendments and Waivers. No amendment or
waiver of any provision of any Financing Document, and no consent with respect
to any departure by any Credit Party therefrom, shall be effective unless the
same shall be in writing and consented to by the Required Lenders and the other
parties thereto, and then any such waiver or consent shall be effective only
in
the specific instance and for the specific purpose for which given;
provided that no such amendment, waiver or consent shall do any of the
following unless approved by the indicated Lenders in writing (it being
understood that no approval from any Lenders other than those indicated
below shall be required):
(a)
unless approved by each Lender, amend, modify or waive the definition of
“Required Lenders” or any provision of this Section,
(b)
unless approved by the applicable Lender, increase or extend the Commitment
of
such Lender,
(c)
unless approved by each Lender of the applicable Tranche, postpone or reduce
any
scheduled payment of principal of, or any payment of interest on, the Loans
of
such Tranche (other than interest that accrues at the Default Rate pursuant
to
Section 2.6(c)) or any fees or other amounts payable in connection
therewith,
(d)
except as provided in Article VII, unless approved by the Required
Lenders of the amended Tranche and each Lender of the other Tranche, accelerate
any scheduled payment of principal of any Loans or increase the Applicable
Margin or Applicable Base Rate Margin payable with respect to a
Tranche,
Credit
Agreement 70
(e)
unless approved by the applicable Lender, change the currency of payment of
any
Obligations to such Lender, or
(f)
unless approved by each Lender of a Tranche, reduce any Guarantor’s obligations
under Article IX with respect to such Tranche and the applicable
Lenders;
and
provided further that:
(i)
no
amendment, waiver or consent shall, unless in writing and signed by the
applicable Agent in addition to the applicable Lender(s), affect the rights
or
duties of such Agent under any Financing Document, and
(ii)
the
fee letter described in Section 2.7, may be amended, or rights or
privileges thereunder waived, in a writing executed solely by the parties
thereto.
No
Credit
Party shall directly or indirectly pay or cause to be paid any remuneration
in
any manner whatsoever to any Lender as consideration for or as an inducement
to
the entering into by such Lender of any waiver or amendment of any of the
Financing Documents unless such remuneration is concurrently paid ratably to
each Lender (or with respect to amendments with respect to one Tranche only,
to
each Lender of such Tranche) even if any such Lender is not required to or
did
not consent to such waiver or amendment.
SECTION
10.2 Notices.
(a)
All
notices, requests and other communications shall be in writing (including,
unless the context expressly otherwise provides, by facsimile or other
electronic transmission; provided that any document transmitted by any
Credit Party by facsimile or other electronic transmission shall be followed
promptly by delivery of a hard copy original thereof) and couriered, faxed
or
delivered to the address or facsimile number specified for notices on
Schedule 10.2, or, if directed to: (A) any Credit Party or either
Agent, to such other address as shall be designated by such Credit Party or
such
Agent, as the case may be, in a written notice to the other parties hereto,
and
(B) any other Person, at such other address as shall be designated by such
Person in a written notice to the Borrower and the Administrative
Agent.
(b)
All
such notices, requests and communications shall be effective: (i) if transmitted
by facsimile, when transmitted by facsimile machine upon confirmation of
receipt; provided that notices pursuant to Article II or
VIII to an Agent shall not be effective until actually
received by such
Agent (including by electronic communication), or (ii) if delivered by courier
(including by overnight courier), upon receipt.
(c)
Any
agreement of the Financing Parties herein to receive certain notices by
telephone or facsimile or other electronic transmission is solely for the
convenience and at the request of the Credit Parties. The Financing Parties
shall be entitled to rely upon the authority of any Person purporting to be
a
Person authorized by a Credit Party to give such notice and the Financing
Parties shall not have any liability to any Credit Party or any other Person
on
account of any action taken or not taken by the Financing Parties in reliance
upon such
Credit
Agreement 71
notice.
The obligation of the Credit Parties to repay the Obligations shall not be
affected in any way or to any extent by any failure by the Financing Parties
to
receive written confirmation of any telephonic or facsimile notice or the
receipt by the Financing Parties of a confirmation that is at variance with
the
terms understood by the Financing Parties to be contained in the
notice.
(d)
Notwithstanding the foregoing: (i) a Credit Party may, at its option, provide
to
the Agents all information, documents and other materials that it is obligated
to furnish pursuant to the Financing Documents, including all notices, requests,
financial statements, financial and other reports, certificates and other
information materials, but excluding any such communication that: (A) relates
to
a request for a new, or a conversion of an existing, borrowing (including any
election of an interest rate or interest period relating thereto), (B) relates
to the payment of any principal or other amount due under the Financing
Documents before the scheduled date therefor, (C) provides notice of any Default
or Unmatured Default or (D) is required to be delivered to satisfy any condition
precedent to the effectiveness of the Financing Documents and/or any borrowing
thereunder (all such non-excluded communications being referred to herein
collectively as “Communications”), by transmitting the Communications
in an electronic/soft medium to the Administrative Agent’s e-mail address
specified by the Administrative Agent by written notice to such Credit Party
(with respect to Communications to the Administrative Agent) and the Peso
Agent’s e-mail address specified by the Peso Agent by written notice to such
Credit Party (with respect to Communications to the Peso Agent), and (ii) each
Agent may, at its option, make the Communications or other information available
to the Lenders by posting them on Intralinks or a substantially similar
electronic transmission system (the “Platform”).
(e)
ANY
PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT-RELATED PERSONS DO
NOT WARRANT THE ACCURACY OR COMPLETENESS OF ANY NOTICES OR OTHER COMMUNICATIONS
MADE AVAILABLE BY AN AGENT, OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY
DISCLAIM LIABILITY FOR ERRORS OR OMISSIONS IN SUCH NOTICES AND COMMUNICATIONS.
NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD
PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY THE
AGENT-RELATED PERSONS IN CONNECTION WITH THE PLATFORM OR THE NOTICES OR OTHER
COMMUNICATIONS MADE AVAILABLE THEREBY. IN NO EVENT SHALL ANY AGENT-RELATED
PERSON HAVE ANY LIABILITY TO THE CREDIT PARTIES, THE FINANCING PARTIES OR ANY
OTHER PERSON FOR DAMAGES OF ANY KIND, INCLUDING DIRECT OR INDIRECT, SPECIAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT,
CONTRACT OR OTHERWISE), ARISING OUT OF THE CREDIT PARTIES’ OR THE AGENTS’
TRANSMISSION OF NOTICES OR OTHER COMMUNICATIONS THROUGH THE PLATFORM, EXCEPT
TO
THE EXTENT THE LIABILITY OF ANY AGENT-RELATED PERSON IS FOUND IN A FINAL
NON-APPEALABLE JUDGMENT BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED
FROM SUCH AGENT-RELATED PERSON'S GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT.
Credit
Agreement 72
(f)
Each
Agent agrees that the receipt of the Communications by it at its e-mail address
described above shall constitute effective delivery of the Communications to
the
Administrative Agent for purposes of the Financing Documents. Each Lender agrees
that notice to it (as provided in the next sentence) specifying that the
Communications and/or other notices have been made available to it on the
Platform shall constitute effective delivery thereof to such Lender for purposes
of the Financing Documents. Each Lender agrees: (i) to notify the Agents in
writing (including by electronic communication) from time to time of such
Lender’s e-mail address to which the foregoing notice may be sent by electronic
transmission and (ii) that the foregoing notice may be sent to such e-mail
address.
SECTION
10.3 No Waiver; Cumulative Remedies. No failure to
exercise and no delay in exercising, on the part of any Agent, any Lender or
any
other Financing Party, any right, remedy, power or privilege under (or referred
to in) any Financing Document shall operate as a waiver thereof; nor shall
any
single or partial exercise of any right, remedy, power or privilege under any
Financing Document preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege.
SECTION
10.4 Costs and Expense. The Borrower shall:
(a)
whether or not the transactions contemplated hereby are consummated, pay or
reimburse any Agent-Related Person(s), promptly upon demand by such Person,
for
all reasonable and reasonably documented out-of-pocket fees, costs and expenses
(including Attorney Costs) incurred by or charged to any such Person in
connection with the preparation, execution, delivery, negotiation and
syndication of the Financing Documents,
(b)
pay
or reimburse any Agent, promptly upon demand by such Agent, for all reasonable
and reasonably documented out-of-pocket fees, costs and expenses (including
reasonable Attorney Costs) incurred by or charged to any such Agent in
connection with the modification, administration, waiver or amendment (in each
case, whether or not consummated) of the Financing Documents (including in
connection with any potential restructuring, renegotiations or workouts),
and
(c)
pay
or reimburse each Agent-Related Person and each Lender, promptly upon demand
by
any such Person, for all reasonably documented out-of-pocket fees, costs and
expenses (including Attorney Costs) incurred by them in connection with: (i)
the
enforcement or preservation of any rights or remedies under any Financing
Document and (ii) the protection or preservation of any right or claim of any
such Person against the Credit Parties or any of their Affiliates arising out
of
any Financing Document.
SECTION
10.5 Borrower Indemnification.
(a)
The
Borrower shall, whether or not the transactions herein contemplated are
consummated, indemnify each of the Financing Parties, the Lead Arranger and
their respective Affiliates (and each of such Person’s officers, directors,
employees, representatives and agents) (each an “Indemnified Person”)
from and hold each of them harmless against any and all liabilities,
obligations, losses, damages, penalties, claims, actions, judgments and suits
and all documented costs (including reasonable and reasonably documented
Attorney Costs),
Credit
Agreement 73
expenses
and disbursements of any kind or nature whatsoever (the “Indemnified
Liabilities”) incurred by any of them as a result of, or arising out of, or
in any way related to, or by reason of, any investigation, litigation or other
proceeding (whether or not any such Indemnified Person is a party thereto)
related to the entering into and/or performance of any Financing Document or
the
use of the proceeds of any Loans or the consummation of any transactions
contemplated in any Financing Document (including the reasonable and reasonably
documented out-of-pocket Attorney Costs incurred in connection with any such
investigation, litigation or other proceeding or in connection with enforcing
this Section but excluding any such Indemnified Liabilities to the extent
resulting directly and primarily by reason of the gross negligence, bad faith,
willful misconduct or breach of a Financing Document of the Indemnified Person
to be indemnified (or its officers, directors, employees, representatives,
attorneys or agents) as found in a final, non-appealable judgment by a court
of
competent jurisdiction. Each Indemnified Party shall: (i) upon its becoming
aware of any event that might result in the Borrower being required to perform
any of its indemnity obligations hereunder, use reasonable efforts to promptly
notify the Borrower (provided that failure so to notify the Borrower
shall not mitigate the obligations of the Borrower hereunder), (ii) upon the
Borrower’s request, consult with the Borrower regarding any step (including any
step that may mitigate the effect of such event) it proposes to take in respect
of such event and (iii) (unless an Unmatured Default or Default in respect
of
payment then exists) obtain the Borrower’s consent before entering into any
settlement or compromise in relation to any such claims, actions or
suits.
(b)
To
the extent that any undertaking in clause (a) may be unenforceable
because it is violative of any Applicable Law or public policy, the Borrower
shall contribute the maximum portion that it is permitted to pay and satisfy
under Applicable Law to the payment and satisfaction of such
undertaking.
(c)
All
such amounts and costs payable or indemnified under this Section shall be
included in the Obligations and shall be immediately due and payable on
demand.
(d)
The
Borrower’s obligations hereunder and under Sections 3.1 and
10.4 shall survive the execution and delivery of the Financing
Documents,
the making and repayment of the Loans and (with respect to any applicable
Indemnified Person) its resignation and/or removal.
(e)
To
the fullest extent permitted by Applicable Law, each Credit Party agrees that
it
shall not assert, and hereby waives, any claim against any Indemnified Party
on
any theory of liability, for special, indirect, consequential or punitive
damages (as opposed to direct or actual damages) arising out of, in connection
with, or as a result of, this Agreement, any other Financing Document or any
agreement or document contemplated hereby, the transactions contemplated hereby
or thereby, any Loan and/or the use of the proceeds thereof.
SECTION
10.6 Payments Set Aside. If any Credit Party (or
any Person on its behalf) makes a payment to any Financing Party, or any
Financing Party exercises its right of set-off, and such payment or the proceeds
of such set-off or any part thereof subsequently are invalidated, declared
to be
fraudulent or preferential, set aside or required (including pursuant to any
settlement entered into by such Financing Party in its discretion) to be repaid
to such Credit Party (or such Person), a trustee, síndico, receiver or
any other Person in connection with any insolvency proceeding or otherwise,
then: (a) to the extent of such recovery, the obligation or part thereof
originally intended to be satisfied shall be revived and continued in
Credit
Agreement 74
full
force and effect as if such payment had not been made or such set-off had not
occurred, and (b) each Lender severally agrees to pay to each Agent from whom
it
received any such amounts upon demand its Pro Rata Share of any amount so
recovered from or repaid by such Agent.
SECTION
10.7 Successors and Assigns. This Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective authorized successors and assigns, except that no Credit Party may
assign or transfer any of its rights or obligations under this Agreement or
any
other Financing Document without the prior written consent of the Administrative
Agent and the Required Lenders, any attempt to do so being null and void ab
initio.
SECTION
10.8 Assignments, Participations, etc.
(a)
Assignments. Any Lender may, with the prior written consent of the
Administrative Agent and (except during the existence of a Default) the
Borrower, which consent(s) shall not be unreasonably withheld or delayed, at
any
time assign to one or more Persons that (unless a Default exists) are Eligible
Assignees (provided that no written consent of the Borrower or the
Administrative Agent shall be required in connection with any assignment by
a
Lender to an Eligible Assignee that is a Lender or an Affiliate of any Lender
and that the Borrower will be deemed to have consented to an assignment if
it
fails to respond negatively to a written request for consent within ten Business
Days of delivery of such request and provided, further, that
it is acknowledged that it is reasonable for the Borrower to withhold its
consent to an assignment to a competitor of the Borrower or to an Affiliate
of a
competitor of the Borrower) (each an “Assignee”) all, or any portion,
of the Loans, the Commitment and the other rights and obligations of such Lender
hereunder, in a minimum Dollar/Peso Equivalent amount of $5,000,000 or a higher
integral multiple of $1,000,000 (or, if less, all of such Lender’s remaining
rights and obligations hereunder); provided that the Credit Parties and
the Agents may continue to deal solely and directly with such Lender in
connection with the interest so assigned to an Assignee until: (i) written
notice of such assignment, together with payment instructions, addresses and
related information with respect to the Assignee, shall have been given to
the
Borrower and the Administrative Agent by such Lender and/or its Assignee, (ii)
such Lender and its Assignee shall have delivered to the Borrower and the
Administrative Agent a duly executed Assignment Agreement substantially in
the
form of Exhibit C (an “Assignment Agreement”) together with
the Note(s) subject to such assignment and (iii) except to the extent waived
by
the Administrative Agent, such Lender or its Assignee shall have paid to the
Administrative Agent a processing fee relating to such assignment in the amount
of $3,500. Notwithstanding the foregoing, no such assignment shall be allowed
if
it would require securities registration under any Applicable Law or if the
assigner thereof (if it is assigning less than all of its Loans and Commitments)
would, after such assignment, have less than $5,000,000 (or its Dollar/Peso
Equivalent) in Loans and remaining Commitments.
(b)
Assignee as Lender. From and after the date that the Administrative Agent
notifies the assignor Lender that it has received and provided its consent,
and
received (if such consent is applicable) the consent of the Borrower, with
respect to an executed Assignment Agreement (and has received payment of the
above-referenced processing fee): (i) the Assignee thereunder shall be a party
hereto and, to the extent that rights and obligations hereunder have been
assigned to it pursuant to such Assignment Agreement, shall have the
Credit
Agreement 75
rights
and obligations of a Lender under the Financing Documents, and (ii) the assignor
Lender shall, to the extent that rights and obligations under the Financing
Documents have been assigned by it pursuant to such Assignment Agreement, be
considered to have relinquished its rights and be released from its obligations
under the Financing Documents.
(c)
Participations. Any Lender may at any time sell to one or more financial
institution(s) or other Person(s) (each a “Participant”) participating
interests in any Loans, the Commitment of such Lender and the other interests
of
such Lender (the “originating Lender”) under the Financing Documents;
provided that: (i) the originating Lender’s obligations under the
Financing Documents shall remain unchanged, (ii) the originating Lender shall
remain solely responsible for the performance of such obligations, (iii) the
Credit Parties and the Agents shall continue to deal solely and directly with
the originating Lender in connection with the originating Lender’s rights and
obligations under the Financing Documents, (iv) no Lender shall transfer or
grant any participating interest under which the Participant has rights to
approve any amendment to, or any consent or waiver with respect to, any
Financing Document, except to the extent such amendment, consent or waiver
would
require unanimous consent of the applicable Lenders as described in
Section 10.1, and (v) if such Participant does not satisfy the
definition of an Eligible Assignee, the Borrower shall be liable for Taxes
and
Other Taxes to such Participant (or to the originating Lender on behalf of
such
Participant) in an amount no greater than the amount that it otherwise would
have been so liable to the originating Lender (who for purposes hereof, will
have been assumed to be in compliance with Section 3.1(c)). In the case
of any such participation, the Participant shall be entitled to the benefit
(subject to the requirements and limitations of such Sections) of
Sections 3.1 (except as set forth in clause (v) above),
3.3, 3.4 and 10.5 as though it were also a Lender
hereunder, and if amounts outstanding under the Financing Documents are due
and
unpaid, or shall have been declared or shall have become due and payable upon
the occurrence of a Default, each Participant shall be deemed to have the right
of set-off in respect of its participating interest in amounts owing under
the
Financing Documents to the same extent as if the amount of its participating
interest were owing directly to it as a Lender under this Agreement (including
such rights under Section 10.10). So long as no Default
exists, an originating Lender shall provide at least ten Business Days’ prior
notice to the Borrower (or such shorter notice period as the Borrower may
approve) of any proposed participation to a proposed Participant that is not
already a Lender, a Participant or an Affiliate of a Lender or a
Participant. So long as no Default exists, such originating Lender
shall not enter into such proposed participation if the Borrower provides to
such originating Lender, within ten Business Days after the Borrower’s receipt
of the notice of such proposed participation, notice of the Borrower’s objection
to the proposed participation to such proposed Participant on the basis that
such proposed Participant is a competitor or an Affiliate of a competitor of
the
Borrower.
(d)
Pledge to Federal Reserve Bank. Notwithstanding any other provision in
this Agreement, any Lender may (without the consent of the Borrower or the
Administrative Agent or prior notice to either) at any time create a security
interest in, or pledge, all or any portion of its rights under and interest
in
this Agreement and any Note held by it in favor of any Federal Reserve Bank
in
accordance with Regulation A of the Federal Reserve Board or U.S. Treasury
Regulation 31 CFR §203.14, and such Federal Reserve Bank may enforce
such pledge or security interest in any manner permitted under Applicable Law;
it being understood that no such security interest or pledge shall
release any Lender from any of its obligations hereunder or shall substitute
such Federal Reserve Bank as a party hereto.
Credit
Agreement 76
(e)
Register. The Administrative Agent, acting solely for this
purpose as an agent of the Borrower, shall maintain at the Administrative
Agent’s Payment Office a copy of each Assignment Agreement delivered to it and a
register for the recordation of the names and addresses of the Lenders, and
the
Commitments of, and principal amounts of the Loans owing to, each Lender
pursuant to the terms hereof from time to time (the
“Register”). The entries in the Register shall be
conclusive, and the Borrower, the Administrative Agent and the Lenders may
treat
each Person whose name is recorded in the Register pursuant to the terms hereof
as a Lender hereunder for all purposes of this Agreement, notwithstanding notice
to the contrary. The Register shall be available for inspection by
the Borrower and any Lender, at any reasonable time and from time to time upon
reasonable prior notice.
SECTION
10.9 Set-off. In addition to any rights now or
hereafter granted under Applicable Law or otherwise, and not by way of
limitation of any such rights, if the Loans have been accelerated, each
Financing Party is authorized at any time and from time to time, without
presentment, demand, protest or other notice of any kind to any Credit Party
or
to any other Person (any such notice being waived to the fullest extent
permitted by Applicable Law), to set off and appropriate and apply any and
all
deposits (general or special, time or demand, provisional or final) at any
time
held by, and other Indebtedness at any time owing by, such Financing Party
(including by branches and agencies of any Financing Party) to or for the credit
or the account of a Credit Party against and on account of any and all
Obligations owing to such Financing Party, now or hereafter existing,
irrespective of whether or not such Financing Party shall have made demand
under
any Financing Document and although such Obligations may be contingent or
unmatured. Each Financing Party agrees promptly to notify the applicable Credit
Party and the Administrative Agent after any such set-off and application made
by such Financing Party; provided that the failure to give such notice
shall not affect the validity of such set-off and application.
SECTION
10.10 Notification of Addresses, Lending Offices,
Etc. Each Agent and Lender shall notify the Administrative
Agent in writing of any change in: (a) the address to which notices to such
Agent or such Lender should be directed, (b) addresses of any Lending Office,
(c) payment instructions in respect of all payments to be made to it hereunder
and (d) such other administrative information as the Administrative Agent
reasonably requests.
SECTION
10.11 Counterparts. This Agreement may be executed
in any number of separate counterparts, each of which, when so executed, shall
be deemed an original, and all of which taken together shall be deemed to
constitute but one and the same instrument.
SECTION
10.12 Severability. The illegality or
unenforceability in any jurisdiction of any provision of this Agreement or
any
document required hereunder shall not in any way affect or impair the legality
or enforceability of the remaining provisions of this Agreement or such other
document in such jurisdiction or such provision in any other jurisdiction.
With
respect to any such illegal or unenforceable provision in any jurisdiction,
the
parties hereto agree to as promptly as possible amend this Agreement (or such
other document) in such a manner as to ensure that the substance of such
provision shall be replaced (at least with respect to such jurisdiction) with
alternative language having substantially equivalent effect that is legal and
enforceable in such jurisdiction.
Credit
Agreement 77
SECTION
10.13 Third Party Beneficiaries. This Agreement is
made and entered into for the sole protection and legal benefit of the parties
hereto, the other Agent-Related Persons, the Indemnified Persons and their
permitted successors and assigns (all of which, if not parties hereto, are
third-party beneficiaries hereof for purposes of enforcing their respective
rights hereunder), and no other Person shall be a direct or indirect legal
beneficiary of, or have any direct or indirect cause of action or claim in
connection with, this Agreement.
SECTION
10.14 Governing Law and Jurisdiction. (a) THIS
AGREEMENT AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAW OF NEW YORK (NOT INCLUDING SUCH STATE’S CONFLICT OF LAWS PROVISIONS
OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW);
PROVIDED THAT THE FINANCING PARTIES SHALL RETAIN ALL RIGHTS ARISING
UNDER U.S. FEDERAL LAW.
(b)
EACH
PARTY HERETO HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE
U.S. DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND ANY APPELLATE
COURT WITH RESPECT THERETO (COLLECTIVELY, THE “FEDERAL COURTS”) (OR, IN
THE EVENT THE FEDERAL COURTS ARE UNAVAILABLE, THE SUPREME COURT OF THE STATE
OF
NEW YORK, COUNTY OF NEW YORK AND ANY APPELLATE COURT WITH RESPECT THERETO (SUCH
COURTS, TOGETHER WITH THE FEDERAL COURTS, THE “NEW YORK COURTS”)) AND
TO THE COURTS OF ITS OWN CORPORATE DOMICILE IN RESPECT OF ACTIONS BROUGHT
AGAINST IT AS A DEFENDANT OVER ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF
OR
RELATING TO THE FINANCING DOCUMENTS. EACH PARTY HERETO IRREVOCABLY WAIVES,
TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW
OR
HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN ANY SUCH COURT, ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM AND ANY RIGHT
TO
WHICH IT MAY BE ENTITLED ON ACCOUNT OF PLACE OF RESIDENCE OR DOMICILE PURSUANT
TO APPLICABLE LAW, AND FURTHER AGREES THAT A FINAL JUDGMENT IN ANY SUCH SUIT,
ACTION OR PROCEEDING BROUGHT IN SUCH COURT WILL BE CONCLUSIVE AND BINDING UPON
SUCH PARTY. EACH CREDIT PARTY IRREVOCABLY CONSENTS TO THE
APPOINTMENT OF THE PROCESS AGENT AS ITS AGENT TO RECEIVE SERVICE OF PROCESS
(WITH RESPECT TO ALL OF THE FINANCING DOCUMENTS AND ALL OTHER RELATED AGREEMENTS
TO WHICH IT IS A PARTY) IN NEW YORK, NEW YORK. EACH PARTY AGREES THAT A JUDGMENT
IN ANY SUCH ACTION, SUIT OR PROCEEDING MAY BE ENFORCED IN ANY OTHER APPLICABLE
JURISDICTION BY SUIT UPON JUDGMENT, A CERTIFIED COPY OF WHICH SHALL BE
CONCLUSIVE EVIDENCE OF THE JUDGMENT. Each of the parties hereto further agrees
that service of process may be made personally or (with respect to a Credit
Party) by mailing or delivering a copy of the summons and complaint or other
legal process in any such legal suit, action or proceeding to a Credit Party
in
care of the Process Agent and such agent is hereby authorized to accept, receive
and acknowledge the same for and on
Credit
Agreement 78
behalf
of
each Credit Party and to admit service with respect thereto. Service upon the
Process Agent shall be deemed to be personal service on the applicable Credit
Party and shall be legal and binding upon the applicable Credit Party for all
purposes notwithstanding any failure to mail copies of such legal process to
the
applicable Credit Party, or any failure on the part of the applicable Credit
Party to receive the same. Nothing herein shall affect the right to serve
process in any other manner permitted by Applicable Law or any right to bring
legal action or proceedings in any other competent jurisdiction. Each party
further agrees that the aforesaid courts shall have exclusive jurisdiction
with
respect to any claim or counterclaim of any party based upon the assertion
that
the rate of interest charged by or under this Agreement or under the other
Financing Documents is usurious. Each party hereby waives any right to stay
or
dismiss any action or proceeding under or in connection with this Agreement
or
any other Financing Document brought before the foregoing courts on the basis
of
forum non conveniens and any rights that it may be entitled to on
account of place of residence or domicile. The foregoing provisions constitute,
among other things, a special arrangement for service among the parties to
this
Agreement for the purposes of 28 U.S.C. §1608.
(c)
Each
Credit Party irrevocably waives, to the fullest extent permitted by Applicable
Law, any claim that any action or proceeding commenced against it relating
in
any way to this Agreement and/or any of the other Financing Document(s) should
be dismissed or stayed by reason, or pending the resolution, of any action
or
proceeding commenced by such Credit Party relating in any way to this Agreement
and/or the other Financing Documents, whether or not commenced earlier. To
the
fullest extent permitted by Applicable Law, each Credit Party shall take all
measures necessary for any such action or proceeding commenced against it to
proceed to judgment before the entry of judgment in any such action or
proceeding commenced by such Credit Party.
(d)
To
the extent that any party hereto may, in any suit, action or proceeding brought
in México or in any other jurisdiction arising out of or in connection with this
Agreement and/or any of the other Financing Document(s), be entitled to the
benefit of any provisions of Applicable Law requiring any other Person in such
suit, action or proceeding to post security for costs or to post a bond to
take
such action, each party hereto hereby irrevocably waives any such benefit to
the
fullest extent now or hereafter permitted under Applicable Law.
(e)
To
the extent that any Credit Party 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, it hereby waives or will
irrevocably waive such immunity in respect of its obligations under the
Financing Documents to the extent permitted by Applicable Law and, without
limiting the generality of the foregoing, the waivers set forth in this
paragraph shall have 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.
SECTION
10.15 Waiver of Jury Trial. EACH OF THE PARTIES
HERETO KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ITS RESPECTIVE RIGHTS
TO
A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON, ARISING OUT OF
OR
RELATED TO THE FINANCING DOCUMENTS OR THE TRANSACTIONS
Credit
Agreement 79
CONTEMPLATED
THEREBY, IN ANY ACTION, LITIGATION OR OTHER PROCEEDING OF ANY TYPE BROUGHT
BY
ANY SUCH PERSON AGAINST ANY OTHER SUCH PERSON OR ANY AGENT-RELATED PERSON OR
PARTICIPANT, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS OR OTHERWISE.
EACH OF THE PARTIES HERETO AGREES THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL
BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE
PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED
BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING
THAT SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY
OF
THE FINANCING DOCUMENTS OR ANY PROVISION THEREOF. THE AGREEMENT OF EACH PARTY
HERETO TO THIS PROVISION IS A MATERIAL INDUCEMENT FOR EACH OF THE OTHER PARTIES
HERETO TO ENTER INTO THIS AGREEMENT AND THE OTHER FINANCING DOCUMENTS TO WHICH
IT IS A PARTY.
SECTION
10.16 Judgment. (a) Each Credit Party’s
obligations hereunder and under the other Financing Documents to make payments
in Dollars or Pesos (as applicable) shall not be discharged or satisfied by
any
tender or recovery pursuant to any judgment expressed in or converted into
any
currency other than Dollars or Pesos (as applicable). If, for the purpose of
obtaining or enforcing judgment against any Credit Party in any court or in
any
jurisdiction, it becomes necessary to convert into or from any currency other
than Dollars or Pesos (as applicable) (such other currency, the “Judgment
Currency”), the conversion shall be made at the Dollar/Peso Equivalent in
the case of Dollars and Pesos and, in the case of other currencies, the rate
of
exchange as quoted by the Administrative Agent or, if the Administrative Agent
does not quote a rate of exchange on such currency, by a known dealer in such
currency designated by the Required Lenders of the applicable Tranche. Each
such
conversion shall be determined as of the Business Day preceding the Business
Day
on which the judgment is given (such preceding Business Day, the “Judgment
Currency Conversion Date”).
(b)
If
there is a change in the rate of exchange prevailing between the Judgment
Currency Conversion Date and the date of actual payment of the amount due,
then
the Borrower covenants to pay (or cause to be paid) such additional amounts
(if
any) as may be necessary to ensure that the amount paid in the Judgment
Currency, when converted at the rate of exchange prevailing on the date of
payment, will produce the amount of Dollars or Pesos (as applicable) that could
have been purchased with the amount of Judgment Currency stipulated in the
judgment or judicial award at the rate of exchange prevailing on the Judgment
Currency Conversion Date.
(c)
For
purposes of determining the Dollar/Peso Equivalent or rate of exchange under
this Section, such amounts shall include any premium and costs payable in
connection with the purchase of the Dollars or Pesos (as
applicable).
SECTION
10.17 Entire Agreement. The Financing Documents
embody the entire agreement and understanding among the parties hereto, and
supersede all prior or contemporaneous agreements and understandings of such
Persons, verbal or written, relating to the subject matter hereof and
thereof.
Credit
Agreement 80
SECTION
10.18 Use of Names and Marks. No use of the Lead
Arranger’s or Financing Party’s (or any of their respective Affiliates’) name,
trademarks, service marks or symbols may be made by any Credit Party or any
of
their Affiliates in any advertisements or public announcements (including press
releases) without such Lead Arranger’s or Financing Party’s (or such
Affiliate’s) prior written approval. No Credit Party shall disclose or divulge
(and shall prohibit its Affiliates from disclosing or divulging) any written
opinions or advice rendered by the Lead Arranger, any Financing Party, any
of
their respective Affiliates or any of their agents, counsel or representatives
in connection with the transaction contemplated hereby without the prior written
consent of the Lead Arranger, such Financing Party, such Affiliate or such
agent, counsel or representative; provided that a Credit Party may make
such disclosure to its stockholders, its counsel and, as required by Applicable
Law, Governmental Authorities. The Lead Arranger, any Financing Party and their
respective Affiliates may use each Credit Party’s name, trademarks or service
marks for the purpose of tombstone advertising. Neither the Lead Arranger,
any
Financing Party nor any of their respective Affiliates shall otherwise use
a
Credit Party’s or any Credit Party Affiliates’ name, trademarks, service marks
or symbols in any advertisements or public announcements (including press
releases) without the prior written consent of the applicable Credit Party
or
Credit Party Affiliate.
SECTION
10.19 Use of English Language. All certificates,
reports, notices, documents and other communications (excluding estatutos
sociales and powers-of-attorney) given or delivered pursuant to the
Financing Documents shall be in the English language, except as required by
Mexican law. If any Financing Document, certificate, reports, notices, documents
or other communications is not originally executed in English, then the Borrower
shall (at their own expense), concurrently with (or as promptly as possible
after) the delivery thereof, provide the recipients thereof of a certified
English translation thereof, upon which translation all Financing Parties shall
have the right to rely for all purposes of the Financing Documents.
SECTION
10.20 No Partnership, Etc. The Financing Parties
and the Credit Parties intend that the relationship between them shall be solely
that of creditor and debtor. Nothing contained in this Agreement, the Notes
or
any other Financing Document shall be deemed or construed to create a
partnership, tenancy-in-common, joint tenancy, joint venture or co-ownership
by
or between any Financing Party, on the one hand, and any other Financing Party,
Credit Party or any other Person, on the other hand. The Financing Parties
shall
not in any way be responsible or liable for the debts, losses, obligations
or
duties of the Credit Parties or any other Person with respect to the Network
or
otherwise. All obligations to pay real property or other taxes, assessments,
insurance premiums and all other fees and charges arising from the ownership,
operation or occupancy of the Network (and to perform all obligations under
the
agreements and contracts relating thereto) shall be the sole responsibility
of
the Credit Parties.
SECTION
10.21 Confidentiality. Each of the Administrative
Agent, the Peso Agent and the Lenders agrees to maintain the confidentiality
of
the Information (as defined below), except that Information may be disclosed
(a) to its Affiliates and to its and its Affiliates’ respective partners,
directors, officers, employees, agents, advisors and other representatives
(it
being understood that the Persons to whom such disclosure is made will be
informed of the confidential nature of such Information and instructed to keep
such Information confidential), (b) to the extent requested by any
regulatory authority purporting to have jurisdiction over it, (c) to the
extent required by applicable laws or regulations or by any subpoena or similar
Credit
Agreement 81
legal
process, (d) to any other party hereto, (e) in connection with the
exercise of any remedies hereunder or under any other Financing Document, any
action or proceeding relating to this Agreement or any other Financing Document,
the enforcement of rights hereunder or thereunder or any litigation or
proceeding to which the Administrative Agent, the Peso Agent or any Lender
or
any of its Affiliates may be a party, (f) subject to an agreement
containing provisions substantially the same as those of this Section, to
(i) any assignee of or Participant in, or any prospective assignee of or
Participant in, any of its rights or obligations under this Agreement (in the
case of a Participant or prospective Participant, only if such Person is a
Lender or an Affiliate of a Lender or has been approved by the Borrower to
receive non-public Information), (ii) any actual or prospective
counterparty, surety, reinsurer, guarantor or credit liquidity enhancer (or
their advisors) to or in connection with any swap, derivative or other
protective transaction relating to the Borrower and its obligations or (iii)
to
any rating agency when required by it, (g) with the consent of the Borrower
or (h) to the extent such Information (x) becomes publicly available
other than as a result of a breach of this Section or (y) becomes available
to the Administrative Agent, the Peso Agent, any Lender or any of their
respective Affiliates on a nonconfidential basis from a source other than the
Borrower.
“Information”
means all information received from the Borrower or any of its Subsidiaries
relating to the Borrower or any of its Subsidiaries or any of its respective
businesses, other than any such information that is available to the
Administrative Agent, the Peso Agent or any other Lender on a nonconfidential
basis prior to disclosure by the Borrower or any of its Subsidiaries;
provided that, in the case of information received from the Borrower or
any of its Subsidiaries after the date hereof, such information is clearly
identified at the time of delivery as confidential. Any Person
required to maintain the confidentiality of Information as provided in this
Section shall be considered to have complied with its obligation to do so if
such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information.
Credit
Agreement 82
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their proper and duly authorized officers
as
of the day and year first above written.
AXTEL,
S.A.B. DE C.V.,
as
Borrower
By: ________________________________
Name:_____________________________
Title:______________________________
By: ________________________________
Name:_____________________________
Title:______________________________
AVANTEL,
S. DE X.X. DE C.V., as a Guarantor
By: ________________________________
Name:_____________________________
Title:______________________________
By: ________________________________
Name:_____________________________
Title:______________________________
AVANTEL
INFRAESTRUCTURA, S. DE X.X. DE C.V., as a Guarantor
By: ________________________________
Name:_____________________________
Title:______________________________
By: ________________________________
Name:_____________________________
Title:______________________________
ADEQUIP,
S.A.,
as
a Guarantor
By: ________________________________
Name:_____________________________
Title:______________________________
By: ________________________________
Name:_____________________________
Title:______________________________
CITIBANK,
N.A.,
as
the Administrative Agent
By: ________________________________
Name:_____________________________
Title:______________________________
BANCO
NACIONAL DE MEXICO, S.A.
INTEGRANTE
DEL GRUPO FINANCIERO
BANAMEX,
as
the Peso Agent
By: ________________________________
Name:_____________________________
Title:______________________________
BANCO
NACIONAL DE MEXICO, S.A.
INTEGRANTE
DEL GRUPO FINANCIERO
BANAMEX,
as
a Lender
By: ________________________________
Name:_____________________________
Title:______________________________
CITICORP
NORTH AMERICA INC., as a Lender
By: ________________________________
Name:_____________________________
Title:______________________________
SCHEDULE
2.1
to
Credit Agreement
COMMITMENTS
AND
PRO RATA SHARES
|
Dollar
Commitments
|
|
|
Lender
|
Dollar
Commitment
|
|
Citicorp
North America Inc.
|
$110,
225,133.28
|
|
Total
Dollar Commitments
|
$110,
225,133.28
|
|
Peso
Commitments
|
|
|
Lender
|
Peso
Commitment
|
|
Banco
Nacional de México, S.A. Integrante del Grupo Financiero
Banamex
|
P$1,042,362,416.67
|
|
Total
Peso Commitments
|
P$1,042,362,416.67
|
SCHEDULE
5.1(b)
to
Credit Agreement
CONSENTS
AND GOVERNMENTAL APPROVALS REQUIRED FOR FINANCING
|
Authorization,
Consent, Approval
Notice
or Filing
|
Governmental
Authority
or
other Person
|
SCHEDULE
5.1(c)
to
Credit Agreement
INDEBTEDNESS
AND CONTINGENT OBLIGATIONS
SCHEDULE
5.1(f)
to
Credit Agreement
EQUITY
INVESTMENTS
SCHEDULE
5.1(i)
to
Credit Agreement
GOVERNMENTAL
APPROVALS
SCHEDULE
5.1(l)
to
Credit Agreement
LEGAL
PROCEEDINGS
SCHEDULE
6.1(k)
to
Credit Agreement
MATERIAL
CONCESSIONS
SCHEDULE
6.2(a)(vii)
to
Credit Agreement
CONTINUING
EXISTING
LIENS
SCHEDULE
10.2
to
Credit Agreement
LENDING
OFFICES;
ADDRESSES
FOR
NOTICES
CREDIT
PARTIES
Axtel,
S.A.B. de C.V.
Boulevard
Xxxx Xxxxx Km 3.33, Lote 1
Colonia
Unidad San Xxxxx
San
Xxxxx
Xxxxx Xxxxxx, X.X.
MEXICO
66215
Attention:
Chief Financial Officer
Tel.
x00
(00) 0000.0000
Fax.
x00
(00) 0000.0000
With
copy
in all cases to:
Xxxxxx
Xxxxxx & Reindell LLP
Eighty
Xxxx Xxxxxx
Xxx
Xxxx,
X.X. 00000-0000
X.X.X.
Attention:
Xxxxx Xxxxxx, Esq.
Tel.
(000) 000.0000
Fax.
(000) 000.0000
and
D&A
Xxxxxxx y Asociados, S.C.
Torre
ING
Comercial América
Batallón
de San Xxxxxxxx 111-501
Colonia
Xxxxx Oriente
San
Xxxxx
Xxxxx Xxxxxx, X.X.
MEXICO
66269
Attention:
Xxxxxxxxx Xxxxxx-Xxxxxxxx
Tel.
x00
(00) 0000.0000
Fax.
x00
(00) 0000.0000
ADMINISTRATIVE
AGENT
Notice
Office and Administrative Agent’s Payment Office:
Citibank,
N.A.
0
Xxxxx
Xxx
Xxxxx
000
Xxx
Xxxxxx, XX 00000
Attention:
Xxxx Xxxxxxxxx
Telephone:
(000) 000-0000
Facsimile: (000)
000-0000
Payment
Instructions:
The
account of the Administrative Agent maintained by the Administrative Agent
at
000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000, Tel: (000) 000-0000, Fax: (000) 000-0000,
Attn. Xxxx Xxxxxxxxx, E-mail: xxxx.x0.xxxxxxxxx@xxxxxxxxx.xxx and with
payment instructions of Citibank, N.A., ABA No. 000000000, Acct. No. 36852248,
Reference: Medium Term Finance/Agency.
PESO
AGENT
Notice
Office:
Banco
Nacional de México, S.A. integrante del Grupo Financiero Banamex
Xx.
Xxxxxxxx xx Xxx Xxxxxxxx # 000, Xxxx 0
Col.
Xxxxx Xxxxxxx
Xxxxx
Xxxxxx, X.X.
Xxxxxx
00000
Attention: Xxxxx
Xxxxx / Xxxxx Xxxxxxxxx Xxxxxxxx
Telephone: (00)
0000-0000 / 8505
Facsimile: (00)
0000-0000
Peso
Agent’s Payment Office (Pesos):
Banco
Nacional de México, S.A. integrante del Grupo Financiero Banamex
Xxxxxx
la
Católica #165
México
D.F.
Account
No. 56028-8, Branch 870, at the name of the Peso Agent
Attention:
Xxxx Xxxxxx Xxxxx Xxxxx/Ma. de la Xxx Xxxx
Telephone:
(000) 0000 0000 0000
Facsimile:
(000) 0000 0000 0000
LENDERS:
On
record
with the Administrative Agent
EXHIBIT
A
to
Credit Agreement
FORM
OF NOTE
[RM
TO PROVIDE FORM XXXXXX FOR EACH OF DOLLAR LOANS (EXHIBIT A-1), WITH
DIFFERENT VARIATIONS FOR LIBOR LOAN AND BASE RATE LOANS, AND PESO LOANS
(EXHIBIT A-2)]
EXHIBIT
B
to
Credit Agreement
FORM
OF
NOTICE
OF BORROWING
Date: [____________],
200[__]
|
To:
|
Citibank,
N.A., as the Administrative Agent under the Credit Agreement, dated
as of
November 30, 2006 (as amended from time to time, the “Credit
Agreement”), among Axtel, S.A.B. de C.V. (the “Borrower”),
Avantel, S. de X.X. de C.V., certain of their subsidiaries as Guarantors,
various financial institutions from time to time party thereto as
lenders,
such Administrative Agent, and Banco Nacional de Mexico, S.A. Integrante
del Grupo Financiero Banamex, as Peso
Agent.
|
Ladies
and Gentlemen:
The
undersigned refer to the Credit Agreement (terms defined therein being used
herein as therein defined) and hereby gives you notice irrevocably, pursuant
to
Section 2.3 of the current draft of the Credit Agreement, of the borrowings
specified below:
(a)
The
proposed Dollar Loan borrowings shall be as follows: $[________] of
Loans in Dollars. The proposed Peso Loan borrowings shall be as
follows: P$[________] of Loans in Pesos.
(b)
The
Business Day of the proposed borrowing is [____________], 2006.
(c)
For
the Dollar Loans, the Type of such Loans is a [LIBOR][Base Rate] Loan and the
initial Interest Period for such Loans is [one][three] months.
(d)
Proceeds of the Loans shall be delivered by the Lenders in the manner specified
in Section 2.3(b) of the Credit Agreement, and the Administrative Agent shall
delivered such proceeds to the Borrower to the following account(s):
[___________________]
The
undersigned certifies that the following statements are true on the date hereof
(assuming that the Financing Documents were in effect as of the date hereof),
and will be true on the Closing Date, both before and after giving effect
thereto and to the application of the proceeds of the Loans on such
date:
(a)
its
representations and warranties contained in the Financing Documents (including
Article V of the Credit Agreement) are true and correct as though made on
and as of such date (except to the extent such representations and warranties
expressly relate to an earlier date, in which case they are true and correct
as
of such date), and
(b)
no
Default or Unmatured Default exists or will result from such
borrowing.
AXTEL, S.A.B. DE C.V.
By: ________________________________
Name:_____________________________
Title:______________________________
By: ________________________________
Name:_____________________________
Title:______________________________
EXHIBIT
C
to
Credit Agreement
FORM
OF
ASSIGNMENT
AGREEMENT
This
ASSIGNMENT AND ACCEPTANCE AGREEMENT (the
“Agreement”) dated as of ___________, 20__ is made
between ____________
(the “Assignor”) and ____________ (the
“Assignee”).
RECITALS
The
Assignor is a party to the Credit Agreement, dated as of
[___________], 2006 (as amended or otherwise modified from time
to time, the “Credit Agreement”), among Axtel, S.A.B. de C.V. (the
“Borrower”), Avantel, S. de X.X. de C.V., their subsidiaries, various
financial institutions from time to time party thereto (including the Assignor,
the “Lenders”), Citibank, N.A., as the Administrative Agent, and Banco
Nacional de Mexico, S.A. Integrante del Grupo Financiero Banamex, as Peso Agent.
Capitalized terms used but not otherwise defined herein shall have the
respective meanings set forth in the Credit Agreement.
The
Assignor wishes to assign to the Assignee [a portion][all] of the rights and
obligations of the Assignor as a Lender under the Credit Agreement in respect
of
the Loans, its Commitment and the other rights and obligations of the Assignor
in connection therewith, and the Assignee wishes to accept assignment of such
rights and to assume such obligations from the Assignor, in each case on the
terms and subject to the conditions of this Agreement.
NOW,
THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the parties hereto agree as follows:
SECTION
1. Assignment and Acceptance. (a) Subject to the terms and
conditions of this Agreement: (i) the Assignor hereby sells, transfers and
assigns to the Assignee and (ii) the Assignee hereby purchases, assumes and
undertakes from the Assignor, without recourse and without representation or
warranty (except as provided in this Agreement), [P]$______ of the Assignor’s
[Dollar] [Peso] Commitment, together with a corresponding portion of the
Assignor’s outstanding [Dollar] [Peso] Loans, and all related rights, benefits,
obligations, liabilities and indemnities of the Assignor under and in connection
with the Credit Agreement (all of the foregoing being herein called the
“Assigned Rights and Obligations”). [For the purpose of clarification,
if this assignment is for less than all of the Assignor’s Dollar Loans and both
LIBOR Loans and Base Rate Loans are outstanding, then this assignment is an
assignment of the Assignor’s LIBOR Loans and Base Rate Loans on a pro
rata basis.]
(b)
With
effect on and after the Effective Date (as defined in Section 5),
the Assignee shall be a party to the Credit Agreement and succeed to all of
the
rights and be obligated to perform all of the obligations of a Lender under
the
Credit Agreement, including the requirements concerning confidentiality and
the
payment of indemnification. The Assignee agrees that it shall perform in
accordance with their terms all of the obligations that by the
terms
of
the
Credit Agreement are required to be performed by it as a Lender. It is the
intent of the parties hereto that the Assignor shall relinquish its rights
and
be released from its obligations under the Credit Agreement to the extent such
rights and obligations have been assumed by the Assignee; provided that
the Assignor shall not relinquish its rights under Article III or
Section 10.4 or 10.5 of the Credit Agreement in respect of the Assigned
Rights and Obligations to the extent such rights relate to the time before
the
Effective Date.
(c)
After
giving effect to the assignment and assumption set forth herein, on the
Effective Date the Assignee’s [Dollar] [Peso] Commitment will be [P]$__________
and the Assignor’s [Dollar] [Peso] Commitment will be
[P]$__________.
(d)
After
giving effect to the assignment and assumption set forth herein, on the
Effective Date the Assignee’s outstanding Dollar Loans will be $__________, the
Assignee’s outstanding Peso Loans will be P$__________, the Assignor’s
outstanding Dollar Loans will be $__________, and the Assignor’s outstanding
Peso Loans will be P$__________.
SECTION
2. Payments. (a) As consideration for the sale, transfer and
assignment contemplated in Section 1, the Assignee shall pay to the
Assignor on the Effective Date in immediately available funds an amount equal
to
[P]$__________, representing the principal amount of all outstanding and funded
Loans and participations included within the Assigned Rights and Obligations.
Such payment shall be made to the Assignor by wiring such amounts to [account
information].
(b)
The
[Assignor][Assignee] further agrees to pay to the Administrative Agent a
processing fee in the amount specified in Section 10.8(a) of the Credit
Agreement.
SECTION
3. Reallocation of Payments. Any interest, fees and other
payments accrued with respect to the Assigned Rights and Obligations: (a) to
the
Effective Date, shall be for the account of the Assignor, and (b) on and after
the Effective Date, shall be for the account of the Assignee. Each of the
Assignor and the Assignee agrees that it shall hold in trust for the other
party
any interest, fees and other amounts that it may receive to which the other
party is entitled pursuant to the preceding sentence and shall pay to the other
party any such amounts that it may receive promptly upon receipt (including,
for
example, interest paid by the Credit Parties on the Assigned Rights and
Obligations on the first applicable Payment Date after the Effective
Date).
SECTION
4. Independent Credit Decision. The Assignee: (a) acknowledges
that it has received a copy of the Credit Agreement, the Schedules and Exhibits
thereto and the other Financing Documents (other than the engagement letter
described in the definition of “Financing Documents” and the fee letter(s)
described in Section 2.7 of the Credit Agreement), together with copies of
the most recent Financial Statements of the Credit Parties as described in
Section 6.1(h) (or Section 4.1(c)) of the Credit Agreement, and such
other documents and information as it has deemed appropriate to make its own
credit and legal analysis and decision to enter into this Agreement, and (b)
agrees that it shall, independently and without reliance upon the Assignor,
any
Agent or any other Lender and based upon such documents and information as
it
shall deem appropriate at the time, continue to make its own credit and legal
decisions in taking or not taking action under the Financing
Documents.
SECTION
5. Effective Date; Notices. (a) As between the Assignor and the
Assignee, the effective date for this Agreement shall be __________, ____ (the
“Effective Date”); provided that the following conditions
precedent have been satisfied on or before the Effective Date:
(i)
this
Agreement shall be duly executed and delivered by the Assignor and the
Assignee,
(ii)
the
consent of the Borrower and the Administrative Agent, if required for an
effective assignment of the Assigned Rights and Obligations by the Assignor
to
the Assignee under Section 10.8(a) of the Credit Agreement, shall have been
duly obtained and shall be in full force and effect as of the Effective
Date,
(iii)
the
Assignee shall pay to the Assignor all amounts due to the Assignor under this
Agreement, and
(iv)
the
processing fee referred to in Section 2(b) shall have been paid to
the Administrative Agent.
(b)
Promptly after the execution of this Agreement, the Assignor shall deliver
to
the Borrower and the Administrative Agent (if applicable, for acknowledgment
by
the Administrative Agent and the Borrower) a Notice of Assignment substantially
in the form attached hereto as Schedule 1.
[SECTION
6. Agent. [INCLUDE ONLY IF THE ASSIGNOR IS AN AGENT] (a) The
Assignee hereby appoints and authorizes the Assignor to take such action as
[________] Agent (in the Assignor’s role as such) on its behalf and to exercise
such powers under the Financing Documents as are delegated to the Assignor
as
such Agent by the Lenders pursuant to the Credit Agreement.
(b)
The
Assignee shall assume no duties or obligations held by the Assignor in its
capacity as an Agent under the Financing Documents.]
SECTION
7. Representations and Warranties. (a) The Assignor represents
and warrants that: (i) it is the legal and beneficial owner of the interest
being assigned by it hereunder and that such interest is free and clear of
any
Lien or other adverse claim, (ii) it is duly organized and existing and has
the
full power and authority to take, and has taken, all action necessary to execute
and deliver this Agreement and any other documents required or permitted to
be
executed or delivered by it in connection with this Agreement, and to fulfill
its obligations hereunder, (iii) no notices to, or consents, authorizations
or
approvals of, any Person are required (other than any already given or obtained)
for its due execution, delivery and performance of this Agreement, and apart
from any agreements or undertakings required by the Credit Agreement, no further
action by, notice to, or filing with any Person is required of it for such
execution, delivery or performance, and (iv) this Agreement has been duly
executed and delivered by it and constitutes the legal, valid and binding
obligation of the Assignor, enforceable against the Assignor in accordance
with
the terms hereof, subject, as to enforcement, to bankruptcy, insolvency,
moratorium, reorganization and other laws of general application relating to
or
affecting creditors’ rights and to general equitable principles.
(b)
The
Assignor 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 the other Transaction Documents or
the
execution, legality, validity, enforceability, genuineness, sufficiency or
value
of the Credit Agreement, the other Transaction Documents or any other instrument
or document furnished pursuant thereto. The Assignor makes no representation
or
warranty in connection with, and assumes no responsibility with respect to,
the
solvency, financial condition or statements of the Credit Parties or any
Affiliate thereof, or the performance or observance by the Credit Parties or
any
Affiliate thereof of any of its obligations under the Credit Agreement, any
other Transaction Document or any other document furnished in connection
therewith.
(c)
The
Assignee represents and warrants that: (i) it is duly organized and existing
and
has the full power and authority to take, and has taken, all action necessary
to
execute and deliver this Agreement and any other documents required or permitted
to be executed or delivered by it in connection with this Agreement, and to
fulfill its obligations hereunder, (ii) no notices to, or consents,
authorizations or approvals of, any Person are required (other than any already
given or obtained) for its due execution, delivery and performance of this
Agreement, and apart from any agreements or undertakings required by the Credit
Agreement, no further action by, notice to, or filing with any Person is
required of it for such execution, delivery or performance, (iii) this Agreement
has been duly executed and delivered by it and constitutes the legal, valid
and
binding obligation of the Assignee, enforceable against the Assignee in
accordance with the terms hereof, subject, as to enforcement, to bankruptcy,
insolvency, moratorium, reorganization and other laws of general application
relating to or affecting creditors’ rights and to general equitable principles,
and (iv) it is an Eligible Assignee.
SECTION
8. Further Assurances. The Assignor and the Assignee each hereby
agree to execute and deliver such other documents, and take such other action,
as either party or the Administrative Agent reasonably may request in connection
with the transactions contemplated by this Agreement, including the delivery
of
any notices or other documents to the Borrower or the Administrative Agent
that
may be required in connection with the assignment and assumption contemplated
hereby.
SECTION
9. Miscellaneous. (a) Any amendment or waiver of any provision
of this Agreement shall be in writing and signed by the parties hereto (an
executed copy of which shall be delivered to the Administrative Agent). No
failure or delay by either party hereto in exercising any right, power or
privilege hereunder shall operate as a waiver thereof and any waiver of any
breach of the provisions of this Agreement shall be without prejudice to any
rights with respect to any other or further breach thereof.
(b)
All
payments made hereunder shall be made without any set-off or
counterclaim.
(c)
The
Assignor and the Assignee each shall pay its own costs and expenses (including
Attorney Costs) incurred in connection with the negotiation, preparation,
execution and performance of this Agreement and related documents.
(d)
This
Agreement may be executed in any number of counterparts and all of such
counterparts taken together shall be deemed to constitute one and the same
instrument.
(e)
THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF
NEW
YORK (NOT INCLUDING SUCH STATE’S CONFLICT OF LAWS PROVISIONS OTHER THAN SECTION
5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW). The Assignor and the Assignee
each irrevocably submits to the non-exclusive jurisdiction of any state or
Federal court sitting in the Borough of Manhattan, New York City, New York
over
any suit, action or proceeding arising out of or relating to this Agreement,
and
irrevocably agrees that all claims in respect of such action or proceeding
may
be heard and determined in such New York state or Federal court. Each party
to
this Agreement hereby irrevocably waives any objection, including any objection
to the laying of venue or based upon the grounds of forum non
conveniens, that it may now or hereafter have to the bringing of any action
or proceeding in such jurisdiction in respect of this Agreement.
(f)
THE
ASSIGNOR AND THE ASSIGNEE EACH HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT
OR
ANY COURSE OF CONDUCT, COURSE OF DEALING OR STATEMENT (WHETHER ORAL OR
WRITTEN). THE AGREEMENT OF EACH PARTY HERETO TO THIS PROVISION IS A
MATERIAL INDUCEMENT FOR EACH OF THE OTHER PARTIES HERETO TO ENTER INTO THIS
AGREEMENT.
IN
WITNESS WHEREOF, the Assignor and the Assignee have caused this
Agreement to be executed and delivered by their duly authorized officers as
of
the date first above written.
[ASSIGNOR]
By: ________________________________
Name:_____________________________
Title:______________________________
[ASSIGNEE]
By: ________________________________
Name:_____________________________
Title:______________________________
Address:
SCHEDULE
1
to
Agreement
NOTICE
OF ASSIGNMENT AND ACCEPTANCE
_______________,
____
Citibank,
N.A.,
as
the Administrative Agent
[_____________]
Axtel,
S.A.B. de C.V.
[_____________]
Ladies
and Gentlemen:
We
refer
to the Credit Agreement, dated as of [____________], 2006 (as
amended or otherwise modified from time to time, the “Credit
Agreement”), among Axtel, S.A.B. de C.V. (the “Borrower”),
Avantel, S. de X.X. de C.V., their subsidiaries, various financial institutions
from time to time party thereto as lenders, Citibank, N.A., as the
Administrative Agent, and Banco Nacional de Mexico, S.A. Integrante del Grupo
Financiero Banamex, as Peso Agent. Capitalized terms used but not otherwise
defined herein shall have the respective meanings set forth in the Credit
Agreement.
(a)
We
hereby give you notice of[, and request your consent to,] the assignment by
__________________ (the “Assignor”) to _______________ (the
“Assignee”) of [all][a portion] of the right, title and interest
of the
Assignor as a Lender in and to the Credit Agreement (including [all][a portion]
of the right, title and interest of the Assignor in and to the Assignor’s
[Dollar] [Peso] Commitment and all outstanding [Dollar] [Peso] Loans of the
Assignor pursuant to the Assignment and Acceptance Agreement attached hereto
(the “Assignment Agreement”)). Before giving effect to such assignment
(assuming no repayments, new fundings or new issuances after ________, ____),
the outstanding principal amount of the Assignor’s Dollar Loans is $___________,
the outstanding principal amount of the Assignor’s Peso Loans is P$___________.
After giving effect to such assignment (assuming no repayments, new fundings
or
new issuances after ________, ____), the outstanding principal amount of the
Assignor’s Dollar Loans is $___________, and the outstanding principal amount of
the Assignor’s Peso Loans is P$___________.
(b)
The
Assignee agrees that it shall be bound by the terms of the Credit Agreement
as
fully and to the same extent as if it were the Lender originally holding such
interest in the Credit Agreement.
(c)
The
following administrative details apply to the Assignee:
(i) Notice
Address:
Assignee
name:
Address:
Attention:
Telephone: (___)
___-____
Telecopier: (___)
___-____
(ii) Lending
Office:
(iii) Payment
Instructions:
|
|
Account
No.:
|
At:
Reference:
Attention:
(d)
You
are entitled to rely upon the representations, warranties and covenants of
each
of the Assignor and the Assignee contained in the Assignment
Agreement.
IN
WITNESS WHEREOF, the Assignor and the Assignee have caused this
Notice of Assignment and Acceptance to be executed by their respective duly
authorized officials, officers or agents as of the date first above
mentioned.
Very
truly yours,
[ASSIGNOR]
By: ________________________________
Name:_____________________________
Title:______________________________
[ASSIGNEE]
By: ________________________________
Name:_____________________________
Title:______________________________
ASSIGNMENT
AND ACCEPTANCE
CONSENTED
TO:
CITIBANK,
N.A.,
as
the Administrative Agent
By: ________________________________
Name:_____________________________
Title:______________________________
By: ________________________________
Name:_____________________________
Title:______________________________
[AXTEL,
S.A.B. DE C.V.]
By: ________________________________
Name:_____________________________
Title:______________________________
By: ________________________________
Name:_____________________________
Title:______________________________
EXHIBIT
D
to
Credit Agreement
FORM
OF
SUBSIDIARY
JOINDER AGREEMENT
SUBSIDIARY
JOINDER AGREEMENT (this “Agreement”) dated as of ________,
___, by ______________, a __________ [corporation] (the “New
Subsidiary”), in favor of Citibank, N.A., as Administrative Agent (the
“Administrative Agent”), for the benefit of the Financing Parties.
Unless otherwise defined herein, capitalized terms used herein and defined
in
the Credit Agreement, dated as of [___________], 2006 (as
amended or otherwise modified from time to time, the “Credit
Agreement”), among Axtel, S.A.B. de C.V. (the “Borrower”),
Avantel, S. de X.X. de C.V., their subsidiaries, various financial institutions
from time to time party thereto as lenders, the Administrative Agent and Banco
Nacional de Mexico, S.A. Integrante del Grupo Financiero Banamex, as Peso Agent
(as amended, modified or supplemented from time to time, the “Credit
Agreement”), are used herein as therein defined and the rules of
interpretation set forth in Section 1.2 thereof shall apply
hereto.
WHEREAS,
the Borrower has entered into the Credit Agreement and certain other Financing
Documents providing for the making of Loans,
WHEREAS,
in connection with the Financing Documents, certain of the Borrower’s
Subsidiaries have entered into (or are required to enter into) the Credit
Agreement as Guarantors thereunder,
WHEREAS,
on ________, ___, the New Subsidiary was [newly formed/acquired] as a ___%
[directly/indirectly] owned Subsidiary of the Borrower,
WHEREAS,
pursuant to Section 6.2(j) of the Credit Agreement, the New Subsidiary is
required to become a party to the Credit Agreement as a Guarantor,
and
WHEREAS,
the New Subsidiary desires to execute and deliver this Agreement in order to
become a party to the Credit Agreement pursuant to Section 6.2(j) of the
Credit Agreement,
NOW,
THEREFORE, IT IS AGREED as follows:
SECTION
1. Joinder. By executing and delivering this Agreement, the New
Subsidiary hereby becomes a party to the Credit Agreement as a “Guarantor”
thereunder, and hereby expressly assumes all obligations and liabilities of
a
“Guarantor” thereunder. The New Subsidiary hereby makes each of the
representations and warranties contained in Section 5.1 of the Credit
Agreement on the date hereof as if such representations and warranties were
made
as of the date hereof, after giving effect to this Agreement.
SECTION
2. 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 were upon the same agreement.
SECTION
3. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAW OF NEW YORK (NOT INCLUDING SUCH STATE’S
CONFLICT OF LAWS PROVISIONS OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL
OBLIGATIONS LAW).
IN
WITNESS WHEREOF, the undersigned has caused this Agreement to be
duly executed and delivered as of the date first above written.
[NEW
SUBSIDIARY]
Address: By: __________________________
Name: ______________________
Title:________________________
ACKNOWLEDGED:
CITIBANK,
N.A., as the Administrative Agent
By: ________________________________
Name:_____________________________
Title:______________________________
EXHIBIT
E
to
Credit Agreement
FORMS
OF OPINIONS
