EXHIBIT 99.6
SECOND MODIFICATION OF LOAN DOCUMENTS
This SECOND MODIFICATION OF LOAN DOCUMENTS (this "Agreement") made as
of the 1st day of July, 2003 by and among PROMOTORA SERVIA, S.A. DE C.V., a
Mexican corporation, having an address at Xxxxxx 0, Xxxx. 000, Xxx. Xxxxxx,
Xxxxxx, D.F. ("Borrower"), XXXX XXXXXXX, having an address at Xxxxxx 0, Xxxxxxxx
00, Xxxxxx D.F.C.P. 06600 and XXXXX XXXXXXX, having an address at Xxxxxx 0,
Xxxxxxxx 00, Xxxxxx D.F.C.P. 06600 (collectively, "Guarantors") and CITIBANK,
N.A., a national banking association, having an office at 000 Xxxx 00xx Xxxxxx,
00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Lender").
W I T N E S S E T H:
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WHEREAS:
A. Lender has made a loan (the "Loan") to Borrower in connection with
which Lender is the owner and holder of
(1) that certain Consolidated and Restated Promissory dated June 28, 2002
(the "Note") made by Borrower to Lender in the original principal
amount of $23,150,000, which Note is governed by the Loan Agreement
(as hereinafter defined) and secured by the Security Agreements, the
Original Art Pledge and the Guaranty (as such terms are hereinafter
defined);
(2) that certain Loan Agreement dated October 3, 2001 made by and among
Borrower's predecessor-in-interest, Guarantors, certain other entities
controlled by Guarantors ("Other Entities") and Lender, as amended by
that certain Amendment No. 1 To The Loan Agreement dated as of
December 3, 2001 made by and among Borrower's predecessor-in-interest,
Guarantors and the Other Entities, by that certain Modification of
Loan Agreement dated as of March 31, 2002 made by and between Borrower
and Lender, by that certain Modification of Loan Agreement dated as of
June 28, 2002 made by and between Borrower and Lender and by that
certain Modification of Loan Documents dated as of September 6, 2002
made by and between Borrower and Lender (collectively, the "Loan
Agreement");
(3) the following security agreements (collectively, the "Security
Agreements"): (a) that certain Security Agreement dated December 21,
2001 made by GE Capital Bank, S.A., Institucion de Banca Multiple, GE
Grupo Financerio, as trustee ("GE Capital") for the benefit of Lender,
(b) that certain Contrato de Caucion Bursatil dated December 26, 2001
made by GE Capital for the benefit of Lender, (c) that certain
Contrato De Fideicomiso dated December 14, 2001 made by GE Capital for
the benefit of Lender, (d) that certain Security Agreement dated June
28, 2002 made by Servicios Directivos Servia S.A. de C.V.
("Servicios") for the benefit of Lender and (e) that certain Contrato
De Caucion Bursatil dated June 28, 2002 made by Servicios for the
benefit of Lender, which Security Agreements encumber all of the
right, title, estate and interest of Borrower in and to certain
Property (as defined in said Security Agreements);
(4) that certain Assignment of Sale Proceeds dated as of October 3, 2001
made by Xxxxxxx X.X. (f/k/a Xxxxxxx Limited) ("Xxxxxxx") to Lender and
ratified by Xxxxxxx by letter dated September 6, 2002 (the "Original
Art Pledge"); and
(5) that certain Guaranty dated October 3, 2001 made by Guarantors for the
benefit of Lender, as ratified by that certain Ratification and
Confirmation of Guaranty dated as of March 31, 2002 made by Guarantors
for the benefit of Lender, that certain Ratification and Confirmation
of Guaranty dated as of June 28, 2002 made by Guarantors for the
benefit of Lender and that certain Ratification and Confirmation of
Guaranty dated as of September 6, 2002 made by Guarantors for the
benefit of Lender (collectively, the "Guaranty").
The Note, Loan Agreement, Security Agreements, Original Art Pledge and Guaranty,
together with all other documents given in connection therewith (collectively,
"Original Documents") or herewith (collectively, "Modification Documents"), as
same may have been or may be amended or modified from time to time, are
sometimes hereinafter collectively referred to as the "Loan Documents";
B. An Event of Default occurred pursuant to Section 19(a)(vi) of the
Loan Agreement (the "Default"), and by reason thereof, Lender, pursuant to
letter dated February 13, 2003, declared all of the outstanding indebtedness
under the Loan Documents immediately due and payable;
C. The Loan matured on March 6, 2003 and has not been repaid, despite
such maturity and Lender's written demand for the repayment thereof;
D. The current outstanding principal balance of the Loan is
$12,440,000; and
E. Borrower has requested Lender to forbear from exercising Lender's
rights and remedies under the Loan Documents and to extend the maturity date of
the Loan and Lender has agreed to do so provided and on condition that Borrower,
GE Capital, Servicios, Xxxxxxx and Guarantors comply with all of the terms,
provisions, covenants and conditions hereinafter set forth. (All terms not
otherwise defined in this Agreement shall have the meanings ascribed to them in
the Loan Documents.)
NOW, THEREFORE, in consideration of the mutual promises and agreements
hereinafter set forth and other good and valuable consideration exchanged, the
receipt and sufficiency of which is hereby acknowledged by each party hereto, it
is agreed as follows:
1. Consent to Modification of Loan. Lender and Borrower agree
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that the terms of the Loan, and the Loan, shall be modified as specifically set
forth in this Agreement effective upon the satisfaction and performance of the
following terms, provisions, covenants and conditions:
1.1. Execute this Agreement and Modification Documents.
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Execution and delivery by all necessary parties of this Agreement and all other
Modification Documents;
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1.2. Pay all Costs. Payment by Borrower, concurrently
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herewith, of all costs, fees and expenses incurred by Lender in connection with
or arising from the Default and this Agreement, including, but not limited to,
appraisal fees, attorneys' fees and disbursements in the sum of $40,000, UCC,
lien, judgment and bankruptcy search fees, and filing costs;
1.3. Performance of Covenants and Obligations. Borrower,
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Guarantors, Xxxxxxx and all other necessary parties shall have performed and
fulfilled all of the covenants and obligations to be performed and fulfilled
under the Loan Documents and as a condition to this Agreement on or prior to the
date of this Agreement;
1.4. Payments Current. All payments on the Loan shall be
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current as of the date hereof and shall remain current during the term of the
Loan;
1.5. Ratification and Confirmation of Guaranty. Guarantors
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shall, concurrently herewith, execute and deliver to Lender a ratification and
confirmation of the Guaranty in the form of Exhibit A annexed hereto and made a
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part hereof;
1.6. Ratification and Confirmation of Security Agreements.
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GE Capital and Servicios shall, concurrently herewith, execute and deliver to
Lender a ratification and confirmation of their respective Security Agreements
in the form of Exhibit B annexed hereto and made a part hereof;
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1.7. New Art Pledge. Xxxxxxx shall, concurrently herewith,
----------------
execute and deliver to Lender a Pledge and Security Agreement in the form of
Exhibit C annexed hereto and made a part hereof, which shall restate and
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supersede the Original Art Pledge in its entirety;
1.8. Payment of Extension Fee. Borrower shall, concurrently
-------------------------
herewith, pay an extension fee to Lender in the sum of $124,400.00 (the
"Extension Fee") in consideration of Lender entering into this Agreement;
1.9. Interest Reserve. Borrower shall, concurrently
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herewith, deposit the sum of $330,000.00 into the Interest Reserve; and
1.10. Accrued Interest. Borrower shall, concurrently
-----------------
herewith, pay to Lender the sum of $113,000.00, which together with the
$240,000.00 previously delivered by Borrower to Lender, shall be applied by
Lender in payment of accrued interest due and owing on the Loan from the period
from March 6, 2003 through and including June 30, 2003.
1.11. Attorney Opinion Letter. Lender shall be furnished
-------------------------
with a satisfactory attorney opinion letter regarding both the capacity, power
and authority of Borrower to enter into and close the transaction contemplated
by this Agreement and the validity and enforceability of this Agreement in
accordance with its terms, provisions, covenants and conditions, subject to the
rights of Borrower in bankruptcy and creditors' rights generally. A similar
opinion letter shall be furnished with respect to Guarantors.
2. Outstanding Principal Balance. Borrower hereby acknowledges
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and agrees that the outstanding principal balance of the Loan as of the date
hereof is TWELVE MILLION FOUR HUNDRED FORTY THOUSAND and 00/100 DOLLARS
($12,440,000)
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("Principal Balance"), and that said sum, together with any and all monies or
indebtedness due and owing under the Loan Documents (collectively,
"Indebtedness"), including, but not limited to, principal, interest, accrued
interest and advances, is due and payable to Lender in accordance with terms and
provisions of the Loan Agreement (as hereby modified) without offset, defense,
claim or counterclaim of any kind or nature whatsoever.
3. Revised Interest Rate. Notwithstanding anything contained in
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the Loan Agreement to the contrary, the Interest Rate Markup for the entire
Principal Balance shall be 3.50%.
4. Revised Maturity Date. Notwithstanding anything contained in
-----------------------
the Loan Agreement, the Note or any of the other Loan Documents to the contrary,
the entire Indebtedness, if not sooner paid, shall be due and payable on the
earlier to occur of (i) July 1, 2004, (ii) a Primary Equity Offering or (iii) a
Company Sale.
5. Modification of Loan Agreement and Note.
--------------------------------------------
(a) Clause (a)(ii) of Section 4 of the Loan Agreement is
hereby modified by deleting the phrase "3.00%" and substituting the phrase
"3.50%" in its place.
(b) Clause (a)(i) of Section 8 of the Loan Agreement is
hereby modified by deleting the phrase "March 6, 2003" and substituting the
phrase "July I, 2004" in its place.
(c) Clause (g) of Section 8 of the Loan Agreement is
hereby modified by deleting the phrase "March 31, 2002" and substituting
the phrase "July 1, 2004" in its place.
(d) Section 11 of the Loan Agreement is hereby modified
by deleting the phrase "$650,000.00 of Borrower's funds" and substituting
the phrase "$330,000.00 of Borrower's funds" in its place.
(e) Clause (vi) of Section 19 of the Loan Agreement is
hereby modified by deleting the phrase "$3.25" and substituting the phrase
"$1.50" in its place.
(f) Clause (i) of the Paragraph of the Note captioned
"Covenant to Pay" is hereby modified by deleting the phrase "March 6, 2003"
and substituting the phrase "July 1, 2004" in its place.
6. Mandatory Repayments of the Indebtedness.
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(a) Borrower shall pay to Lender installments of
$1,000,000 per month (the "Monthly Principal Payments") to be applied in
reduction of the Principal Balance commencing on July 1, 2003 and on the
first day of each and every month thereafter through and including June 1,
2004. GE Capital, Servicios and Guarantors, as applicable, hereby
knowingly, voluntarily, intentionally, unconditionally and irrevocably
consent and agree that in the event Borrower fails to make any Monthly
Principal Payment on or before the fifteenth (15th) day of any such month,
Lender, or Lender's
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affiliate, shall thereupon be irrevocably and unconditionally directed and
instructed, without any further notice to or further consent of GE Capital,
Servicios or Guarantors, to sell, on GE Capital's, Servicios' and
Guarantors' behalf, as applicable, such amount of TMM Shares as is
necessary to make the applicable Monthly Principal Payment, provided and on
condition that Lender shall not be required, but shall have the right, to
sell the TMM Shares pursuant to this Section 6(a) unless the sales price
therefor shall be at least $1.50 per share (the "Minimum Sales Price") on
the date of any such sale and Lender shall release Lender's lien with
respect to the TMM Shares so sold. The proceeds of any such sale shall be
immediately delivered to Lender to be applied in reduction of the Monthly
Principal Payment. GE Capital, Servicios and Guarantors, as applicable,
shall have the right to direct and instruct Lender, or Lender's agent, to
sell, on GE Capital's, Servicios' and Guarantors' behalf, as applicable,
TMM Shares for an amount less than the Minimum Sales Price in order to
enable Borrower to make the Monthly Principal Payments when due. Borrower,
GE Capital, Servicios and Guarantors agree, upon Lender's request, to
execute and deliver such further documents, authorizations and/or sales
orders as Lender, or Lender's affiliate, may require to confirm the terms
set forth herein. Nothing contained herein shall alter, modify, extend or
waive Borrower's obligation to make the Monthly Principal Payments, and all
other payments, when due under this Agreement or any of Lender's rights and
remedies in connection with the TMM Shares, any other collateral for the
Indebtedness, or otherwise, in the event of Borrower's default under this
Agreement or any of the other Loan Documents.
(b) Borrower shall, concurrently with the sale or
refinance of that certain building known as and located at 000 Xxxxxxx
Xxxxx xx xx Xxxxxxx, Xxxxxxx Xxxxxx, Xxxxxx D.F.C.P. 06600 (the
"Building"), pay to, or deposit with, Lender, the sum of $5,000,000 (the
"Proceeds") to be held by Lender as collateral for the Loan or to be
applied in reduction of the Principal Balance. Borrower's failure to
deliver to Lender the Proceeds following a sale or refinance of the
Building shall constitute a default under this Agreement and under the Loan
Documents.
7. Shelf Registration. Upon the request of Lender, Borrower, GE
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Capital, Servicios or Guarantors, as applicable, shall cause TMM to prepare and
file, within a reasonable period of time, as determined by Lender, with the
United States Securities and Exchange Commission (the "Commission") a
registration statement for an offering to be made on a continuous basis pursuant
to Rule 415 under the Securities Act of 1933, as amended (the "Securities Act"),
as such rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission, covering all of the TMM Shares pledged to
Lender hereunder (the "Shelf Registration Statement"). The Shelf Registration
Statement shall be on Form S-3 (or any successor form then in effect) under the
Securities Act (or another appropriate form reasonably acceptable to Lender)
permitting registration of such TMM Shares for resale by Lender as provided in
Section 6(a) hereof. In addition, at Lender's request, upon an Event of
Default, Borrower, GE Capital, Servicios or Guarantors, as applicable, shall
cause TMM to prepare and file, within a reasonable period of time, as determined
by Lender, a Shelf Registration Statement permitting the registration of the TMM
Shares pledged to Lender for resale by Lender in the manner or manners
designated by Lender. Borrower, GE Capital, Servicios or Guarantors, as
applicable, shall cause TMM to use its best efforts to effect any such
registration (including, without limitation, appropriate qualification under
applicable blue sky or
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other state securities laws and appropriate compliance with applicable
regulations issued under the Securities Act and any other governmental
requirements or regulations) as promptly as possible after the filing thereof,
and shall cause TMM to use its commercially reasonable efforts to keep such
Shelf Registration Statement continuously effective under the Securities Act
until such time as all of the TMM Shares covered by such Shelf Registration
Statement have been sold or may be sold without volume restrictions pursuant to
Rule I44(k) as determined by Lender or the Loan has been paid in full.
Borrower, GE Capital, Servicios and Guarantors shall, jointly and severally,
indemnify Lender in connection with the Shelf Registration Statement.
8. Release of TMM Shares. Lender hereby agrees that Lender shall,
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upon Borrower's request on behalf of Guarantors, release Lender's lien on a
portion of the TMM Shares provided and on condition that in consideration for
such release Borrower shall pay to Lender concurrently therewith, to be applied
in reduction of the Principal Balance, an amount equal to $2.00 for each TMM
Share being released.
9. Authority and Enforceability. Borrower represents and warrants
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to Lender that the execution of this Agreement, the delivery by Borrower to
Lender of all monies, items and documents provided for herein, Borrower's
performance hereof and the transactions contemplated hereby have been duly
authorized by the requisite action on the part of Borrower. This Agreement
constitutes the valid and binding obligation of Borrower and is enforceable
against Borrower in accordance with its terms, provisions, covenants and
conditions.
10. Financial Condition. Borrower represents and warrants to
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Lender that Borrower's financial condition is and shall remain such as to enable
Borrower to perform all of Borrower's monetary obligations as provided in this
Agreement and the Loan Documents.
11. Continuous Representations. Borrower is and shall continue to
--------------------------
be in compliance with all of the covenants, representations and warranties
contained in the Loan Documents.
12. No Defenses, Set-offs, Clams or Counterclaims. Borrower
--------------------------------------------------
represents and warrants Lender that Borrower has no defenses, set-offs, claims
or counterclaims of any kind or nature whatsoever against Lender or "Lender
Parties" (as hereinafter defined) with respect to this Agreement or the Loan
Documents or Borrower's obligation hereunder or thereunder, or any action
previously taken or not taken by Lender or Lender Parties with respect hereto or
thereto or with respect to any security interest, encumbrance, lien, or
collateral given to Lender in connection herewith or therewith.
13. Waiver and Release. Borrower hereby unconditionally and
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irrevocably waives, releases, and forever discharges Lender, and Lender's
parent, affiliates, subsidiaries (such persons or parties being hereinafter
collectively referred to as "Lender Entities") and Lender's and Lender Entities'
agents, officers, directors, shareholders, partners, members and employees
(Lender, Lender Entities and such other persons or parties being herein
collectively referred to as "Lender Parties"), from and against any and all
rights, claims, counterclaims, actions or causes of action against Lender and/or
Lender Parties, arising out of Lender's and/or Lender Parties' actions or
inactions in connection with the Loan prior to the execution and delivery of
this Agreement, or any security interest, lien or collateral given to Lender
and/or
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Lender Parties in connection therewith, as well as any and all rights of
set-off, defenses, claims, actions, causes of action and any other bar to the
enforcement of this Agreement and/or the Loan Documents.
14. Partial Invalidity. If any word, sentence, paragraph or
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article of this Agreement is found to be void or voidable, then so long as
Lender's security interest is not adversely affected or diminished in value, and
all or any portion of the Principal Balance remains due and owing, then, at
Lender's option, the balance of this Agreement shall nevertheless be legal and
binding with the same force and effect as though the void or voidable parts were
deleted herefrom.
15. Amendment. This Agreement shall not be amended or modified in
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any way except by an instrument in writing executed by each of the parties
hereto.
16. Choice of Law; Service of Process. This Agreement and all
-------------------------------------
matters related hereto shall be construed and enforced in accordance with the
laws of the State of New York as to validity, construction, performance and
remedies without reference to principles of conflict of laws. Borrower hereby
knowingly, voluntarily, intentionally, unconditionally and irrevocably consents
to submit to personal jurisdiction in all state and federal courts located in
the State and County of New York in any action or proceeding relating to this
Agreement, the Loans or any of the Loan Documents. Service of any summons and
complaint or other process in any such action or proceeding may be made upon
Borrower and Guarantors by registered or certified mail, return receipt
requested, at the address set forth herein, Borrower and Guarantors hereby
waiving personal service thereof, or as may otherwise be permitted by law.
Borrower and Guarantors hereby knowingly, voluntarily, intentionally,
unconditionally and irrevocably (a) waive any rights of Borrower or Guarantors
pursuant to the laws of Mexico or any other court or jurisdiction by virtue of
which exclusive jurisdiction of the courts of Mexico or any other court or
jurisdiction might be claimed; (b) waive any and all objections as to venue and
any and all rights Borrower or Guarantors may have to seek a change of venue
with respect to any action or proceeding; (c) waive any and all defenses granted
by the laws of Mexico or any other country or jurisdiction unless such defenses
are also allowed by the laws of the State of New York; and (d) agree that any
final judgment rendered against Borrower and Guarantors in any such action or
proceeding shall be conclusive and may be enforced in Mexico pursuant to
applicable law or treaty or any other country or jurisdiction by suit on the
judgment or in any manner provided by applicable law or treaty and expressly
consents to the affirmation of the validity of any such judgment by the courts
of Mexico or any other country or jurisdiction so as to permit execution
thereon. Nothing herein shall affect the right of Lender to commence legal
proceedings or otherwise proceed against Borrower or Guarantors in any other
country or jurisdiction in which assets of the Borrower or Guarantors are
located or to serve process in any other manner permitted by applicable law or
treaty. Borrower or Guarantors further agree that any action or proceeding by
Borrower or Guarantors against Lender in respect to any matters arising out of,
or in any way relating to, this Agreement, the Loans or any of the Loan
Documents shall be brought only in the State and County of New York. Borrower
and Guarantors hereby represent and warrant that, to the best of Borrower's or
Guarantors' knowledge, there are no treaties or laws which would preclude the
recognition of any judgment rendered by any state or federal court sitting in
the State of New York, and the enforcement of any such judgment, by the courts
of Mexico, and Borrower and Guarantors agrees that Borrower and Guarantors shall
interpose no
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defense or claim against and shall consent to the issuance of all necessary
documents by the courts of Mexico in order to execute upon any such judgment.
17. Entire Agreement. This Agreement and the Loan Documents
-----------------
constitute the entire agreement among the parties hereto with respect to the
matters set forth herein, and there are no other agreements, understandings,
warranties or representations with respect to said matters. Any exhibits
annexed hereto are hereby incorporated herein by reference and made a part
hereof. This Agreement is not intended to have any legal effect, or to be a
legally binding agreement, or any evidence thereof, until this Agreement has
been signed by each of the parties hereto, a fully executed counterpart has been
delivered to Borrower, and all conditions to effectiveness hereunder have been
satisfied.
18. Third Party Beneficiaries. This Agreement is entered into for
-------------------------
the exclusive benefit of the parties hereto and (subject to the terms of
Paragraph 19 hereof) no other party shall derive any rights or benefits
herefrom.
19. Binding Effect. This Agreement shall be binding upon and
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inure to the benefit of the parties hereto and their respective heirs,
executors, administrators, successors, legal representatives and assigns.
20. Defaults. The failure of Borrower to fulfill any of the
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terms, provisions, covenants or conditions set forth in this Agreement or in any
of the Loan Documents shall constitute a default under this Agreement and the
Loan Documents which shall entitle Lender to exercise any and/or all of Lender's
rights and remedies hereunder and/or thereunder and/or at law.
21. Original Documents Continue. The Original Documents are
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deemed modified only to the extent necessary to effectuate the intent, terms,
provisions, covenants and conditions of this Agreement and the Modification
Documents. Except as expressly provided in this Agreement and the Modification
Documents, all of the terms, provisions, covenants and conditions of the
Original Documents shall be and remain in full force and effect as written,
unmodified hereby. Borrower hereby further ratifies and acknowledges the
continuing validity and enforceability of the Original Documents as herein
modified and the obligations and first liens evidenced thereby. In the event of
any conflict between the terms, provisions, covenants and conditions of this
Agreement and the Original Documents, this Agreement shall control. This
Agreement shall not waive, suspend, diminish or impair the Original Documents or
the obligations, liabilities, liens or security interests represented thereby.
22. Construction. This Agreement shall be construed without
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regard to any presumption or other rule requiring construction against the party
causing this Agreement to be drafted.
23. Notices. All notices under this Agreement and the
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Modification Documents shall be in writing and shall be deemed sufficiently
given or served for all purposes when delivered as set forth in the Loan
Agreement.
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24. Joint and Several. If Borrower consists of more than one
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person or party, the obligations and liabilities of each such person or party
hereunder shall be joint and several.
[balance of page intentionally left blank]
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25. Waiver of Trial By Jury. Lender and Borrower hereby
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knowingly, voluntarily, intentionally, unconditionally and irrevocably waive all
right to trial by jury in any action, proceeding or counterclaim arising out of
or relating to this Agreement or any of the other Loan Documents.
IN WITNESS WHEREOF, the undersigned have executed and delivered this
instrument as of the day and year first above written.
LENDER:
CITIBANK, N.A.
By: /s/ Xxxxxxxxx X. Xxxxxx
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Xxxxxxxxx X. Xxxxxx
Vice President/Senior Credit Officer
BORROWER:
PROMOTORA SERVIA, S.A. DE C.V.
By: /s/ Xxxx Xxxxxxx Xxxxxxx
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Xxxx Xxxxxxx Xxxxxxx
President
By: /s/ Xxxxx Xxxxxxx Xxxxxxx
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Xxxxx Xxxxxxx Xxxxxxx
Vice President
GUARANTORS:
/s/ Xxxx Xxxxxxx
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XXXX XXXXXXX
/s/ Xxxxx Xxxxxxx
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XXXXX XXXXXXX
[signature blocks continue on next page]
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ACKNOWLEDGED AND CONSENTED TO
AS TO SECTION 6(A) AND 7 ONLY:
GE CAPITAL BANK, S.A., INSITUCION DE BANCA MULTIPLE,
GE GRUPO FINANCIERO, ACTING AS TRUSTEE OF TRUST F/410
IN FULFILLMENT OF TRUST PURPOSES, AND LIMITED TO TRUST ESTATE.
By: /s/
-------------------------------
Name:
Title:
ACKNOWLEDGED AND CONSENTED TO
AS TO SECTION 6(A) AND 7 ONLY:
SERVICIOS DIRECTIVOS SERVIA S.A. DE C.V.
By: /s/
-------------------------------
Name:
Title:
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EXHIBIT A
Form of Ratification and Confirmation of Guaranty
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RATIFICATION AND CONFIRMATION OF GUARANTY
RATIFICATION AND CONFIRMATION OF GUARANTY ("Ratification") made by
XXXX XXXXXXX and XXXXX XXXXXXX (collectively, "Guarantors") for the benefit of
CITIBANK, N.A. ("Lender").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS:
A. Lender made a loan in the principal amount of $23,150,000 (the
"Loan") to Promotora Servia S.A. de C.V. ("Borrower") which principal amount has
been reduced to $12,440,000;
B. The Loan is evidenced by a Consolidated and Restated Promissory
Note made by and between Borrower and Lender dated as of June 28, 2002 (the
"Note"), and is governed by a Loan Agreement made by and among Borrower's
predecessor-in-interest, Guarantors, Lender and certain other entities
controlled by Guarantors ("Other Entities") dated as of October 3, 2001, as
modified by that certain Amendment No. 1 To The Loan Agreement dated as of
December 3, 2001 made by and among Borrower's predecessor-in-interest,
Guarantors, the Other Entities and Lender, that certain Modification of Loan
Agreement dated as of March 31, 2002 made by and between Borrower and Lender,
that certain Modification of Loan Agreement dated as of June 28, 2002 made by
and between Borrower and Lender and that certain Modification of Loan Documents
dated as of September 6, 2002 made by and between Borrower and Lender
(collectively, the "Loan Agreement") and other documents ancillary thereto;
C. By Guaranty dated as of October 3, 2001, as ratified by
Ratification and Confirmation of Guaranty dated as of March 31, 2002 and
Ratification and Confirmation of Guaranty dated as of June 28, 2002, and
Ratification and Confirmation of Guaranty dated as of September 6, 2002,
Guarantors have guaranteed all of the payments and performance of all of the
obligations of Original Borrower to Lender under the Loan, as such may exist
from time to time (collectively, the "Obligations");
D. The Loan has matured and has not been repaid, despite such
maturity and Lender's demand for the repayment thereof;
E. Borrower has requested Lender to modify certain provisions of
the Loan Documents (as defined in the Loan Agreement) and to extend the maturity
date of the Loan to the earlier to occur of (i) July 1, 2004, (ii) the Primary
Equity Offering (as defined in the Loan Agreement) or (iii) a Company Sale (as
defined in the Loan Agreement);
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F. Pursuant to that certain Second Modification of Loan Documents
dated as of the date hereof made by and among Borrower, Guarantors and Lender,
Lender has agreed to modify certain provisions of the Loan Documents and extend
the maturity date of the Loan; and
G. In order to induce Lender to consent to the modification of the
Loan Documents and extension of the maturity date of the Loan, Guarantors have
agreed to ratify and confirm the terms, provisions, covenants and conditions of
the Guaranty.
NOW, THEREFORE, in consideration of ten dollars ($10.00) and other
good valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, it is hereby agreed as follows:
1. Guarantors hereby acknowledge and agree that the Guaranty has
not been revoked, terminated or amended and remains in full force and effect.
2. Guarantors hereby ratify and confirm the Guaranty with the same
force and effect as though herein restated at length and acknowledge that the
Guaranty is a guarantee of (i) payment of the Guaranteed Amount (as such term is
defined in the Guaranty), which amount is now $12,440,000 plus interest,
premiums, expenses and all other sums due and owing under the Loan Documents and
(ii) performance of the Obligations.
3. The receipt by Lender of a facsimile of Guarantors' signatures
hereto shall be deemed to be incontrovertible evidence that Guarantors have
executed and delivered this Ratification with the same force and effect as
though the original executed Ratification has been delivered. This Ratification
may be executed in separate counterparts which, when taken together, shall
constitute one fully-executed Ratification.
IN WITNESS WHEREOF, the undersigned have duly executed this
Ratification to be effective as of the 1st day of July, 2003.
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XXXX XXXXXXX XXXXX XXXXXXX
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EXHIBIT B
Ratification and Confirmation of Security Agreement
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[To Be Inserted]
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EXHIBIT C
New Art Pledge
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[To Be Inserted]
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RATIFICATION AND CONFIRMATION OF GUARANTY ("Ratification") made by
XXXX XXXXXXX and XXXXX XXXXXXX (collectively, "Guarantors") for the benefit of
CITIBANK, N.A. ("Lender").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS :
A. Lender made a loan in the principal amount of $23,150,000 (the
"Loan") to Promotora Servia S.A. de C.V. ("Borrower") which principal amount has
been reduced to $12,440,000;
B. The Loan is evidenced by a Consolidated and Restated Promissory
Note made by and between Borrower and Lender dated as of June 28, 2002 (the
"Note"), and is governed by a Loan Agreement made by and among Borrower's
predecessor-in-interest, Guarantors, Lender and certain other entities
controlled by Guarantors ("Other Entities") dated as of October 3, 2001, as
modified by that certain Amendment No. 1 To The Loan Agreement dated as of
December 3, 2001 made by and among Borrower's predecessor-in-interest,
Guarantors, the Other Entities and Lender, that certain Modification of Loan
Agreement dated as of March 31, 2002 made by and between Borrower and Lender,
that certain Modification of Loan Agreement dated as of June 28, 2002 made by
and between Borrower and Lender and that certain Modification of Loan Documents
dated as of September 6, 2002 made by and between Borrower and Lender
(collectively, the "Loan Agreement") and other documents ancillary thereto;
C. By Guaranty dated as of October 3, 2001, as ratified by
Ratification and Confirmation of Guaranty dated as of March 31, 2002 and
Ratification and Confirmation of Guaranty dated as of June 28, 2002, and
Ratification and Confirmation of Guaranty dated as of September 6, 2002,
Guarantors have guaranteed all of the payments and performance of all of the
obligations of Original Borrower to Lender under the Loan, as such may exist
from time to time (collectively, the "Obligations");
D. The Loan has matured and has not been repaid, despite such
maturity and Lender's demand for the repayment thereof;
E. Borrower has requested Lender to modify certain provisions of
the Loan Documents (as defined in the Loan Agreement) and to extend the maturity
date of the Loan to the earlier to occur of (i) July 1, 2004, (ii) the Primary
Equity Offering (as defined in the Loan Agreement) or (iii) a Company Sale (as
defined in the Loan Agreement);
F. Pursuant to that certain Second Modification of Loan Documents
dated as of the date hereof made by and among Borrower, Guarantors and Lender,
Lender has agreed to modify certain provisions of the Loan Documents and extend
the maturity date of the Loan; and
G. In order to induce Lender to consent to the modification of the
Loan Documents and extension of the maturity date of the Loan, Guarantors have
agreed to ratify and confirm the terms, provisions, covenants and conditions of
the Guaranty.
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NOW, THEREFORE, in consideration of ten dollars ($10.00) and other
good valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, it is hereby agreed as follows:
1. Guarantors hereby acknowledge and agree that the Guaranty has
not been revoked, terminated or amended and remains in full force and effect.
2. Guarantors hereby ratify and confirm the Guaranty with the same
force and effect as though herein restated at length and acknowledge that the
Guaranty is a guarantee of (i) payment of the Guaranteed Amount (as such term is
defined in the Guaranty), which amount is now $12,440,000 plus interest,
premiums, expenses and all other sums due and owing under the Loan Documents and
(ii) performance of the Obligations.
3. The receipt by Lender of a facsimile of Guarantors' signatures
hereto shall be deemed to be incontrovertible evidence that Guarantors have
executed and delivered this Ratification with the same force and effect as
though the original executed Ratification has been delivered. This Ratification
may be executed in separate counterparts which, when taken together, shall
constitute one fully-executed Ratification.
IN WITNESS WHEREOF, the undersigned have duly executed this
Ratification to be effective as of the 1st of July, 2003.
/s/ XXXX XXXXXXX /s/ XXXXX XXXXXXX
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XXXX XXXXXXX XXXXX XXXXXXX
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