COMISION HDERAL ' DE arCnUClDAD SUBDIRECCION DE FINANZAS GERENCIA DE PLANEACION FINANCIERA MEMORANDUM NO. GPF -006 i3 0 Mexico, D.F., "'~ SEP 2013'
COMISION HDERAL ' DE arCnUClDAD
SUBDIRECCION DE FINANZAS GERENCIA DE PLANEACION FINANCIERA
MEMORANDUM NO. GPF -006 i3 0
LlC. XXXXXXXXX XXXXXX XXXXXX GERENTE DE CREDITOS PRESENTE
Mexico, D.F., "'~ SEP 2013'
Hago referencia al Contrato de CrE3dito Sindicado Revolvente de fecha 26 xx xxxxxx de 2013 que Comisi6n Federal de Electricidad suscribi6 con un grupo de Bancos, hasta por la cantidad de $1,250'000,000.00. (Un Mil Doscientos Cincuenta Millones de U.S. D61ares 00/100), cuyos recursos seran destinados para el refinanciamiento del saldo de las obligaciones del credito sindicado de fecha 1° de diciembre de 2010 y financiar las actividades que establece el Estatuto Organico de la Comisi6n Federal de Electricidad.
Sobre el particular, me permito enviar un (1) tanto original de los siguientes documentos: "Credit Agreement" del Cn9dito Sindicado Revolvente arriba mencionado, "Fee XxXxx" (Administration Fee), "Fee Letter for Comisi6n Federal de Electricidad" (Arrangemet Fee), "Commitment XxXxx" y "Amendment No.1 to Commitment XxXxx", firmados entre las partes y debidamente registrados por parte de la Secretarfa de Hacienda y Credito Publico, para los fines correspondientes.
Asimismo se adjunta al presente una copia del oficio de autorizaci6n numero 305-1.2.1- 231, de fecha 16 xx xxxxxx de 2013 emitido por la S.H.C.P., mediante el cual autoriz6 la contrataci6n de dicho credilo.
Sin otro particular, agradezco su atenci6n al presente.
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Atentamente,
L~M6NC XXXXXX GERENTE
Mal. Xxxxxxx Xxxxx Xxxxxxxx. Subdirector de Finanzas. Lie. Xxxxxxxxx Xxxxxx Xxxxx, Subdirectora de Operacion Financiera.
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CREDIT AGREEMENT
Dated as of August 26, 2013
among
COMISI6N FEDERAL DE ELECTRICIDAD
as Borrower
and
The LENDERS Named Herein
and
BBVA BANCOMER, S.A., INSTITUCI6N DE BANCA MULTIPLE, GRUPO FINANCIERO BBVA BANCOMER
as Administrative Agent
BBV A Securities Inc. Citigroup Global Markets Inc.
HSBC Securities (USA) Inc. Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx Incorporated
Mizuho Bank, Ltd. Sumitomo Mitsui Banking Corporation
The Bank of Nova Scotia and
The Bank of Tokyo-Mitsubishi UFJ, Ltd.
as Lead Arrangers and Joint Bookrunners
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TABLE OF CONTENTS :1 i'" \>:."5?,:;;\{}~/ m 3
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6 0 /, \\lO·c~. f ARTICLE 1 DEFINITIONS AND ACCOUNTING TERMS ................................................ Co 1'."';'. [,l ."/
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Section 1.01 Certain Defined Terms ................................................. ........... .1 . ~ Section 1.02 Other Definitional Provisions ................................................ 11 Section 1.03 Accounting Terms and Determinations ................................. .12
ARTICLE 2 AMOUNTS AND TERMS OF THE ADVANCES ............................................... 12
Section 2.01 Section 2.02 Section 2.03 Section 2.04 Section 2.05 Section 2.06 Section 2.07 Section 2.08 Section 2.09 Section 2.1 0 Section 2.11 Section 2.12 Section 2.13 Section 2.14
The Advances .......... ............................................................... 12 Making the Advances ............................................................. 13 Fees ........................................................................................ 15 Termination or Reduction of the Commitments .................... .15 Repayment .............................................. ................................ 15 Interest ................................................................................... 15 Interest Rate Determination .. ................................................. 16 Prepayments ... ........................................................................ 16 Increased Costs ...................................................................... 17 Illegality ........ ......................................................................... 19 Payments and Computations .................................................. 19 Taxes ...................................................................................... 20 Sharing of Payments, Etc ....................................................... 25 Use of Proceeds ..................................................................... 26
ARTICLE 3 CONDITIONS TO EFFECTIVENESS AND LENDING ........................................ 26
Section 3.01 Section 3.02 Section 3.03
Conditions Precedent to the initial Borrowing ........... .......... .26 Conditions Precedent to Each Borrowing ........ ..................... 28 Determinations Under Section 3.01 and 3.02 ........................ 29
ARTICLE 4 REPRESENTATIONS AND WARRANTIES ..................................................... 29
Section 4.01 Representations and Warranties of the Borrower ................ .29
ARTICLE 5 COVENANTS OF THE BORROWER .............................................................. 34
Section 5.01 Section 5.02
Affirmative Covenants ............................................................ 34 Negative Covenants ............................................................... 36
ARTICLE 6 EVENTS OF DEFAULT ................................................................................ 39
Section 6.01 Events of Default ............................................. ....................... 39
ARTICLE 7 THE ADMINISTRATIVE AGENT ................................................................ ..42
Section 7.01 Authorization and Action ...................................................... .42
11 MIAMI 980072 (2K)
Section 7.02 Section 7.03 Section 7.04 Section 7.05 Section 7.06
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[Reserved} ..................................................................... (~,,' . .43 -- L d C d 'tD .. (' ("3 he? en er re 1 eclslon .. " .................................... " .. " .... . Q):~.<:[ "\,'(1'.,,
-. -, - -- - /. "'Jh-"-"17nC,\() ,y< IndemnificatIOn ................................................................... 43. . _.' . " , Successor Administrative Agent ............................................. '1-:::--,,;:;::;;;;:,7
ARTICLE 8 MISCELLANEOUS ..................................................................................... .44
Section 8.01 Section 8.02 Section 8.03 Section 8.04 Section 8.05 Section 8.06 Section 8.07 Section 8.08 Section 8.09 Section 8.1 0 Section 8.11 Section 8.12 Section 8.13 Section 8.14 Section 8.15 Section 8.16 Section 8.17 Section 8.18
Schedules Schedule I Schedule 2
Exhibits Exhibit A Exhibit B Exhibit C ExhibitD-I ExhibitD-2
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Amendments, Etc ................................................................... .44 Notices, Effectiveness; Electronic Communications .............. 45 No Waiver; Remedies ............................................................ .46 Costs and Expenses ................................................................ 46 [Reserved} ................................................. ............................ .48 Binding Effect ........................................................................ .48 Assignments and Participations ............................................ .48 Confidentiality ........................................................................ 51 Governing Law ...................................................................... .52 Execution in Counterparts ..................................................... 52 Jurisdiction, Etc ..................................................................... 52 Judgment Currency ................................................................ 53 Waiver of Jury Trial ............................................................... 53 International Banking Facilities ............................................ 53 Waiver of Immunity ................................................................ 54 No Fiduciary Duty ................................................................. 54 USA Patriot Act ...................................................................... 54 Lead Arrangers and Joint Bookrunners ................................. 54
List of Lending Offices Commitments
Form of Note Form of Notice of Borrowing Form of Assigrunent and Acceptance Foml of Opinion - Special New York Counsel for the Borrower Form of Opinion - Mexican Counsel for the Borrower
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CREDIT AGREEMENT \5 -fif(f\:li~}\\)n ~ lit 'co' !. -L ______ ,_, , --,~~ .. "~- 0
CREDIT AGREEMENT dated as of August 26, 2013, among COMI QJ'lo {it,; FEDERAL DEELECTRICIDAD(the "Uorrower"}, a decentralized entity of (~>,\. - 6,0';,9:;' Federal Government (organismo descentralizado de fa Administraci6n Publica (o}: 4'JfO"'";~-?'~ Federal) of Mexico (as hereinafter deflned), the xxxxx, fmaneial institutions and other institutional lenders party hereto (the "Lenders"), and BBV A BANCOMER, SA, INSTITUCION DE BANCA MULTIPLE, GRUPO FINANCIERO BBVA BANCOMER, as admioistrative agent (in such capacity, the "Administrative Agent") for the Lenders (as hereinafter deflned), The parties hereto hereby agree as follows:
ARTICLE 1 DEFINITIONS AND ACCOUNTING TERMS
Section 1,01 Certain Defined Terms, As used in this Agreement, the following tenns shall have the following meaniogs (such meanings to be equally applicable to both the singular and plural fonns of the tenns defmed):
"Accouuts Receivable" means, as to any Person, amounts payable to such Person in respect of the sale, lease or other provision of goods, energy, services or the like, whether or not yet earned by performance,
"Administrative Agent" has the meaning speeifled in the introductory paragraph hereto,
"Administrative Agent's Account" means the account of the Admioistrative Agent, with its office at Xxxxxx Urales 620, Pi so 2, Col. Xxxxx de ChapuJtepec, Mexico, DF 11000, maiotained by the Administrative Agent at JP Xxxxxx Xxxxx Bank, NA in New York, New York, ABA No, 000000000, Account No, 000000000, Reference: CFE, Attention: Xxxxxxxxxx Xxxxxx,
"Administrative Agent's Fee Letter" means the letter dated as of the date hereof between the Borrower and the Administrative Agent
"Advance" means an advance by a Lender to the Borrower pursuant to Article 2,
"Affiliate" means, as to any Person, any other Person that, directly or indirectly, controls, is controlled by or is under common control with such Person, For purposes of this deflnition, the term "control" (including the tenns "controlling", "controlled by" and "under common control with") of a Person means the possession, direct or indirect, of the power to vote 10% or more of the Voting Stock of such Person or to direct or cause the direction of the management and policies of such Person, whether through the ownership of Votiog Stock, by contract or otherwise,
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Q'X~ \~f~'~~\ ,:; st" i:~';:~"~~t:--h':~; '. ':; "Applicable Margin" means, as of any date, 1.15% per annum. . -;:,;('1' \'<." 's', j,,".) 'j, j
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"Assignment and Acceptance" means an assignment and acceptance terecr--- J', / c, ,'1\ \'~.;.>'-" 9" '~'I Into by-a Lender and -an- Eligible Assignee, and-accepted by the Administrative ~nt;-, 0.' - "e;' ,.(:;,/ - and (lfapplJcable) the Borrower, III substantially the form of Exhibit C hereto. ''-'~'::_~ __ ''''''/'
"Available Assets" means, as to any Person, assets of such Person consisting of cash on hand or on deposit in xxxxx, certificates of deposit and bankers' acceptances, debt securities and intangible assets (other than equity securities and Accounts Receivable).
"Borrower" has the meaning specified in the introductory paragraph hereto.
"Borrowing" means a borrowing consisting of Advances made by the Lenders pursuant to Article 2.
"Business Day" means a day ofthe year on which xxxxx are not required or authorized by law to close ill Mexico City or New York City and on which dealings are carried on in the London interbank market.
"CFE Charter" means the Estatuto Organico de la Comisi6n Federal de Electricidad, as amended or modified from time to time.
"Code" means the United States Internal Revenue Code of 1986, as amended.
"Commitment" has the meaning specified in Section 2.01(a).
"Commitment Letter" means the letter dated July 11, 2013, among the Borrower, the Lead Arrangers and Joint Bookrunners, Bank of America, N.A., BBVA Bancomer, S.A., Instituci6n de Banca Multiple, Grupo Financiero BBVA Bancomer, The Bank of Tokyo-Mitsubishi UFJ, Ltd., Citigroup Global Markets Inc., Mizuho Bank, Ltd" The Banle of Nova Scotia, Sumitomo Mitsui Banking Corporation and HSBC Bank USA, NA, as the xxxxx, and the Administrative Agent.
"Confidential Information" means infonnation that the Borrower furnishes to the Administrative Agent or any Lender in writing designated as confidential, but does not include any such infonnation that (i) is or becomes generally available to the public or that is or becomes available to the Administrative Agent, such Lender or any of their respective Representatives from a source other than the Borrower on a non-confidential basis, (ii) was already known to the Administrative Agent, such Lender or any of their respective Representatives prior to such information being furnished by the Borrower or (iii) was independently developed, discovered or arrived at by the Administrative Agent, such Lender or any of their respective Representatives from non-confidential infonnation.
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"Contractual Obligation" means, as to any Person, any provisio OIDa~Y\. '\ '\\ \ '1'\ 1\1);, __ security issued by such Person or of any agreement, undertaking or contr . t dt ~~joc~:~~~c--'---- :,t'} indenture, mortgage, deed of trust or other instrument, document or agree' l\!i 4J 0~~,'? which such Person is a party or by which it or any of its property is bound .. ~ ~ O~:_Of A'JToo\1;~? _
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"Cost of Funds Rate" means, for any day in an Interest Period during whic --- the Cost of Funds Rate shall be in effect for any or all of the Advances, the rate per annum that is the higher of (x) the sum of 0.50% plus the Federal Funds Rate for such day and (y) the rate ofinterest determined by the Administrative Agent on the second Business Day prior to the first day of such Interest Period to be the arithmetic mean (rounded upwards, if not already such a multiple, to the nearest whole multiple of 11100 of 1 percent) of the cost to each Reference Bank (as notified to the Administrative Agent) of obtaining funding for loans in Dollars in an amount comparable to the outstanding amount of the Advances for which the interest rate is being determined with a maturity comparable to such Interest Period (in good faith and using commercially reasonable efforts to minimize the interest cost to the Borrower) from whatever sources it may select. Each Reference Bank shall deliver a certificate to the Administrative Agent setting forth, in reasonable detail, the basis for the computation of rates quoted by it for purposes of determining its cost of funds rate, which certificate shall in the absence of manifest error be conclusive and binding.
"Default" means any Event of Defaultor any event that would constitute an Event of Default hut for the requirement that notice be given or time elapse or both.
"Designated Jurisdiction" means any country or territory to the extent that such country or territory is the subject of comprehensive country-wide or territory- wide Sanctions laws, regulations, embargoes, or restrictive measures administered, enacted, or enforced by the United States or other jurisdictions that broadly prohibit dealings with such country, including without limitation those administered or enforced by OFAC pursuant to the International Economic Powers Act, the U.S. Trading with the Enemy Act, and any of the foreign assets control regulations. Without limiting the definition of Designated Jurisdiction, the countries that are the subject of comprehensive country-wide or territory-wide Sanctions administered or enforced by OFAC that broadly prohibit dealings with such countries as ofthe date hereof are Cuba, the Islamic Republic of Iran, North Korea, Sudan, and Syria.
"Dollars" and "US$" each means the lawful currency of the United States.
"Effective Date" has the meaning specified in Section 3.01.
"Electricity Law" means the Ley del Servicio Publico de Energia Electrica of Mexico, as amended or modified from time to time.
"Eligible Assignee" means a financial institution that is a Mexican Bank, Export Credit Agency or Foreign Financial Institution; prOVided, however, that
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neitber the Borrower nor an Affiliate of the Borrower shall qualify as an Assignee,
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"Environmental Action" means any action, suit, demand, demand let "'~ Do, ' ' ;; claim, notice of noncompliance or violation, notice of liability or potential liability, .::::;;--,.;::;..- investigation, proceeding, consent order or consent agreement relating in any way to any Environmental Law, Environmental Pennit or Hazardous Materials or arising from alleged injury or tbreat of injury to health, safety or the environment, including (a) by any governmental or regulatory authority for enforcement, cleanup, removal, response, remedial or other actions or damages and (b) by any governmental or regulatory authority or any third party for damages, contribution, indemnification, cost recovery, compensation or injunctive relief.
"Environmental Law" means any and all statutes, laws, judicial decisions, regulations, ordinances, rules, judgments, orders, decrees, injunctions, permits, concessions, grants, franchises, licenses, agreements and other governmental restrictions of Mexico relating to the environment (including normas oficiales mexicanas), the effect of the environment on human health or to emissions, discharges or releases of pollutants, contaminants, Hazardous Materials or wastes into the environment including ambient air, surface water, groundwater, or land, or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of pollutants, contaminants, Hazardous Materials or wastes or the clean-up or other remediation thereof.
"Environmental Permit" means any permit, approval, identification number, license or other authorization required under any Environmental Law,
"Eurocurreucy Liabilities" has the meaning specified in Regulation D,
"Events of Default" has the meaning specified in Section 6,01,
"Excess Amonnt" has the meaning specified in Section 2, 12(n)(ii),
"Existing Credit Facility" has the meaning specified in Section 2,01(a),
"Export Credit Agency" means an official non-Mexican fmancial institution for the promotion of exports registered in Book I (Libra l), Section 5 (Seccion 5) of the Registry of Foreign Xxxxx, Financial Entities, Pensions alld Retirement and Investment Funds (Registro de Bancos, Entidades de Financiamiento, Fondos de Pensiones y Jubilaciones y Fondos de Inversion del Extranjero) maintained by tbe Ministry of Finance for purposes of the Resolucion Miscelcmea Fiscal for the year 2013, Regia Il3,9,] and Article 1 96-II of the Ley delImpuesto Sobre la Renta (or any successor provisions),
"External Indebtedness" of any Person means Indebtedness of such Person which is by its terms, or at the option of the Person to whom it is owed may be,
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payable (a) in a currency other than Mexican Pesos, (b) outside the territory ~ Ii ~~-;-,; :i 0 Mexico and (c) to a Person resident or having its head office or chief place a S 1 ;;.'Si2;,? 1)f': .. ' b . 'd h . fM' c)" t::-.hyJ .'<" usmess outS! e t e terntory a exlCO. <I- ""./ v"
"FATCA" means Sections 1471 through 1474 of the Code, as of the date 0 I(} ~~W this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471 (b )(1) of the Code, and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergoverrnnental agreement entered into in connection with the implementation of such Sections of the Code.
"Federal Funds Rate" means, for any period, a fluctuating interest rate per annum equal for each day during such period to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published for such day (or, if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Banle of New York, or, if such rate is not so published for any day that is a Business Day, the average of the quotations for such day on such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by it.
"Fee Letters" means the Lead Arrangers' Fee Letter and the Administrative Agent's Fee Letter.
"Fiscal Year" means a calendar year beginning on January 1 and ending on December 31 of each year.
"Foreign Financial Institution" means x xxxxxx or financial institution (including non-bank ballies) which is (or, iflending through a branch or agency, its main office is) registered in Book I (Libro l), Section 1 (Secci6n 1) of the Registry of Foreign Xxxxx, Financial Entities, Pensions and Retirement Funds and Investment Funds (Registro de Bancos, Entidades de Financiamiento, Fondos de Pensiones y Jubilaciones y Fondos de Inversion del Extranjero) maintained by the Ministry of Finance for pnrposes of the Resoluci6n Miscelanea Fiscal for the year 2013, Regia 11.3.9.1, and Articles 179, 195 and 197 of the Ley delImpuesto sobre la Renta (or any successor provisions).
"General Public Debt Law" means the Ley General de Deuda Publica of Mexico, as amended or modified from time to time.
"Governmental Autbority" means any nation or goverrnnent, any state or other political subdivision thereof and any central xxxxxx (or similar monetary or regulatory authority) thereof and any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to goverrnnent.
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"Hazardous Materials" means (a) petroleum and petroleum pro ~~l Ic,~\;::> byproducts or breakdown products, radioactive materials, asbestos contain' "'/0 ~ ,.,,0 ',V materials, polychlorinated biphenyls and radon gas and (b) any other chemic " ~ O,?'R V~'i
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"Hedge Agreements" means interest rate swap, cap or collar agreements, interest rate future or option contracts, currency swap agreements, currency future or option contracts and other similar agreements.
"IFRS" has the meaning specified in Section 1.03.
"Indebtedness" of any Person means, at any date, without duplication, (a) all obligations of such Person for borrowed money or for the deferred purchase price of property or services (other than trade payables entered into in the ordinary course of business on ordinary terms); (b) all reimbursement or payment obligations of such Person with respect to letters of credit, bankers' acceptances, surety bonds and similar instruments; (c) all obligations of such Person evidenced by notes, bonds, debentures or similar instruments, including obligations so evidenced incurred in connection with the acquisition of property, assets or businesses; (d) all monetary obligations under any leasing or similar instrument which are required to be recorded as capitalized leases on the balance sheet of a lessee in accordance with applicable accounting principles; (e) all obligations of such Person in respect of Hedge Agreements (detennined, where applicable, at the net termination value thereof after giving effect to contractually permitted netting with the relevant counterparty); (f) all direct or indirect guaranties (including "ava/es" of such Person) in respect of, and all obligations (contingent or otherwise) of such Person to purchase or otherwise acquire, or otherwise assure a creditor against loss in respect of, any indebtedness referred to in clauses (a) through (e) above and any obligation to advance or supply funds to maintain working capital or equity capital of any other Person or otherwise to maintain the net worth or solvency of any other Person; and (g) all indebtedness referred to in clauses (a) through (e) above secured by (or for which the holder of such indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien upon or in property (including accounts and contract rights) owned by such Person, even though such Person has not assumed or become liable for the payment of such indebtedness.
"Indemnified Party" has the meaning specified in Section 8.04(b).
"Interest Period" means, for each Advance comprising part of the same Borrowing, the period commencing on (and including) the date of such Advance and ending on (but excluding) the last day of the period selected by the Borrower pursuant to the provisions below and, thereafter, each subsequent period commencing on (and including) the last day of the immediately preceding Interest Period and ending on (but excluding) the last day of the period selected by the Borrower pursuant to the provisions below. The duration of each such Interest Period shall be
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one, two, three or six months, as the Borrower may, upon notice received the> :\~,;" Q:Yli Administrative Agent not later than 12:00 P.M. (New York City time) on th i?d'/ , 1.",°;:- 'I BhusinessDay prior to the first day of such Interest Period, select; provided, h'XxxX. ~!i!::~;'~E~~~.::;;;',9 t at: .-.~--"
(i) the Borrower may not select any Interest Period that ends after the Termination Date;
(ii) Interest Periods commencing on the same date for Advances comprising part of the same Borrowing shall be of the same duration;
(iii) whenever the last day of any Interest Period would otherwise occur on a day other than a Business Day, the last day of such Interest Period shall be extended to occur on the next succeeding Business Day, provided, however, that, if such extension would cause the last day of such Interest Period to occur in the next following calendar month, the last day of such Interest Period shall occur on the next preceding Business Day; and
(iv) whenever the first day of any Interest Period occurs on a day of an initial calendar month for which there is no numerically corresponding day in the calendar month that succeeds such initial calendar month by the number of months equal to the number of months in such Interest Period, such Interest Period shall end on the last Business Day of such succeeding calendar month.
"Lead Arrangers and Joint Bookrunners" means BBV A Securities Inc. Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx Incorporated, The Bank of Tokyo-Mitsubishi UFJ, Ltd., Citigroup Global Markets Inc., HSBC Securities (USA) Inc., Mizuho Bank, Ltd., The Bank of Nova Scotia and Sumitomo Mitsui Banking Corporation, each in their capacities as a Joint Lead Arranger.
"Lead Arrangers' Fee Letter" means the letter dated July 11, 2013 among the Borrower, the Lead Arrangers and Joint Bookrunners, Bank of America, N.A., BBVA Bancomer, S.A., Instituci6n de Banca Multiple, Grupo Financiero BBV A Bancomer, HSBC Bank USA, N.A. and the Administrative Agent.
"Lenders" means the lenders listed on the signature pages of this Agreement and each Person that shall become a party hereto pursuant to Section 8.07.
"Lending Office" means, with respect to any Lender, the office of such Lender specified as its "Lending Office" opposite its name on Schedule 1 hereto or in the Assignment and Acceptance, as applicable, pursuant to which it became a Lender, or such other office of such Lender as such Lender may from time to time specify to the Borrower and the Administrative Agent.
7 MIAMI 980072 (2K)
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"Lending Parties" means the Administrative Agent, the Lenders al~ th~~\\V-\~':'\J:~b1:~"" 0 Lead Arrangers and Joint Bookrunners. W~'~00:;;':--' .P-'1
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,,~. i.,,,,,, "LIDO Rate Reserve Percentage" means, for anylnterest Period for a;~1, (\1" DE: l;\frO\~\\Od
Advances comprising part of the same Borrowing, the reserve percentage applic;$!i~';;; .. ::~.;;:~:;"" two Business Days before the first day of such Interest Period under regulations ''',,--' issued from time to time by the Board of Govemors ofthe Federal Reserve System (or any successor) for determining the maximum reserve requirement (including any emergency, supplemental or other marginal reserve requirement) for a member bank of the Federal Reserve System in New York City with respect to liabilities or assets consisting of or including Eurocurrency Liabilities (or with respect to any other category of liabilities that includes deposits by reference to which the- interest rate on Advances is determined) having a term equal to such Interest Period.
"LIBO Rate" means, for any Interest Period for each Advance comprising part of the same Borrowing, an interest rate per annum equal to the rate per annum set fortll on Reuters' LIDOR 01 Page (or any other successor or substitute page or service providing quotations of interest rates applicable to Dollar deposits in the London interbank market comparable to those currently provided on such page, as determined by the Administrative Agent from time to time) as of 11:00 A.M. (London tinle) two Business Days before the first day of such Interest Period for Dollar deposits having a tenor equal to the duration of such Interest Period. In the event that two or more such rates appear on the "LIDOR 01" Page, the "LIBO Rate" shall be the average (rounded upward to the nearest whole multiple of 1116 of 1 % per armum, if such a percentage is not such a multiple) of such offered rates. If such Reuters Page is not available then "LIDO Rate" shall mean the arithmetic mean (rounded upward to the nearest whole multiple of 1116 of 1 % per annum, if such a percentage is not such a multiple) of the respective rates per annum at which deposits in Dollars are offered by each of the Reference Xxxxx to prime xxxxx in the London interbank market for Dollar deposits in an amount comparable to the outstanding principal amount of the Advances for which an interest rate is then being determined with a maturity comparable to the Interest Period to be applicable to such Advances. If any such rate (or the average of any such rate) is less than zero, the LIBO Rate will be deemed to be zero.
"Lien" means any lien, security interest or other charge or encumbrance of any kind, or any other type of preferential arrangement, that has the practical effect of creating a security interest, including the lien or retained security title of a conditional vendor and any easement, right of way or other encumbrance on title to real property.
"Material Adverse Change" means any material adverse change in tlle business, condition (financial or otherwise), operations, performmlce, properties or prospects of the Borrower or the Borrower and its Subsidiaries taken as a whole.
"Material Adverse Effect" means a material adverse effect on (a) the business, condition (financial or otherwise), operations, performance, properties or
8 MIAMI 980072 (2K)
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§ a! ~}~,~::.---~--. (0 prospects of the Borrower or the Borrower and its Subsidiaries taken as a w ' leoo~;·tf'((\~ tl& ~ » (b) the ability of the Borrower to perform its obligations under any Transac n 1'\ tIt <"~t kL.~.L·---"' (] Document. ",.---- i:" :;
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"Mexican Bank" means a financial institution (instituci6n de banca rnu {p:{e2.i;- "jl.o,,'it~ duly organized under the Credit Institutions Law (Ley de Instituciones de Credito )Iit.:;,;;~=::;::.-;:; Mexico and licensed to engage in the business of banking by the Ministry of Finance.
"Mexican Pesos" means the lawful currency of Mexico.
"Mexico" means the United Mexican States.
"Ministry of Finance" means the Ministry of Finance and Public Credit (Secretarfa de Hacienda y Credito Publico) of Mexico.
"Nominal Commitment" means, as to each Lender, such Xxxxxx'x Commitment without giving effect to the reduction of the same pursuant to the proviso in Section 2.01(a).
"Note" means a promissory note of the Borrower payable to the order of any Lender, in substantially the form of Exhibit A hereto.
"Notice of Borrowing" has the meaning specified in Section2.02(a).
"OFAC" means the Office of Foreign Assets Control of the United States Department of the Treasury.
"Other Taxes" has the meaning specified in Section 2.12(b).
"Participant Register" has the meaning specified in Section 8 .07 (e).
"Permitted Liens" means such of the following as to which no enforcement, collection, execution, xxxx or foreclosure proceeding shall have been commenced: (a) Liens for taxes, assessments and govemmental charges or levies to the extent not required to be paid under Section 5.01(1); (b) Liens imposed by law, such as materialmen's, mechanics', carriers', workmen's and repainnen'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 60 days; (c) pledges or deposits to secure obligations under workers' compensation laws or similar legislation or to secure public or statut01Y obligations; and (d) easements, rights of way and other encumbrances on title to real property that do not render title to the property encumbered thereby unmarketable or materially adversely affect the use of such property for its present purposes.
"Person" means an individual, partnership, corporation (including a business trust), joint stock company, trust, unincorporated association, joint ventnre, limited
9 MIAMI 980072 (lK)
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,p.9 ~ 't~ liability company or other entity, or a government or any political sUbdiv"1JJlbr \'f~--n <" agency thereof. . ~ --f~~~\\\~\l ~ 0
"Pi'ocesf Ag~ent" has the meaning specified in Section 8 .11 (b), 0 V~\ib:-- .; !j 0,,"
"Project Financing" means any financing (but not a refinancing) 0 ~"(' 0" A'Jro"'''' .. Q. ()~()/q. f'~;' q
acquisition, construction or development of any properties in connection with· DO c \,. ',c project if the Person or Persons providing such financing expressly agree to look t~""-"= the properties financed and the revenues to be generated by the operation of, or loss of or damage to, such properties as the principal source of repayment for the moneys advanced (with limited recourse, if any, to the Borrower) and have been provided with a feasibility study prepared by competent independent experts on the basis of which it was reasonable to conclude that such project would generate sufficient foreign currency income to repay substantially all of the principal of and interest on all External Indebtedness incurred in connection with such project.
"Reference Xxxxx" means Banco Bilbao Vizcaya Argentaria, S.A., Citibank, N.A. and Bank of America, N.A.
"Register" has the meaning specified in Section 8.07(c).
"Regulation D" means Regulation D ofthe Board of Governors ofthe Federal Reserve System, as in effect from time to time.
"Representatives" means, as to any Person, such Person's directors, officers, partners, shareholders, employees, representatives, agents, attorneys, auditors and advisors.
"Required Lenders" means, at any time, Xxxxxxx having more than 50% of the sum of (a) the then aggregate unpaid principal amount of the Advances owing to Lenders, and (b) the aggregate unused Nominal Commitments for all Lenders.
"Responsible Officer" means any Person having a power-of-attorney to act on behalf of the Borrower or the Borrower's Director de Finanzas or Subdirector de Finanzas.
"Sanction(s)" means any economic sanction administered or enforced by the US Government (including but not limited to OFAC and the Bureau of Industry and Security of the US Department of Commerce), the UK Government (including but not limited to Her Majesty's Treasury), the Japanese Govenunent (including but not limited to the Ministry of Economy, Trade and Industry of Japan), the United Nations Security Councilor the European Union.
"Subsidiary" of any Person means any corporation, partnership, joint venture, limited liability company, trust or estate of which (or in which) more than 50% of (a) the issued and outstanding capital stock having ordinary voting power to
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§ ,2 ",~:":::',' -~'~r. (\ .~ o __ .w< . .-_·, .. !i'~ \\jU' elect a majority of the Board of Directors of such corporation (irrespective wlle~l\&r\~,\:, \~_,,-.--. 0 at the time capital stock of any other class or classes of such corporation sha or' "~!>:~>" {l y might have voting power upon the occurrence of any contingency), (b) the int esPq 0~~1' the capital or profits ofsu~hlimited liability company, partnership orjoint ven~ (O~o~;'\'rro,~\'t~;../ (c) the benefiCial Illterest III such trust or estate IS at the time drrectly or Illdlrectly ~_~~. . ;/ owned or controlled by such Person, by such Person and one or more of its other --'- Subsidiaries or by one or more of such Person's other Subsidiaries.
"Tangible Assets" means, with respect to any Person, assets of such Person other than (a) Available Assets, (b) gold and (c) Accounts Receivable.
"Taxes" has the meaning specified in Section 2.l2(a).
"Termination Date" means the earlier of the date that occurs on the fifth anniversary of the date hereof and the date of termination in whole of the Commitments pursuant to Section 2.04 or 6.01.
"Transaction Documents" means this Agreement, the Notes and the Fee Letters.
"Voting Stock" means capital stock issued by a corporation, or equivalent interests in any other Person, the holders of which are ordinarily, in the absence of contingencies, entitled to vote for the election of directors (or persons performing similar functions) of such Person, even if the right so to vote has been suspended by the happening of such a contingency.
Section 1.02 Other Definitional Provisions.
(a) The terms "including" and "include" are not limiting and mean "including but not limited to" and "include but are not limited to".
(b) The words "hereof', "herein" and "hereunder" and words of similar import when used in this Agreement refer to this Agreement as a whole and not to any particular provision of this Agreement, and Section, paragraph, Schedule and Exhibit references are to this Agreement unless otherwise specified.
(c) The meanings given to terms defined herein are equally applicable to both the singular and plural forms of such terms.
(d) In this Agreement, in the computation of periods of time from a specified date to a later specified date, the word "from" means "from and including" and the words "to" and "until" each mean "to but excluding". Periods of days referred to in this Agreement shall be counted in calendar days unless Business Days are expressly prescribed.
11 MIAMI 980072 (2K)
(e) The captions and headings of this Agreement are for convenience reference only and shall not affect the interpretation of this Agreement.
(f) The word "will" shall be construed to have the same meaning and effect as the word "shall."
(g) Unless the context requires otherwise (i) any definition of or reference to any agreement, instrument or other docnment herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein), (ii) any reference herein to any Person shall be construed to include such Person's successors and assigns, (iii) any reference to any law or regulation herein shall, unless otherwise specified, refer to such law or regulation as amended, modified or supplemented from time to time, and (iv) the words "asset" and "property" shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.
Section 1.03 Accounting Terms and Determinations. Unless otherwise specified herein, all accounting tenns used herein shall be interpreted, all accounting detenninations hereunder shall be made, and all financial statements required to be delivered hereunder shall be prepared in accordance with, and all references in this Agreement to generally accepted accounting principles shall refer to the International Financial Reporting Standards as adopted by the International Accounting Standards Board as in effect fi-om time to time ("IFRS"), applied on a basis consistent (except for changes concurred in by the Borrower's independent accountants) with the most recent audited fmancial statements of the Borrower delivered to the Administrative Agent prior to the Effective Date.
ARTICLE 2 AMOUNTS AND TERMS OF THE ADVANCES
Section 2.01 The Advances.
(a) Each Lender severally agrees, on the terms and conditions hereinafter set forth, to make Advances in Dollars to the Borrower from time to time on any Business Day during the period from the date hereof until the Tennination Date in an aggregate amount not to exceed at any time outstanding the amount set forth opposite such Xxxxxx'x name on Schedule 2 hereto or, if such Lender has entered into any Assignment and Acceptance, set forth for such Lender in the Register maintained by the Administrative Agent pursuant to Xxxxxxx X.00(x), as such amount may be reduced or tenninated pursuant to Section 2.04 or 6.01 (for each Lender, its "Commitment"); provided that, from and after the date hereof and until the commitments under that certain US$2,000 million credit facility of the Borrower dated as of December 1, 2010 (the "Existing Credit Facility") are tenninated and the loans thereunder are paid in full, the Commitment shall be reduced by an amount
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equal to the sum of (i) the aggregate amount of unpaid principal outstanding unde OZ:~~~~~t~~ p§ such Lender's loans under the Existing Credit Facility, and (ii) such Lender's () (J) unutilized commitments under the Existing Credit Facility, except, however, that th o,c ~'''' '1,~V,~,qO reductioll of the Cbmmitments provided herein shall not apply to the extent that the proceeds of any Advance shall be irrevocably instructed to be applied to pay the loans under the Existing Credit Facility and the Borrower shall have provided to the Administrative Agent (x) evidence of the issuance of irrevocable notices of prepayment with respect to such loans, together with any other evidence, reasonably satisfactory to the Administrative Agent and each ofthe Lenders, that the Borrower has taken all actions required under the Existing Credit Facility to terminate in their entirety the commitments under the Existing Credit Facility to the extent of any such payment (including the repayment in full of all interest and fees then due), and (y) an irrevocable instruction to apply the proceeds of the Advances toward the repayment in full of the principal in respect of the loans outstanding under the Existing Credit Facility. Each Borrowing shall be in an aggregate amount of at least US$40,000,000 or an integral multiple ofUS$1 ,000,000 in excess thereof and shall consist of Advances made on the same day by the Lenders ratably according to their respective Commitments. Within the limits of each Lender's Commitment, the Borrower may borrow under this Section 2.01(a), prepay pursuant to Section 2.08(a) and reborrow under this Section 2.01(a).
(b) Notwithstanding Section 2.01(a), the Borrower shall cause the aggregate outstanding principal amount of the Advances to be zero for each of the last five consecutive Business Days of each calendar year ending after the Effective Date and each of the first seven consecutive Business Days of each calendar year commencing after the Effective Date (each such annual period, a "Clean Up Period"). Subject to the terms and conditions hereunder, the entire aggregate Commitment shall be available for Borrowing on the first Business Day immediately following completion of each such Clean Up Period.
Section 2.02 Making the Advances.
(a) Each Borrowing shall be made on notice, given not later than 12:00 P.M. (New York City time) on the third Business Day prior to the date of the proposed Borrowing by the Borrower to the Administrative Agent, which shall give to each Lender prompt notice thereof by email. Each such notice of a Borrowing (a "Notice of Borrowing") shall be in writing, in substantially the form of Exhibit B hereto, specifying therein the requested (i) date of such Borrowing, (ii) aggregate amount of such Borrowing, and (iii) initialluterest Period for each such Borrowing. Each Lender shall, before 12:00 P.M. (New York City time) on the date of such Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at the Administrative Agent's Account, in immediately available funds, such Xxxxxx'x ratable portion of such Borrowing. Immediately upon the Administrative Agent's receipt of such funds and upon fulfillment of the conditions set forth in Section 3.02, the Administrative Agent will make such funds available to the Borrower at its account number 00000000 at Citibank, N.A. at 111
13 MIAMI 980072 (2K)
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Wall Street, New York, New York, ABA 000000000 on or before the date of su Borrowing.
(b) Each Notice of Borrowing shall be irrevocable and binding on the Borrower. The Borrower shall indemnify each Lender against any loss, cost or expense (other than consequential damages and loss of anticipated profits) incurred by such Lender as a result of any failure to fulfill, on or before the date specified in such Notice of Borrowing, the conditions set forth in Section 3.02, including any loss, cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the Advance to be made by such Lender as part of such Borrowing when such Advance, as a result of such failure, is not made on such date; provided that the foregoing indemnity will not, as to any such Lender, apply to losses, costs or expenses to the extent resulting from the willful misconduct, bad faith or gross negligence of such Lender, as found in a final, non-appealable judgment by a court of competent jurisdiction.
(c) Each Lender may request that the Advances made by it hereunder be evidenced by a Note, payable to the order of the respective Lender. The Borrower shall deliver such Note, (i) if such request is received on or prior to the date hereof, within five (5) Business Days after receipt of a request therefor and (ii) if received after the date hereof, within ten (10) Business Days after receipt of a request tilerefor.
(d) Unless the Administrative Agent shall have received notice from a Lender prior to the date of any Borrowing that such Lender will not make available to the Administrative Agent such Xxxxxx'x ratable portion of such Borrowing, the Administrative Agent may assume that such Lender has made such portion available to the Administrative Agent on the date of such Borrowing in accordance with Section 2.02(a) and, in reliance upon such assumption, the Administrative Agent may, but shall not be obligated to, make available to the Borrower on such date a corresponding amount. If and to tile extent that such Lender shall not have so made such ratable portion available to the Administrative Agent, such Lender and the Borrower (to the extent the Borrower has received such funds from the Administrative Agent) severally agree to repay to the Administrative Agent forthwith on demand such corresponding alllount together with interest thereon, for each day from the date such alllount is made available to the Borrower until the date such alllount is repaid to the Administrative Agent, at, in the case of the Borrower, if applicable, the interest rate applicable at the time to Advances comprising such Borrowing and, in the case of such Lender, the Federal Funds Rate. If such Lender shall repay to the Administrative Agent such cOiTesponding amount, such alllount so repaid shall constitute such Lender's Advance as part of such Borrowing for purposes of this Agreement.
(e) The failure of any Lender to make the Advance to be made by it as part of any Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its Advance on the date of such Borrowing, but no Lender shall be
14 MIAMI 980072 (2K)
(f) There may not be more than five separate Borrowings outstanding at any time.
Section 2.03 Fees.
(a) Commitment Fee. The Borrower agrees to pay to the Administrative Agent for the account of each Lender a facility fee on the average daily unutilized portion of such Xxxxxx'x Nominal Commitment during each applicable period from the date hereof, in the case of each of the Lenders specified on Schedule I hereto, and from the effective date specified in the Assignment and Acceptance pursuant to which it became a Lender, in the case of each other Lender, until the Termination Date at a rate per annum equal to 0.35%, payable in arrears quarterly on the last day of each March, June, September and December, commencing on September 30, 2013, and on the Termination Date.
(b) Other Fees. The Borrower agrees to pay all accrued and unpaid fees of the Lending Parties set forth in the Fee Letters at the times specified therein.
Section 2.04 Termination or Reduction of the Commitments.
(a) Optional Termination or Reduction. The Borrower shall have the right, upon at least three Business Days' notice to the Administrative Agent, to tenninate in whole or permanently reduce ratably in part the unused portions of the respective Commitments of the Lenders, provided that each partial reduction shall be in the aggregate amount ofUS$IO,OOO,OOO or an integral multiple ofUS$I,OOO,OOO in excess thereof.
(b) Mandatory Termination. The Commitment of each Lender and the obligation of each Lender to make Advances shall be automatically terminated if a prepayment is required under Section 2.08(b)(ii).
Section 2.05 Repayment. Subject to Section 2.01(b), the Borrower shall repay to the Administrative Agent for the ratable account of the Lenders on the Termination Date the aggregate principal amount of the Advances then outstanding.
Section 2.06 Interest.
(a) Scheduled Interest. The Borrower shall pay interest on the unpaid principal amount of each Advance owing to each Lender from the date of such Advance until such principal amount shall be paid in full, at a rate per armum equal at all times during each Interest Period for such Advance to the sum of (x) the LIBO Rate for such Interest Period for such Advance plus (y) the Applicable Margin,
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payable in arrears on the last day of such Interest Period and, if such Interest P~~.: Q5i .:'~'-'-""-"---'-'-" 0 has a duration of more than three months, on each day that occurs during SUCh\~,e,c;~ rl""l
,)., () G" 5</ Interest Period every three months from the fIrst day of such Interest Period and 0 ,,'0; ~ ;;jl'~"~;;;"':); the date such Advance shall be paid in full.' ""~:;'!..;::::::;"
(b) Default Interest. Any overdue principal of any Advance and, to the fullest extent permitted by law, any overdue interest on any Advance (or interest on interest accruing pursuant to this Section 2.06(b» shall bear interest, payable on demand, for each day from and including the date payment thereof was due (in each case, whether at stated maturity, upon acceleration or otherwise) to but excluding the date of actual payment in full (after as well as before judgment to the fullest extent permitted'by law), at a rate per annwn equal to 1.00% per annum plus the rate per annum required to be paid on the applicable Advance pursuant to Section 2.06(a).
Section 2.07 Interest Rate Determination. The Administrative Agent shall give prompt notice to the Borrower and the Lenders of the applicable interest rate determined by the Administrative Agent for purposes of Section 2.06(a) and 2.09(c). In the event that, (a) on any date on which the LIBO Rate is to be detennined for an Interest Period, the Administrative Agent shall determine that the LIBO Rate does not appear in the relevant screen specifIed in the defInition thereof and that deposits in Dollars are not being offered to the Reference Xxxxx in the London interbank market for such Iuterest Period, or (b) Lenders owed at least 25% of the then aggregate unpaid principal amount of the Advances (or, if no such principal amount is then outstanding, Lenders having at least 25% of the Nominal Commitments) notify the Administrative Agent on or before the fIrst day of an Interest Period that the LIBO Rate for such Interest Period will not adequately reflect the cost to such Lenders of making, funding, or maintaining their Advances for such Interest Period, then in either case, the Administrative Agent shall give notice thereof to the Borrower and the Lenders, whereupon, until the Administrative Agent notifIes the Borrower that the circumstances giving rise to such suspension no longer exist, the Advances shall bear interest during such Interest Period at a rate ill<! xxxxx equal to the snm of the Cost of Funds Rate in effect from time to time plus the Applicable Margin.
Section 2.08 Prepayments,
(a) Optional. The Borrower may, upon at least four Bnsiness Days' prior notice to the Administrative Agent, which notice shall state the proposed date and aggregate principal amount of the prepayment, and if such notice is given the Borrower shall, prepay the outstanding principal amount ofthe Advances comprising part of the same Borrowing in whole or ratably in part, together with accrued interest to the date of snch prepayment on the principal amount prepaid; provided, however, that (x) each partial prepayment shall be in an aggregate principal amount of US$10,OOO,000 or an integral multiple ofUS$l,OOO,OOO in excess thereof and (y) the Borrower shall be obligated to reimbnrse the Lenders in respect thereofpnrsuant to Section 8.04( c) if the date of such prepayment is not the last day of an Interest Period.
16 MIAMI 9800n (2K)
(ii) If at any time (A) the Borrower ceases to be a decentralized entity ofthe Federal Govermnent (organismo descentralizado de fa Administraci6n Publica Federal) of Mexico and the Borrower is not an entity majority owned by Mexico, or (B) the Borrower fails to generate and distribute at least 60% of the electricity that is generated and distributed within the regions of Mexico served by the Borrower on the Effective Date, then the Borrower xxxX immediately prepay the outstanding principal amount of the Advances outstanding in whole.
(iii) The Borrower xxxX prepay the aggregate outstanding principal amount of the Advances at such times as are necessary to comply with Section 2.01(b).
(iv) AH prepayments under this Section 2.08(b) xxxX be made together with (A) accrued interest to the date of such prepayment on the principal amount of the Advances outstanding and (B) all other amounts due under Section 8.04.
Section 2.09 Increased Costs.
(a) If, on or after the date hereof, due to either (i) the introduction of or any change in or in the interpretation of any law or regulation or (ii) the compliance with any guideline or request from any Govermnental Authority, there shall be any increase in the cost to any Lender of agreeing to make or making, funding or maintaining the Advances, then the Borrower shall from time to time, upon demand by such Lender (with a copy of such demand to the Administrative Agent), pay to the Administrative Agent for the account of such Lender the reasonable and documented additional amounts sufficient to compensate such Lender for such increased cost. A certificate as to the amount of such increased cost, submitted to the Borrower and the Administrative Agent by such Lender, shall be conclusive and binding for all purposes, absent manifest error.
(b) If any Lender determines that compliance with any law or regulation or any guideline or request from any Governmental Authority (whether or not having the force of law) made after the date hereof affects or would affect the amount of capital required or expected to be maintained by such Lender or any corporation controlling such Lender and that the amount of such capital is increased by or based upon the existence of such Xxxxxx'x commitment to lend hereunder, then, upon demand by such Lender (with a copy of such demand to the Administrative Agent),
17 MIAMI 980072 (2K)
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the Borrower ~xxxx pay tothe Administrative Agent for the account of sa :~, d:~,~i;J~I~I~J\UD.~, from bme to lime as speclfied by such Lender, addlbonal amounts sufficl' ~c:to, § ~? compensate such Lender or such corporation for the reasonable and docum tit~:d,', p' ,{ increased co'sts of said Lender or such corporation of agreeing to malce or m~!i:liil~' "rrDP\'i;',;~,;'" any Advances hereunder, A certificate as to such amounts submitted to the Boit'o\y~{,':n;:"~.";:::-" and the Administrative Agent by such Lender shall be conclusive and binding for all purposes, absent manifest error.
(c) The Borrower shall pay to each Lender, so long as such Lender shall be required under regulations of the Board of Governors of the Federal Reserve System to maintain reserves with respect to liabilities or assets consisting of or including Eurocurrency Liabilities, additional interest on the unpaid principal amount of each Advance of such Lender, from the date of such Advance until such principal amount is paid in full, at an interest rate per annum equal at all times to the remainder obtained by subtracting (i) the LIBO Rate for such Interest Period for such Advance from (ii) the rate obtained by dividing such LIBO Rate by a percentage equal to 100% minus the LIBO Rate Reserve Percentage of such Lender for such Interest Period, payable on each date on which interest is payable on such Advance, Such additional interest shall be determined by such Lender and notified to the Borrower through the Administrative Agent.
(d) Each Lender hereby agrees that it will use its reasonable efforts (including a reasonable effort to change its Lending Office for any obligations affected by such event) to avoid or minimize the consequences of the event giving rise to the operation of clause (a) or (b) above; provided, however, that such action shall not, in the good faith judgment of such Lender, be illegal or materially disadvantageous to such Lender or violate internal policies of such Lender.
(e) Notwithstanding anything to the contrary herein, Section2,09(a) through (d) shall not apply to any increased costs resulting from (i) any and all taxes (including any levies, imposts, deductions, charges or withholdings), (ii) Other Taxes (but ignoring the reference to Mexico in the definition of such term) or (iii) any changes in the basis of taxation of overall net income or overall gross income,
(f) For the avoidance of doubt, (x) all requests, rules, guidelines, requirements and directives promUlgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or by United States or foreign regulatory authorities in each case pursuant to Basel III, and (y) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines, requirements and directives thereunder or issued in connection therewith or in implementation thereof and, in each case, any compliance by a Lender with any request or directive relating thereto shall, for purposes of this Section 2,09 and Section 2,10, be deemed to be a change in law occurring after the date hereof, regardless of the date enacted, adopted or issued, Notwithstanding the foregoing, any Lender seeking compensation for costs imposed pursuant to Basel III or the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act shall only be
18 MlAMl9800n (2K)
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entitled to seek compensation for such costs if it is such Xxxxxx'x general li.§y~rl;lS~fR· A.illl ~ practice to demand compensation from borrowers that are reasonably simi . to tlie-'-'- (Q P
,j o. 0 .::) Borrower and are subject to reasonably similar provisions in their credit ag ~e)1lts. 0" iii';
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(a) Notwithstanding any other provision of this Agreement, if any Lender shall notify the Administrative Agent that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or any Governmental Authority asserts that it is unlawful, for any Lender to perform its obligations hereunder to make any Advance or to fund or maintain any Advance hereunder, the obligation of such Lender to make any Advances hereunder shall be suspended until the Administrative Agent shall notify the Borrower and the Lenders that the circumstances causing such suspension no longer exist. If any Lender shall determine that it may not lawfully continue to fund or maintain any Advance to maturity and shall so specify by notice to the Administrative Agent, the Borrower shall upon its receipt of written notice from the Administrative Agent, prepay in full the then outstanding principal amount of such Advance of such Lender together with accrued interest thereon either on the last day of the Interest Period then in effect or, if earlier, on the date on which such Lender may no longer lawfully continue to maintain such Advance.
(b) Before giving any notice or demand on the Borrower through the Administrative Agent under Section 2.1 O(a), the affected Lender shall designate a different Lending Office with respect to its Advances and Commitment if such designation will avoid the need for giving such notice or making such demand and will not, in the sole judgment of such Lender, be illegal or materially disadvantageous to such Lender or violate internal policies of such Lender.
Section 2.11 Payments and Computations.
(a) The Borrower shall make each payment hereunder and under the Notes, irrespective of any right of counterclaim or set-off (other than pursuant to Section2.12(n)(ii)), not later than 11:00 AM. (New York City time) on the day when due in Dollars to the Administrative Agent at the Administrative Agent's Account in same day funds. The Administrative Agent will promptly thereafter cause to be distributed like funds relating to the payment of principal or interest or facility fees ratably (other than amounts payable pursuant to Section 2.12 or 8.04(c)) to the Lenders for the account of their respective Lending Offices, and like funds relating to the payment of any other fees or any other amount payable to any Lender to such Lender for the account of its Lending Office, in each case to be applied in accordance with the terms of this Agreement. Upon its acceptance of an Assignment and Acceptance and recording of the information contained therein in the Register pursuant to Section 8.07(d), from and after the later of the effective date specified in such Assignment and Acceptance and the date of such acceptance and recording, the Administrative Agent shall make all payments hereunder and under the Notes in
19 MIAMI 980072 (2K)
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respect of the interest assigned thereby to the Lender assignee thereunder, an parties to such Assignment and Acceptance shall make all appropriate adjus such payments for periods prior to such effective date andlor the date of such acceptance and recordillg directly between themselves,
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(b) All computations of interest and of facility fees shall be made by the ~ Administrative Agent on the basis of a year of 360 days, in each case for the actual number of days (including the first day but excluding the last day) occurring in the period for which such interest or facility fees are payable, Each determination by the Administrative Agent of an interest rate hereunder shall be conclusive and binding for all purposes, absent manifest error,
(c) Whenever any payment hereunder or under the Notes shall be stated to be due on a day other tllan a Business Day, such payment shall be made on the next succeeding Business Day, and such extension oftinle shall in such case be included in the computation of payment of interest or facility fee, as the case may be; provided, however, that, if such extension would cause any payment of interest on or principal of any Advance to be made in the next following calendar month, such payment shall be made on the next preceding Business Day,
(d) Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to tl1e Lenders hereunder that the Borrower will not make such payment in full, tl1e Administrative Agent may assume that the Bon'ower has made such payment in full to the Administrative Agent' on such date and, in reliance upon such assumption, the Administrative Agent may, but shall not be obligated to, cause to be distributed to each Lender on such due date an amount equal to the amount then due such Lender. If and to the extent the Borrower shall not have so made such payment in full to the Administrative Agent, each Lender shall repay to the Administrative Agent forthwith on demand such anlOunt distributed to such Lender together with interest thereon, for each day from the date such amount is distributed to such Lender until the date such Lender repays such amount to the Administrative Agent, at the Federal Funds Rate,
Section 2,12 Taxes,
(a) (i) Any and all payments by the Borrower or on tl1e behalf of the Borrower hereunder or under any other Transaction Document shall be made, except as required by law, in accordance witl1 Section 2.11 free and clear of and without deduction for any and all present or future taxes (including any levies, inlposts, deductions, charges or witl1holdings) and all liabilities with respect thereto, excluding, in the case of
MIAMI 9800n (2K)
(A) each Lender and the Administrative Agent, net income taxes (including franchise taxes imposed on net income) that are imposed (x) by a jurisdiction other tl1an Mexico or, (y) where snch Lender or the Administrative Agent, as the case may be, is organized
20
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J ~nffi~,~§j~ ° under the laws of Mexico or any political subdivision thereof~ has~·-- !:J !,J its principal place of business in Mexico or any political subdi isno ,O"'",Cl!" thereof, by Mexico or such political subdivision thereof, (',,'0> D \1-~0" q
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(B) each Lender, net income taxes (including franchise taxes imposed on net income) that are imposed on such Lender by the state or foreign jurisdiction of such Xxxxxx'x Lending Office or any political subdivision thereof,
(C) the Administrative Agent, where the Administrative Agent has a fixed place of business within Mexico, income taxes imposed by Mexico other than taxes that would have been imposed had there not been such a fixed place of business,
(D) each Lender and the Administrative Agent, any taxes, levies, imposts, duties, deductions, or other charges or withholdings of any nature imposed by reason of any present or future connection between the Lender or Administrative Agent, as the case may be, and Mexico or any political subdivision thereof other than as a result of the transactions contemplated hereunder or any other Transaction Document and receiving payments or enforcement of any rights tbereunder,
(E) each Lender and the Administrative Agent, taxes levies, imposts, duties, deductions, or other charges or withholdings of any nature imposed by any jurisdiction outside of Mexico other than any such taxes that arise as a result of Borrower activities in a jurisdiction other than Mexico,
(F) each Lender and the Administrative Agent, any tax, xxxx, impost, deduction or other charges or withholdings imposed by reason of such Xxxxxx'x or the Administrative Agent's failure to comply with Sections 2.12(h) or (k) (without regard to whether the Lender's noncompliance with Section 2.12(k) was waived by the Borrower) to the extent such amount exceeds the amount of such taxes, levies, imposts, deductions or other charges or withholdings that otherwise would have been imposed, and
(G) each Lender and the Administrative Agent, any U.S. federal withholding Taxes imposed underFATCA
All such nonexcluded taxes and liabilities set forth in this Section 2, 12(a)(i) in respect of payments hereunder or under any other Transaction Documents are referred to colJectively as "Taxes."
21 MlAMI9800n (2K)
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(ii) If the Borrower shall be required by law to deduct an Taxl1.J:.'!.t,.~."..=-·-", [] from or in respect of any sum payable hereunder or under any other :) () l:' :; Transaction Document to any Lender or the Administrative Agent, (x) ~\'<: o~ B\'I.!~!~~ sum payable shall be Increased as may be necessary so that after makmg ; 0., :.':~~., ';;d required deductions (including deductions applicable to additional sums ~~ payable under this Section 2.12) such Lender or the Administrative Agent, as the case may be, receives an amount equal to the sum it would have received had no such deductions been made, (y) the Borrower shall make such deductions and (z) the Borrower shall pay the full amount deducted to the relevant taxation authority or other Govermnental Authority in accordance with applicable law.
(b) The Borrower shall pay any present or future stamp, documentary, excise, property or similar taxes, charges or levies imposed by Mexico that arise from any payment made hereunder or under any other Transaction Document or from the execution, delivery or registration of, or performance under, enforcement, or otherwise with respect to, this Agreement or any other Transaction Document (collectively, "Other Taxes").
(c) If any Taxes payable by deduction or withholding with respect to any payment hereunder or any other Transaction Document are directly asserted against the Administrative Agent or any Lender, the Administrative Agent or such Lender, as the case may be, may pay such Taxes and the Borrower will promptly pay such additional amounts (including any penalties, interest or expenses) as are necessary in order that the amount retained by such Person net of Taxes (including any Taxes on such additional amount) shall equal the amount such Person would have retained had such Taxes not been asserted.
(d) The Borrower shall indemnify each Lender and the Administrative Agent for the full amount of Taxes and Other Taxes, including on amounts payable under this Section 2.12, imposed on or paid by such Lender or the Administrative Agent, as the case may be, and any liability (including penalties, additions to Tax, interest and expenses) arising therefrom or with respect thereto. This indemnification shall be made within 30 days from the date such Lender or the Administrative Agent, as the case may be, makes written demand therefor.
(e) Within 30 days after the date of any payment of Taxes by or on behalf of the Borrower, the Borrower shall furnish or cause to be furnished to the Administrative Agent, at its address referred to in Section 8.02 hereof, the original receipt for payment thereof or a certified copy of such receipt or any other evidence of payment satisfactory to the Administrative Agent.
(I) Any Lender claiming any additional amounts payable pursuant to this Section 2.12 agrees to use reasonable efforts (consistent with its internal policy and legal and regulatory restrictions) to change the jurisdiction of its Lending Office ifthe making of such a change would avoid the need for, or reduce the amount of, any such
22 MIAMI 9800n (2K)
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additional amounts that may thereafter accrue and would not, in the reaso big BLGJSfHADD ~ judgment of such Lender, be otherwise disadvantageous to such Lender. 0 ... --
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(g) Upon the reasonable request ofthe Borrower, each Lender a . ~)" (;"o.§/ . Administrative Agent agrees to use its reasonable efforts to cooperate with the ~ ~~r~~~;6<?o ~ . Borrower in obtaining a refund of any Taxes or Other Taxes which the Borrower ~:- reasonably believes were not correctly or legally imposed and for which the Borrower has actually paid Taxes or Other Taxes or has indemnified such Lender or the Administrative Agent, as the case may be, under this Section 2.12. The Borrower agrees to reimburse each Lender and the Admirdstrative Agent for its reasonable out- of-pocket costs and expenses (including reasonable legal fees, including the allocated cost of counsel) incurred in assisting the Borrower in obtaining such refund, immediately upon presentation of an invoice therefor.
(h) Each Lender shall, from time to time upon the reasonable written request of the Borrower or the Administrative Agent (to the extent such Lender is lawfully able to do so), promptly furnish to the Borrower or the Administrative Agent such forms, documents or other information (which shall be accurate and complete) as may be required to establish any available exemption from, or reduction in the amount of, otherwise applicable Taxes or Other Taxes including evidence that such Lender is eligible for benefits of a tax treaty between Mexico and the country in which the Lender is resident for tax purposes. The Borrower and the Administrative Agent shall be entitled to rely upon the accuracy of any such forms, documents or other information furnished to them by any such Person.
(i) If a payment made to a Lender under any Transaction Document would be subject to U.S. federal withholding tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements ofFATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Xxxxxx'x obligations under F ATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this paragraph (i), "FATCA" shall include any amendments made to FATCA after the date of this Agreement.
(j) Each Lender agrees that if any form, document or certification it previously delivered pursuant to its obligations set forth in Sections 2.12(h) and 2.12(i) hereto expires or becomes invalid, obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so.
23 MiAMI 980072 (2K)
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(k) Unless waived by the Borrower in writing, each Lender (othe hail} "ijf\': 'IS1MM ~ Mexican Bank or Export Credit Agency) hereby (i) represents that it is a resi t fo1l11L--._··-
(I) 0 tax purposes, or a branch or agency of a financial institution that is a resident ~alii, ,," y purposes, of a countly with which Mexico has entered into a treaty that is in ef cf~r 0i' ~0'S,0'" h 'd fd bl . (")' h () h .. . d DIn ACJTOR\1. 0 <' t e avO! ance 0 ou e taxatIOn, 11 elt er x represents t at It IS reglstere as a c 'c occ(
Foreign Financial Institution or (y) agrees to register as a Foreign Financial Institution prior to the day the Borrower makes its first payment (including of any fees) under this Agreement, (iii) agrees to use all reasonable efforts to be registered until the Termination Date (so long as such registration is necessary for such Lender to be eligible for a reduced withholding tax rate on Mexican sourced interest) and (iv) if such Lender is acting through a branch, agency or intennediary of its head office, represents that the beneficial owner of the payments to be made to it under this Agreement is a Foreign Financial Institntion.
(1) Upon the request of a Lender, the Borrower hereby agrees to use, at such Xxxxxx'x cost, reasonable efforts to assist such Lender in obtaining and/or maintaining the registration referred to in Section 2.l2(k); provided that the Borrower's agreement to use reasonable efforts to assist any Lender shall under no circumstances relieve such Lender of its obligations under Section 2.12(k).
(m) If any Lender (other than a Mexican Bank, an Export Credit Agency or a Lender whose obligations under Section 2.12(k) have been waived by the Borrower in writing) does not register or does not have residency as provided in Section 2. 12(k) or does not maintain such registration or residency or fails to file any certificate or document or to furnish any information requested by the Borrower pursuant to any applicable treaty, law, rule or regulation necessary to reduce the amounts described in clause (x) of Section 2.12(a)(ii) payable by the Borrower, the Borrower shall have the right, to be exercised at its sole discretion, to seek a substitute lender or lenders (which may be one or more of the Lenders) to assume the Commitluent of such Lender and to require such Lender to assign its Commitment and outstanding Advances to such substitute lender or lenders; provided that such Lender shall have received payment of an amount equal to the outstanding principal of its Advances, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case of all other amounts).
(n) (i) Each Lender (other than a Mexican Bank or Export Credit Agency), from time to time, but at least 10 Business Days before the next succeeding date upon which a payment is due hereunder, will notify the Borrower if such Xxxxxx fails to maintain the registration or residency requirements as provided in Section 2.l2(k).
(ii) If a Lender (other than a Mexican Bank or Export Credit Agency) does not notifY the Borrower pursuant to Section 2.12(n)(i), and any amounts described in this Section 2.12 in respect of any portion of taxes (including any levies, imposts, deductions, charges or withholdings) or Other
24 MIA.Ml980072 (2K)
---~,..,. ... -)~E.\)\TO r.~Ua Taxes (excluding any fees, interests, penalties or costs as a res actions or inactions of the Borrower) that would not have been for the failure of such Lender to maintain the registration or re .
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requirements as provided in Section 2.12(k) ("Excess Amount are -, .• -' ,,' subsequently due and payable or assessed against the Borrower 1J !:\.eo •• , ",/" ii Ministry of Finance, such Xxxxxx agrees that the Borrower may de ~~c~:;~o~ /)' Excess Amount to the extent paid by the Borrower to the Ministry of ~ from subsequent interest payments made to or for the account of such Lender; provided, however, that in order for the Borrower to deduct such Excess Amount from such payments to such Lender, the Borrower shall furnish such Lender at its address referred to in Section 8.02 within 5 Business Days of the BOlTower's payment of such Excess Amount to the Ministry of Finance, (A) notice in an itemized format indicating: (I) the amount to be deducted against such Xxxxxx'x next succeeding interest payment, and to the extent such amount exceeds the amount of such Xxxxxx'x next succeeding interest payment, the Borrower may deduct such Excess Amount from such Lender's following succeeding interest payment, until such Excess Amount to be deducted by the Borrower from such Xxxxxx'x interest payment equals zero and (2) the composition of the Excess Amounts, calculated in good faith by the Borrower, being deducted by the Borrower from such Xxxxxx'x interest payment, including the amount of any additional withholding taxes due by such Lender and, if applicable, the amount of any fees, interests, penalties or costs assessed by the Ministry of Finance and paid by the Borrower, (B) a certified copy ofthe assessment of the relevant Excess Amount by the Ministry of Finance on the Borrower, if applicable, or other evidence of the Borrower's obligation to collect such Excess Amount; and (C) the receipt, or any other evidence of payment satisfactory to such Lender, evidencing payment of the Excess Amount by the Borrower thereof. Notwithstanding the foregoing, if any Lender disputes the amount of Excess Amounts deducted or to be deducted by the Borrower against any interest payments to such Lender under this Section 2.12(n), such Lender may deliver within 5 Business Days of its receipt of the notice by the Borrower, a letter of explanation specifying its reasons for its disagreement with the Excess Amounts assessed. To the extent that such Xxxxxx'x letter of explanation identifies an error in the calculation by the Borrower of any Excess Amounts deducted against such interest payments made to such Xxxxxx and the Borrower agrees with such calculation, the Borrower hereby agrees to reimburse such amounts.
Section 2.13 Sharing oj Payments, Etc. Nothing in this Agreement shall be construed as an agreement by the Borrower to grant to any Lender any right of set- off, banker's lien or counterclaim other than those rights granted to such Lender by the applicableJaw; provided, however, that nothing in this Agreement shall be construed as to deny any right of any Lender to exercise any right of set-off, banker's lien or counterclaim granted to such Lender by the applicable law. If any Lender shall obtain any payment (whether voluntary or involuntary, and including, without
25 MlAMl9800n (2K)
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CO. W'\J\~~;---Y- ~ [; limitation, through the exercise of any right of set -off under applicable 1 a's ~.'il:./ l f))J referred to in this Section 2.13) on account of the Advances owing to it (0 11)tJ:ui¥ 1l~ Q~ pursuant to Section 2.09, 2.12 or 8.04(c)) in excess of its ratable share of pa ~t§&fi Aln'o~"";' account of the Advances obtained by all the Lenders, such Lender shall forthwi .~- purchase from the other Lenders such participations in the Advances owing to them as shall be necessary to cause such purchasing Lender to share the excess payment ratably with each of them; provided, however, that if all or any portion of such excess payment is thereafter recovered from such purchasing Lender, such purchase from each Lender shall be rescinded and such Lender shall repay to the purchasing Lender the purchase price to the extent of such recovery together with an amount equal to such Xxxxxx'x ratable share (according to the proportion of (i) the amount of such 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. The Borrower agrees that any holder of a participation in any Advance, whether or not acquired pursuant to this Section 2.13 may, to the fullest extent granted by law, exercise any right of set-off, or counterclaim (to the extent referred to in this Section 2.13) and other rights with respect to such participation as fully as if such holder of a participation were a direct creditor of the Borrower in the amount of such participation.
Section 2.14 Use of Proceeds. The proceeds of the Advances shall be available (and the Borrower agrees that it shall use such proceeds) solely (a) to prepay the principal amount outstanding under the Existing Credit Facility and (b) for other general corporate purposes of the Borrower in accordance with the Electricity Law, the CFE Charter and any other law or regulation applicable to CFE.
ARTICLE 3 CONDITIONS TO EFFECTIVENESS AND LENDING
Section 3.01 Conditions Precedent to the initial Borrowing. The obligation of each Lender to make the initial Advance pursuant to Section 2.0J(a) of this Agreement shall become effective on and as of the fIrst date (the "Effective Date") on which each of the following conditions precedent have been satisfIed (or such condition shall have been waived pursuant to Section 8.01):
(a) There shall not have occurred since December 31, 2012, any Material Adverse Change or any change or event that, individually or in the aggregate, is likely to have a Material Adverse Effect.
(b) There shall exist no action, suit, investigation, litigation or proceeding affecting the Borrower or any of its Subsidiaries pending or, to the best knowledge of the Borrower, threatened before any court, govermnental agency or arbitrator as to which there is a reasonable likelihood of a decision which could materially adversely affect the condition (fInancial or otherwise), business or prospects of the Borrower.
26 MIAMI 980072 (2K)
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,.o?pcvns ~i'ill_ \,0 (c) All governmental and third party consents, approvals and regi "',;,'" ... " ~ necessary in connection with the transactions contemplated hereby shall have ee(jflo~'·6fi'\~\i·nfli 11 Ii ~ obtained (without the imposition of any conditions that are not acceptable to n III \) I IlIiU X. Xxxxxxx), including (i) the approval of the Board of Governors (Junta de Gob noj-'--- '" () of the Borrower, in accordance with the Electricity Law and the CFE Charter a· 'l~ l~Y the approval and registration of the Transaction Documents and the Commitmen "1"07: A'n08\0.xX;:~" Letter by the Ministry of Finance in accordance with the General Public Debt Law, 0 4\.:.2.:.,;;:~ .. / and shall remain in effect. -
(d) [Reserved]
( e) On the Effective Date, the following statements shall be true and the Administrative Agent shall have received a celiificate signed by a duly authorized officer of the Borrower, dated the Effective Date, stating that:
(i) the representations and warranties contained in Section 4.01 (x) that are qualified by materiality or Material Adverse Effect are correct, true and complete on and as of the Effective Date, and (y) that are not qualified by materiality or Material Adverse Effect are correct, true and complete in all material respects on and as of the Effective Date, and
(ii) Default.
no event has occurred and is continuing that constitutes a
(1) The Administrative Agent shall have recdved on or before the Effective Date the following, in form and substance reasonably satisfactory to the Administrative Agent:
(i) Counterparts of this Agreement duly executed by each party hereto.
(ii) [Reserved]
(iii) A copy, certified by the Borrower's General Counsel, ofthe approval ofthe Board of Governors (Junta de Gobierno) ofthe Borrower and the approval and registration by the Ministry of Finance relating to the terms and conditions of the transactions contemplated by the Transaction Documents and the Commitment Letter.
(iv) A copy, certified by a Mexican notary public, of the notarized power-of-attorney pursuant to which officers of the Borrower are authorized to sign the Transaction Documents and the other documents to be delivered hereunder.
(v) A copy of the audited consolidated balance sheet and the related consolidated statements of income, changes in equity, and changes in
27 MIAMI 980072 (2K)
financial position of the Borrower and its Subsidiaries for the Fiscal Ye ended on December 31,2012, certified by Xxxxx Xxxxxxx Gossler as t preparation in accordance with IFRS, consistently applied, except as otherwise discussed in the notes to-such flllanciaLstatements~
(vi) An opinion of Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, spe New York counsel for the Borrower, dated as of the Effective Date and substantially in the form of Exhibit D-l hereto.
(vii) An opinion of a senior attorney with the title of Manager of Regional Coordination and of National Offices (Gerente de Coordinacion Regional y de Oficinas Nacionales) in the office of the General Counsel of the Borrower duly authorized by the General Counsel to act on his behalf for the purpose of providing such opinion, dated as of the Effective Date and substantially in the form of Exhibit D-2 hereto.
(viii) An opinion of Xxxxx & Case LLP, special New York counsel for the Administrative Agent, dated as of the Effective Date.
(ix) An opinion of Xxxxx Xxxxxxx, S.C., special Mexican counsel for the Administrative Agent, dated as of the Effective Date.
(x) Written evidence that the Borrower has appointed the Process Agent to act as its agent for service of process pursuant to Section 8 .11 (b) and that the Process Agent has accepted such appointment.
Section 3.02 Conditions Precedent to Each Borrowing. The obligation of each Lender to make an Advance (including the initial Advance) on the occasion of each Borrowing shall be subject to the satisfaction of each of the following conditions precedent:
(a) the Effective Date shall have occurred;
(b) the following statements shall be true on the date of such Borrowing:
(i) the representations and warranties contained in Section 4.01 (x) that are qualified by materiality or Material Adverse Effect are correct, true and complete, and (y) that are not qualified by materiality or Material Adverse Effect are correct, true and complete in all material respects, in each case, on and as of the date of such Borrowing and after giving effect to such Borrowing and to the application of the proceeds therefrom, 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 shall have been correct as of such date), and
28 MIA.Ml9800n (2K)
(ii) no event has occurred and is continuing, or would r such Borrowing or from the application of the proceeds therefrom, t· constitutes a Default;
,;",,";,;:;;,~~~~, " p"#~FF.DITO P0~ </... 0'::. OE(;{J 6~/-·
J' ,()' \if;lW~i\ ~ ,{~ frl'" ,"::;,~\:;~;;:~,..:~~~~.--. ~ ItTIQW-I;:~: \~ t\~\\\ ,. t 1£ WI' ':'11\\ IW~~·
o 't ,. ~~~~.-~"- (f) 8 -"- ~<J:;
----~-------"i!>iQ" ,£ it} - :-~-;:~ u ~ (C) The Administrative Agent shall have received on or before the (~<, DE: MTO"~';d'
respective date of such Borrowing duly executed Notes for the account of each o,,2...:;;..;';;v Xxxxxx, if requested pursuant to Section 2,02(c); and .-
(d) in the case of the initial Borrowing, the Borrower shall have
(i) paid all accrued fees and expenses of the Lending Parties required to be paid hereU11der and then due, including the fees set forth in the Fee Letters and the accrued fees and expenses of counsel to the Lending Parties required to be paid hereU11der and then due, but, in the case of expenses, only to the extent such expenses are notified in writing by the Lenders to the Borrower (through the Administrative Agent) at least one Business Day prior to the date of the initial Borrowing), and
(ii) provided evidence reasonably satisfactory to the Lenders that all outstanding amounts of principal, interest and fees due and payable under or in respect ofthe Existing Credit Facility have been paid by the Borrower (andlor the Borrower shall have irrevocably instructed the payment of such principal amount by deduction from the initial Borrowing) on the date ofthe initial Borrowing, and that all commitments under the Existing Credit Facility shall terminate on the date of the initial Borrowing (or that an irrevocable notice effecting such termination has been issued in accordance with the terms of such facility),
Section 3,03 Determinations Under Section 3,01 and 3,02, For purposes of determining compliance with the conditions specified in Section 3,01 and 3,02, each Lender shall be deemed to have consented to, approved or accepted or to be satisfied with each document or other matter required thereU11der to be consented to or approved by or acceptable or satisfactory to the Lenders unless an officer of the Administrative Agent responsible for the transactions contemplated by this Agreement shall have received notice from such Lender prior to the Effective Date, specifying its objection thereto, The Administrative Agent shall promptly notify the Lenders of the occurrence of the Effective Date,
ARTICLE 4 REPRESENTATIONS AND WARRANTIES
Section 4,01 Representations and Warranties of the Borrower, The Borrower represents and warrants as follows:
(a) Legal Status, The Borrower is a duly established and validly existing decentralized entity of the Federal Government (organismo descentralizado de la
29 MIAMI 980072 (2K)
~,~~ ("fl.f~O!TO Pu
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,'"" ;t "'l'!\\ w".1 {' Administracion Publica FederaT) of Mexico, wholly owned by Mexico,,, i~tt •. ,,":'"·::f1H~~\~ <; existing as an independent legal entity under the laws of Mexico, and is . Iy'£ ifr~,~, IJ \ \\~'!-,- qualified and empowered to own its assets and carry on its business and a ivRi.!iin':!Y'-·:~ tJ Jj
"'" -, ~----'each'jtlfisdieti0n,in,whiGh,it,Q.w.ns,materiaLasse.ts..x xxxxxx on material bu . ~SJ)r ,O"",flJ" activities and the Electricity Law and the CFE Charter are in full force and e "tel' 0, N'TOP\1:;~
0,/",_. \i. ';,'i-."
(b) Power and Authority, The Borrower has full power and authority to execute, deliver and perform any Transaction Document to which it is a party,
(c) Authorization, The execution, delivery and perfonnance by the Borrower of each Transaction Document to which it is a party have been duly authorized by all necessary corporate, legislative, executive, administrative and other govermnental action, including the approval of the Board of Governors (Junta de Gobierno) ofthe Borrower, in accordance with the Electricity Law and the CFE Charter and the approval and registration of the Transaction Documents and the Commitment Letter by the Ministry of Finance in accordance with the General Public Debt Law, and will not (i) conflict with or result in a breach or violation of (A) any provision ofthe Political Constitution (Constitucion Political of Mexico or any provision of the Electricity Law, the CFE Charter or other organizational or governing documents ofthe Borrower, any law, treaty, rule or regulation or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon the Borrower or any of its property or to which the Borrower or any of its property is subject or (B) any order or judgment of any Governmental Authority having jurisdiction over the Borrower or any of its properties or (ii) result in the breach of or cause a default under any Con(radual Obligation to which the Borrower is a party or by which it or any of its assets may be bound,
(d) No Additional Authorization Required, No authorization or approval or other action by, and no notice to or filing with, any Governmental Authority is required for the due execution, delivery and performance by the Borrower of any Transaction Document, except (i) the approval of the Board of Directors (Junta de Gobierno) of the Borrower, (ii) the approval and stamping of the Commitment Letter and the Transaction Documents, evidencing their registration with the Ministry of Finance and (iii) provision for payments of amounts hereunder for periods after Fiscal Year 2013 must be included in the budget of the Borrower for such Fiscal Year to be approved by the Mexican Congress on a yearly basis,
(e) Legal Effect; Direct Obligations; Pari Passu, (i) This Agreement has been duly executed and delivered by the Borrower and constitutes a valid and binding agreement of the Borrower enforceable against the Borrower in accordance with its terms and the Notes when executed and delivered will constitute the legal, valid and binding obligations of the Borrower enforceable against the Borrower in accordance with their respective terms subject to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to
30 MIAMI 980072 (2K)
general principles of equity and, in respect of the enforcement in Mexico, i accordance with Mexican procedural rules.
(iii) The obligations of the Borrower under the Transaction Documents rank and will rank in priority of payment at least pari passu with all other unsecured and unsubordinated External Indebtedness of the Borrower.
(f) No Actions or Proceedings. There is no pending or, to the best of the knowledge of the Borrower, threatened action, suit, investigation, litigation or proceeding, including any Environmental Action, affecting the Borrower before any Governmental Authority or any arbitral tribunal, that (individually or in the aggregate) has a reasonable likelihood of having a Material Adverse Effect or purports to affect the legality, validity or enforceability of Transaction Documents or the consummation of the transactions contemplated hereby.
(g) Material Adverse Change. There is no Material Adverse Change since December 31, 2012.
(h) Nu Immunity. The Borrower is subject to civil and commercia llaw with respect to its obligations under this Agreement and any other Transaction Document and the execution, delivery and performance ofthis Agreement or any other Transaction Document by the Borrower constitute private and commercial acts rather than public or governmental acts. Under the laws of Mexico neither the Borrower nor any of its property has any immunity from jurisdiction of any court or any legal process (whether through service or notice, attachment prior to judgment or attachment in aid of execution or otherwise), except that under Article 4 of the Federal Code of Civil Procedure of Mexico (C6digo Federal de Procedimientos Civiles) and Articles 1,4 and 7 (and related articles) of the Electricity Law (i) attachment prior to judgment and attacl1l1lent in aid of execution may not be ordered by Mexican courts against the property of the Borrower and (ii) the generation, transmission, processing, distribution and supply of electric energy as a public service, as well as the undertaking of any construction, installation and works required for the planning, operation and maintenance of the national electric system, are reserved to the Mexican government, through the Borrower (and to that extent assets related thereto are snbject to immunity).
(i) Investment Company Act. The Borrower is not reqnired to be registered as an investment company under the Investment Company Act of 1940, as amended.
31 MIAMI9800n (2K)
(j) Margin Stock. The Borrower is not engaged in the business extending credit for the purpose of purchasing or carrying margin stock (wit . n th;\~~~':'~:--~ meaning of Regulation U issued by the Board of Governors of the U.S. Fede
~~~- ~~---Reserve-8-yst8m1,~nd-nQ-prQceeds_of.aILy_A.dYalJ.Q,u,rill be used to purchase or any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock.
(k) No Recordation Necessary. The Transaction Documents are in proper legal form under the laws of Mexico for the enforcement thereof against the Borrower under the laws of Mexico. To ensure the legality, validity, enforceability or admissibility in evidence of this Agreement and each other Transaction Document in Mexico, it is not necessary that this Agreement or any other Transaction Document be filed or recorded with any court or other authority in Mexico (except that the Commitment Letter and the Transaction Documents must be stamped by the Ministry of Finance evidencing registration therewith in accordance with the General Public Debt Law) or that any stamp or similar tax be paid on or in respect of this Agreement or any other document to be furnished under this Agreement; provided, however, that in the event any legal proceedings are brought in the courts of Mexico, an official Spanish translation of the documents required in such proceedings, including this Agreement, would be required.
(1) Financial lriformation.
(i) The audited financial statements of the Borrower for the Fiscal year ended December 31, 2012, were prepared in conformity with !FRS except as discussed in the notes to such statements, consistently applied, and present fairly the financial condition of the Borrower as at December 31, 2012, and the results of its operations during the period ended on such date.
(ii) Since December 31,2012, there has been no development or event that has had or is reasonably likely to have a Material Adverse Effect.
(m) Taxes.
(i) The Borrower has filed all material tax returns which are required to be filed by it and has paid all taxes due pursuant to such returns or pursuant to any assessment received by the Borrower, except where the same is being contested in good faith by appropriate proceedings and as to which the Borrower maintains adequate reserves. The charges, accruals and reserves on the books of the Borrower in respect oftaxes or other governmental charges is, in the opinion of the BOlTower, adequate.
(ii) Except for tax imposed by way of withholding on interest, fees and commissions remitted from Mexico, there is no tax, xxxx, impost, deduction, charge or withholding imposed, levied or made by or in Mexico or any political subdivision or taxing authority thereof or therein either (A) on or
32 MJAMl9800n (2K)
~ .... """''''" .... ~ , (,?E?ITO. Pf..;
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b · f h . d I f .II' h ~~, "".. -~~' y vlrtue 0 t e execuhon or x xxxxx 0 this Agreement or any Bm!~~%.-.. :f\'I~\~\\' _'; 0 Transaction Documents or (B) on any payment to be made by t lLl'li.'\lt~t10 \W\lt- pursuant to this Agreement or any of the other Transaction Docu . eritsl1~~~'~ t/ V
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SectIOn 2.12. , ., .c, .' rfO.'~" • '-G1 ' • ,." ....,..........,";,...
(n) Compliance with Laws. The Borrower has complied with all ~- applicable laws (inclnding, without limitation, all Environmental Laws), ordinances, rules, regulations and requirements of Governmental Authorities except (i) where the necessity of compliance therewith is being contested in good faith by appropriate proceedings and against which adequate reserves are being maintained in accordance with IFRS or (ii) where the failure to comply, individually or in the aggregate, has no reasonable likelihood of having a Material Adverse Effect.
(0) Absence of Default. No Default or Event of Default has occurred and is continuing.
(P) Environmental Matters. The Borrower has reasonably concluded that its expected liabilities and costs relating to Enviromnental Laws, including the costs of compliance therewith, are unlikely to have a Material Adverse Effect.
(q) Full Disclosure. All information (other than projections) furnished by the Borrower to the Administrative Agent or any Lender for purposes of or in connection with this Agreement or any transaction contemplated hereby is true and complete and accurate in all material respects on tile elate as of which such infornlation is stated or certified. As ofthe date hereof, the Borrower (having made all reasonable inquiries) is not aware of any fact or circumstance that has not been disclosed in writing to the Adminish-ative Agent and the. Lenders prior to the date of this Agreement which has had a Material Adverse Effect or may have a Material Adverse Effect (to the extent the Borrower can now reasonably foresee). All proj ections have been made in good faith on the basis of information and assumptions that the Borrower believed to be reasonable at the time such projections were delivered to the Administrative Agent and the Lenders.
(r) No Subsidiaries. As of the date hereof, and the Effective Date, the Borrower has no Subsidiaries.
(s) Sanctions. Neither the Borrower nor its Subsidiaries, if any, nor, to the knowledge of the Borrower, any individual or entity that controls the Borrower, or any director or officer of the Borrower, (i) is currently the subject of any Sanctions, (ii) is located, organized or residing in any Designated Jurisdiction, or (iii) otherwise is a Person with whom a U.S. Person may not deal under U.S. Sanctions. No Advance, nor the proceeds from any Advance, has been or is intended to be used, directly or indirectly, to lend, contribute, provide or has otherwise been or is intended to be made available to fund any activity or business in any Designated Jurisdiction or to fund any activity or business of any Person located, organized or residing in any
33 MIAMI 980072 (2K)
Designated Jurisdiction or who is the target of any Sanctions in any ma result in any violation by any Person (including any Lending Party) of S
ARTICLES
Section 5.01
(a) Financial Reports and Other Information.
(i) The Borrower will deliver to the Administrative Agent within 30 days after publication in English and, in any event, not later than 180 days after the end of each Fiscal Year, its fmancial statements and the financial statements of its Subsidiaries, if any, for such year, including therein its annual audited consolidated balance sheet and the related consolidated statements of income, changes in equity, and changes in financial position, prepared in accordance with IFRS, consistently applied, except as otherwise discussed in the notes to the financial statements, which financial statements shall present fairly the consolidated financial condition of the Borrower and its Subsidiaries, if any, as at the end of the relevant Fiscal Year and the consolidated results of the operations ofthe Borrower during such Fiscal Year, certified by Xxxxx Xxxxxxx Xxxxxxx, or other independent public accountants of recognized ,tanding.
(ii) The Borrower will deliver to the Administrative Agent within 45 days after the end of each quarter, the Borrower's financial statements and the financial statements of its Subsidiaries, if any, for the preceding quarter, and for the period commencing at the end of the previous Fiscal Year and ending with the end of such quarter, including therein its consolidated balance sheet and the related consolidated statements of income, changes in equity, and changes in financial position, prepared in accordance with IFRS, consistently applied, except as otherwise discussed in the notes to the financial statements, which financial statements shall present fairly the consolidated financial condition of the Borrower and its Subsidiaries, if any, as at the end of such quarter and such period and the consolidated results of the operations of the Borrower during such quarter and such period.
(iii) The Borrower will furnish to the Administrative Agent concurrently with the delivery of the fmancial statements referred to in clause (i) above, a certificate executed by a Responsible Officer stating that, as of the date of such certificate, such officer has no knowledge of the existence of any Default except as specified in such certificate.
34 MIAMI 980072 (2K)
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(iv) The Borrower will provide from time to time such ~ler_"'~~::~~\\~\~0" 0 info~ation regarding the business andfi~ancial condition ofthe rr&-~~~)~~--"- ,~ !j and Its Subsldlanes, If any, as the Adm1ll1strallve Agent or any Len' r rna:\" "o.!p
---:reasonably-xequest;-pmllided,_how£lIa,_thaLtheJlormweLshalLnaLb ~'" ., ~d/ . d d I' h' ~. h' I (. ) 'f 0" Dc C\IrrO'\;' requIre to elver any sue InlonnatlOn pursuant to t IS cause IV 1 t, l:::OI7'·:~ r~l. s~
Borrower in good faith determines that such information is confidential.
(b) Notice of Default and Litigation. The Borrower will furnish to the Administrative Agent written notice of (i) any Default signed by a Responsible Officer, describing such Default and the steps that the Borrower proposes to take in connection therewith and (ii) any litigation, action or proceeding pending or threatened against the Borrower or its Subsidiaries, if any, before any Governmental Authority or any arbitral tribunal, which, individually or in the aggregate, has a reasonable likelihood of having a Material Adverse Effect, in each case, not later than five Business Days after the Borrower obtains knowledge thereof (and the Administrative Agent will notify each Lender thereof).
(c) Pari Passu Ranking. The Borrower shall ensure that at all times the obligations of the Borrower under the Transaction Documents constitute unconditional general obligations of the Borrower ranking in priority of payment at least pari passu with all other unsecured and unsubordinated External Indebtedness of the Borrower.
(d) Governmental Approvals.
(i) The Borrower will maintain, and will cause its Subsidiaries, if any, to maintain in full force and effect all governmental approvals (including any exchange control approvals and budget approvals), consents, licenses and authorizations which may be necessary or appropriate under any applicable law or regulation for the execution, delivery and performance of the Transaction Documents by the Borrower and for the validity or enforceability thereof and take all necessary action in Mexico to make all payments to be made thereunder.
(ii) The Borrower will file, and will cause its Subsidiaries, if any, to file all authorizations necessary for, and shall use its best efforts to obtain, the additional authorizations referred to in Section 4.0 I (d)(i) and any 0111er additional authorization or approval as soon as possible after determination that such authorization or approval is required for the Borrower to perfonn its obligations hereunder or under the other Transaction Documents.
(e) Use of Proceeds. The Borrower will use the proceeds of the Advances solely for the purpose described in Section 2.14.
(f) Payment of Obligations. The Borrower will pay and discharge, and will cause each Subsidiary, if any, to pay and discharge, at or before maturity, all its
35 MIAMI 980072 OK)
material obligations and liabilities, including tax liabilities, except if such fail pay has no reasonable likelihood of having a Material Adverse Effect.
-------,(g~--CQ.mplia/:lce-with..La.w..s:.-------------~~,
(i) The Borrower will comply, and will cause its Subsidiaries, if-':;:;;;;;:;.:;;;;:;;; any, to comply with any applicable law, ordinance, rule, regulation or requirement of any Govermnental Authority (including, without limitation, Environmental laws and any such applicable law, ordinance, rule, regulation or requirement of any Govermnental Authority relating to Sanctions, terrorism or money laundering), except (A) where the necessity of compliance therewith is contested in good faith by appropriate proceedings, (B) if such failure to comply, individually or in the aggregate, will not result in any violation of Sanctions by any Lending Party and (C) if such failure has no reasonable likelihood of having a Material Adverse Effect on the Borrower or a material adverse effect on any Lending Party.
(ii) The Borrower will ensnre that each payment to be made by the Borrower (whether of principal, interest or otherwise) in any Fiscal Year shall be included in the Borrower's bndget for such Fiscal Year.
(h) Conduct a/Business and Maintenance a/Existence. The Borrower will continue, and will cause its Subsidiaries, if any, to continue, to engage in business of the same general type as now conducted by the Borrower, and will preserve, renew and keep in full force and effect its legal existence and its rights, privileges and franchises necessary or desirable in the normal conduct of business; provided, however, that nothing in this Section 5.01(h) shall prohibit (i) any transaction pennitted pursuant to Section 5.02(a) or (ii) the loss of any rights, privileges and franchises which, individually or in the aggregate, has no reasonable likelihood of having a Material Adverse Effect.
(i) Insurance. The Borrower will maintain, and will cause its Subsidiaries, if any, to maintain, insurance with reputable insurance companies on its properties as is consistent with the prudent operation of its business.
(j) Subsidiaries. Each of the Borrower's Subsidiaries, if any, formed after the date hereof, will be a Subsidiary duly established and validly existing under the laws of its jurisdiction of incorporation, and will have all corporate powers and all material govermnentallicenses, authorizations, consents and approvals required to carry on its business, except for the absence of any of the foregoing that, in the aggregate, would not reasonably be expected to have a Material Adverse Effect.
Section 5.02 Negative Covenants. So long as any Advance shall remain unpaid or any Lender shall have any Commitment hereunder, the Borrower agrees that:
36 MlAMI9800n OK)
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~ .? (~~i.~'~\. ~. ~.'<;, (a) Fundamental Changes. The Borrower will not (i) consolid 'U~\!;i~~~\}' ;)
merge with or into any other Person or (ii) sell, lease or otherwise transfer, . ;e~l ~\~r rr indirectly, all or substantially all of the assets of the Borrower and its Subsi ies, ..;f/ .,y./Ii
-------___ ,all}'"_talCl:1Las~uk,~ other Person: J2Yovided that (A) the Borrower m ",c",J merge with another Person if (1) the Borrower is the entity surviving such merg (2) after giving effect to such merger, no Default shall have occurred and be continuing, (B) the Borrower may consolidate with or merge into another Person or sell, lease or otherwise transfer all or substantially all of its assets to another Person if (1) the Person formed by such consolidation or into which the Borrower is merged or the Person which acquires by sale, lease or transfer all or substantially all of the assets of the Borrower is a corporation, partnership or trust, organized and validly existing under the laws of Mexico, (2) such Person and each party to this Agreement executes and delivers such amendments or supplements hereto as may be necessary or desirable, in the reasonable judgment of the Required Lenders, to reflect or accommodate such consolidation, merger or sale, (3) such Person assumes the obligations of the Borrower hereunder and (4) immediately after giving effect to such transaction, no Default shall have occurred and be continuing, (C) the Borrower may terminate the corporate existence of any Subsidiary if (1) the Borrower determines in good faith that such termination is in the best interest of the Borrower, (2) such termination is not reasonably likely to be materially disadvantageous to the Lenders and (3) immediately after giving effect to such termination, no Default shall have occurred and be continuing and/or (D) the Borrower may reorganize into two or more entities, or sell, lease or otherwise transfer all or substantially all of its assets to one or more of its Subsidiaries if(l) each such entity or Subsidiary (as tlle case may be) is an entity organized and existing under the federal laws of Mexico and is a decentralized agency (organismo descentralizado) wholly owned by the Federal Government of Mexico or an entity controlled by the Federal Government of Mexico, (2) each such entity or Subsidiary (as the case may be) jointly and severally assumes or guarantees, formally and in writing or by statutory decree, all of the obligations of the Borrower under this Agreement, (3) each such entity or Subsidiary (as the case may be) and each party to this Agreement executes and delivers such amendments or supplements hereto as may be necessary or desirable, in the reasonable judgment of the Required Lenders, to reflect or accommodate such reorganization and/or such assumption or guarantee and (4) immediately after giving effect to any such reorganization or transfer, no Default shall have occurred and be continuing.
(b) Margin Stock. The Borrower will not engage in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation V issued by the Board of Governors of the V.S. Federal Reserve System), and will not use any proceeds of any Advance to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock.
(c) Negative Pledge. The Borrower will not create, assume or suffer to exist, and will not permit any Subsidiary to create, assume or suffer to exist, any Lien
37 MLAMl9800n (2K)
~~;,..~~:;';;~" ,~ (,vl.c .. J11 0 PL!f:.l ....
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on any assets now owned or hereafter acquired by it, in each case to secure r®rI1\~:\1~.:.;--·-- VI 8 fi fE II db dn ..... -.. ~Iu::; or payment 0 xterna n e te ess, except: " .0 0,03'
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~~~~~~~~~~~~_IU Liens in existence on the date hereof, S",,...i.~ remain confined to the properties presently affected thereby and properties ~~~.:...., ~~-- which become affected by such Liens under contracts in effect on the date of this Agreement; and provided forther that such Liens secure or provide for the payment of only those obligations so secured or provided for on the date hereof or any refinancing of such obligations;
(ii) Liens upon any property acquired or held by the Borrower or any of its Subsidiaries incurred to secure the purchase price of such property or to secure External Indebtedness incurred for the purpose of financing the acquisition of such property and any renewal or extension of any such Lien which shall be limited to the original property covered thereby and which shall secure any renewal or extension of the original secured financing;
(iii) Liens existing on any property referred to in clause (ii) above, at the time of its acquisition, and any renewal or extension of any such Lien which shall be limited to the original property covered thereby and which shall secure any renewal or extension of the original secured financing, provided that the aggregate principal amount of the External Indebteduess secured by the Liens referred to in clause (ii) above and this clause (iii) shall not exceed one hundred twenty percent (120%) ofthe purchase price of such property at any time outstanding;
(iv) Liens arising in the course of ordinary commercial banking transactions (and expiring within one (1) year thereafter) to finance the importation or exportation of goods or services into or from Mexico;
(v) Liens on property acquired (or deemed to be acquired) by the Borrower or any of its Subsidiaries under a financial lease, or claims arising from the use or loss of or damage to such property; provided that (A) any such Lien shall secure only rentals and other amounts payable under such lease and (B) such property shall not have been owned by the Borrower or any of its Subsidiaries at any time prior to becoming subject to such lease unless (1) at the time of the acquisition of such property contractual arrangements shall have contemplated that such lease would be executed or (2) such property shall have been acquired from an entity other than the Borrower or its Subsidiaries or a Governmental Authority of Mexico within one (1) year prior to the execution of such lease;
(vi) Liens which shall arise pursuant to any order of attachment, distraint or similar legal process arising in connection with court proceedings and Liens, which shall secure the reimbursement obligation for any bond obtained in connection with the release of property from Liens arising
38 MIA.M19800n (2K)
purSUallt to such legal process, as long as tlie execution or other enforce,' of such Liens arising pursuant to such legal process shall be effectively s alld the claims secured thereby shall be contested in good faith by appropn
--------pr0G"€dings~po.\dded-'l1ly-Sllc 'en shall be released or discharged in ally case within one (1) year of its imposition;
(vii) Liens arising by operation oflaw (alld not pursuallt to any agreement) which shall not have been foreclosed or otherwise enforced against the properties to which they shall apply;
(viii) Liens on property of the Borrower or a Subsidiary securing or providing for the payment of External Indebtedness incurred in connection with any Project Financing; provided that the properties to which any such Lien shall apply are (A) properties which are the subject of such Project Financing or (B) revenues or claims which arise from the operation, failure to meet specifications, failure to complete, exploitation, sale or loss of, or damage to, such properties;
(ix) Liens on Accounts Receivable alld Tangible Assets of the Borrower or its Subsidiaries to the extent pennitted by applicable law; provided that (A) the aggregate principal runount of the External Indebtedness secured by the Liens referred to in this clause (ix) shall not exceed US$3,OOO,OOO,OOO (or its equivalent in other currencies) alld (B) the short- term portion of such External Indebtedness shall not exceed US$I,OOO,OOO,OOO (or its equivalent in olher currencies);
(x) Liens on Available Assets of the Borrower or its Snbsidiaries not pennitted by ally other clause ofthis Section 5 .02(c); provided, however, that, after giving effect to ally such Lien, the aggregate runount of the External Indebtedness secured by the Liens referred to in this clause (x) shall not exceed US$500,OOO,OOO (or its equivalent in other currencies); or
(xi) Liens on the proceeds of ally loans or advances made to the Borrower or a Subsidiary that arise within three months after the date of disbursement of such loans or advallces; provided, however, that, after giving effect to ally such Xxxx, the aggregate runonnt of the External Indebtedness secured by the Liens referred to in fuis clause (xi) shall not exceed US$I,500,OOO,OOO (or its equivalent in other currencies); or
(xii) Pennitted Liens.
ARTICLE 6 EVENTS OF DEFAULT
Section 6.01 Events of Default. IfallY of the following events ("Events of Default") shall occur and be continuing:
39 MlAMI9S0Q72 (2K)
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(a) Nonpayment. The Borrower xxxX fail to pay any princi I df 'fli.jr r.1 ('lprrif1"" 1: Advance when the same becomes due and payable; or the Borrower sha {i;lil t(/j:i~j.'I.L:U~! I, 1: any interest on any Advance or make any other payment of fees or other '''(>Imts -"- payable under the Transaction Documents willlil)JIy~_dm'~J!fikL the;: same .. -dlfe xxx payiible;or--- -- ------- -----
(b) Breach of Representations. (i) Any representation or warranty made by the Borrower herein or in any certificate or document delivered to the Administrative Agent in connection with this Agreement xxxX prove to have been incorrect in any material respect when made (a "misrepresentation") and (ii) ifthe Borrower shall have deternlined in good faith (and shall have notified the Administrative Agent of such determination) that such misrepresentation is reasonably susceptible of cure and the Borrower is undertaking good faith efforts to cure such misrepresentation without, in any event, a Material Adverse Effect (after giving effect to any such cure), such misrepresentation xxxX remain uncured for ten days after the Borrower obtains knowledge of such misrepresentation (including by receipt of notice thereof by the Administrative Agent or any Lender); or
(c) Breach of Covenants. (i) The Borrower shall fail to perform or observe any term, covenant or agreement contained in Section 2.03(b), 5.01(b), 5.01(h) or 5.02, or (ii) the Borrower xxxX fail to perform or observe any other term, covenant or agreement contained in this Agreement (other than those set forth in Section 6.01(a) and (b)) on its part to be performed or observed if such failure xxxX remain unremedied for 20 days after written notice thereof shall have been given to the Borrower by the Administrative Agent or any Lender; or
(d) Other External Indebtedness. Any default xxxX occur under any External Indebtedness of the Borrower or any Subsidiary (other than under this Agreement) having an aggregate outstanding principal amount ofUS$75,000,000 or more and such default shall (i) consist ofthe failure to pay any External Indebtedness of the Borrower or any Subsidiary when due (whether at scheduled maturity, by required prepayment, acceleration, demand or otherwise) after giving effect to any applicable grace period, if any, specified in the agreement or instrument relating to any such External Indebtedness or (ii) result in, or continue unremedied for a period of time sufficient to permit, the acceleration of such External Indebtedness of the Borrower or any Subsidiary; or
(e) Voluntary Bankruptcy. The Borrower shall commence a voluntary case or other proceeding seeking liquidation, reorganization or other relief with respect to itself or its debts under rulY concurso mercantil, bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, interventor, sindico, custodian or other similar official of it or any substrultial part of its property, or shall consent to any such relief or to the appointment of or taking possession by any such official in an involuntary case or other proceeding commenced against it, or xxxX make a general assignment for the
40 MIAMI 980072 (2K)
benefit of creditors, or shall fail generally to pay its debts as they become shall take any corporate action to authorize any of the foregoing; or
(f) Involuntary Bankruptcy. An involuntanr Cil§~ or.9IDer llroQ..e_e . . - ..... -_._. -~-- --sl1atTlJe commenc,iaagainsfthe Bon-ower 'seeldng Iiq.:tictation, reorganization or ol'l'~~_
relief with respect to it or its debts under any concurso mercantil, bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, interventor, sindico, custodian or other similar official of it or any substantial part of its property, and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 days; or
(g) Liquidation and Dissolution. A decree shall be issued or other proceedings shall be commenced by a Govennnental Authority of Mexico seeking liquidation, reorganization or other relief with respect to the Bon-ower or its debts under applicable law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, interventor, sindico, custodian or other similar official of it or any substantial part of its property; or
(h) Unsatisfied Judgments. One or more final judgments, orders or decrees shall be rendered against the Borrower or any Subsidiary involving in the aggregate a liability in excess ofUS$75,000,000 and snchjudgments, orders or decrees shall continue unsatisfied, unvacated or unstayed for a period of 30 days; or
(i) Validity of Agreements. (i) It shall have become unlawful for the Borrower to perform any of its obligations under the Transaction Documents, or any of its obligations under the Transaction Documents shall cease to be valid, binding or enforceable and (ii) the Bon-ower shall not have prepaid the Advances within 3 Business Days thereof; or
(j) Governmental Approvals. The Borrower shall fail to maintain any govennnental or other consent, license, approval (including any foreign exchange approval) or authorization which is now or may in the futnre be necessary or appropriate under any applicable law or regulation for the execution, delivelY or performance by the Borrower of any Transaction Document to which it is a party and its obligations thereunder or to make any Transaction Document legal, valid, enforceable and admissible in evidence or any such consent, license, approval or authorization shall not be obtained or shall be withdrawn or shall cease to be in full force and effect or shall be modified in a mam1er which could reasonably be expected to have a Material Adverse Effect; or
(Ie) Pari Passu Ranking. The obligations of the Borrower under the Transaction Documents shall fail to constitute unconditional general obligations of the Bon-ower ranking in priority of payment at least pari passu with all other unsecured and unsubordinated External Indebtedness of the Borrower;
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then, and in any such event, the Administrative Agent (i) shall at the request, imtlsl]Mll ~ with the consent, of the Required Lenders, by notice to the Borrower, declare e ~.- VJ 0
00 ~~ obligation of each Lender to make Advances to be terminated, whereupon the'-\> 0' (i)~
i)), OF ""o'.,/.:5 shall forthwith tenninate.!..~!l.~L(in. sh&lilt!he...x«.quest,-,}r.may_withJhe_consenl,-o .. 'Br"-A~'r""\u-,,- -~-~--- l"OA,I~5£.C"(Oh
----------Reqliired Lenders, by notice to the Borrower, declare the Advances, the Notes, all '" interest thereon and all other amounts payable under this Agreement to be forthwith due and payable, wherenpon the Notes, all such interest and all such amounts shall become and be forthwith due and payable, without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived by the Borrower; provided, however, that if an Event of Default under Sections 6.01 (e), (f) or (g) shall occur and be continuing then, (A) the obligation of each Lender to make Advances shall automatically be terminated and (B) the Advances, the Notes, all such interest and all such amounts shall automatically become and be due and payable, without presentment, demand, protest or any notice of any kind, all of which are hereby expressly waived by the Borrower.
ARTICLE 7 THE ADMINISTRATIVE AGENT
Section 7.01 Authorization and Action. Each Lender hereby appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under this Agreement as are delegated to the Administrative Agent by the terms hereof, together with such powers and discretion as are reasonably incidental thereto. Furthermore, each Lender hereby irrevocably appoints and authorizes the Administrative Agent as an agent (comisionista) under the tenns of Articles 273 and 274 of the Commerce Code (C6digo de Comercio) of Mexico, to take such action on its behalf under the provisions of this Agreement. As to any matters not expressly provided for by this Agreement (including enforcement or collection of the Notes), the Administrative Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Required Lenders, and such instructions shall be binding upon all Lenders and all holders of Notes; provided, however, that the Administrative Agent shall not be required to take any action that exposes the Administrative Agent to personal liability or that is contrary to this Agreement or applicable law. The Administrative Agent agrees to give to each Lender prompt notice of each notice given to it by the Borrower pursuant to the terms of this Agreement.
Section 7.02 Administrative Agent's Reliance, Etc. Neither the Administrative Agent nor any of its Representatives shall be liable for any action taken or omitted to be taken by it or them under or in cOlmection with this Agreement, except for its or their own gross negligence or willful misconduct. Without limitation ofthe generality of the foregoing, the Administrative Agent: (a) may treat the payee of any Note as the holder thereof until the Administrative Agent receives and accepts an Assignment and Acceptance entered into by the Lender that is the payee of such Note, as assignor, and an Eligible Assignee, as assignee, as
42 MIAMI 980072 (2K)
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provided in Section 8.07; (b) may consult with legal counsel (including couns 'i'<Dl?--~" __ " the Borrower), independent public accountants and other experts selected by it '@('; 0 (1 Q shall not be liable for any action taken or omitted to be taken in good faith by it 1 0/)6.<Xxxxxxx v,C\o"",Vv
________ ilccQrQance ..J:Yi1h the xxxxxx_xxx.0!X_x_x@xx.xx,_ac.cQuntants..oLexpeJ;!s;..(c).mak€X.xx . .<J~!':::?" ?V __ warranty or representation to any Lender and shall not be responsible to any Lender .' . for any statements, warranties or representations (whether written or oral) made in or in connection with this Agreement; (d) shall not have any duty to ascertain or to inquire as to the performance, observance or satisfaction of any of the terms, covenants or conditions of this Agreement on the part of the Borrower or the existence at any time of any Default or to inspect the property (including the books and records) of the Borrower; (e) shall not be responsible to any Lender for the due execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other instrument or document furnished pursuant hereto; and (f) shall incur no liability under or in respect of this Agreement by acting upon any notice, consent, certificate or other instrument or writing (which may be by telecopier or telegram) believed by it to be genuine and signed or sent by the proper party or parties.
Section 7.03 [Reserved}
Section 7.04 Lender Credit Decision. Each Lender acknowledges that it has, independently and without reliance upon any other Lending Party and based on the financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into tllis Agreement. Each Lender also acknowledges that it will, independently and without reliance upon any other Lending Party and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement.
Section 7.05 Indemnification. The Lenders agree to indemnify the Administrative Agent and its Representatives (to the extent not reimbursed by the Borrower), ratably according to the respective aggregate principal amounts ofthe Advances owing to each of them and the respective amounts of their unutilized Nominal Commitments at the time indemnification is sought hereunder, from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever that may be imposed on, incurred by, or asserted against the Administrative Agent in any way relating to or arising out of any Transaction Document or any action taken or omitted by the Administrative Agent under any Transaction Document (collectively, the "Indemnified Costs"), provided that no Lender shall be liable for any portion of the Indemnified Costs resulting from the Administrative Agent's gross negligence or willful misconduct determined by a court of competent jurisdiction in a judgment that has become final in that it is no longer subject to appeal. Without limitation of the foregoing, each Xxxxxx agrees to reimburse the Administrative Agent and its Representatives promptly upon demand for its ratable share (detennined at the time reimbursement is sought hereunder) of any out of pocket expenses (including counsel
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fees) incurred by the Administrative Agent in connection with the preparati ,. i ~\'\~:\~::\~\\~~~:: § execution, delivery, administration, modification, amendment or enforcemel' \<)~." /,,/ (whether throngh negotiations, legal proceedings or otherwise) of, or legal adVjb~,in", '.'.:; j ___ . __ " respect of rights or responsibilitk:iJlllilllr,.1his.Agreementr tuJhe.extenLthat-the", '< ".,_ ,,' '-" Administrative Agent is not reimbursed for such expenses by the BorroweL In the --" case of any investigation, litigation or proceeding giving rise to any Indemnified Costs, this Section 7.05 applies whether any such investigation, litigation or proceeding is brought by the Administrative Agent, any Lender or a third party.
Section 7.06 Successor Administrative Agent, The Administrative Agent may resign at any time by giving written notice thereofto the Lenders and the Borrower and may be removed at any time with or without cause by the Required Lenders, Upon any such resignation or removal, the Required Lenders shall have the right to appoint a successor Administrative Agent If no successor Administrative Agent shall have been so appointed by the Required Lenders, and shall have accepted such appointment, within 30 days after the retiring Administrative Agent's giving of notice of resignation or the Required Xxxxxxx' removal of the retiring Administrative Agent, then the retiring Administrative Agent may, on behalf of the Lenders, appoint a successor Administrative Agent, which shall be a commercial bank organized under the laws of the United States of America or of any State thereof and having a combined capital and surplus of at least US$500,000,000. Upon the acceptance of any appointment as Administrative Agent hereunder by a successor Administrative Agent, such successor Administrative Agent shall thereupon succeed to and become vested with all the rights, powers, discretion, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations under this Agreement After any retiring Administrative Agent's resignation or removal hereunder as Administrative Agent, the provisions of this AIiicle 7 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Administrative Agent under this Agreement
ARTICLE 8 MISCELLANEOUS
Section 8,01 Amendments, Etc. No amendment or waiver of any provision of this Agreement or the Notes, nor consent to any departure by the Borrower therefrom, shall in any event be effective unless the same shall be in writing and signed by the Required Lenders, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that no amendment, waiver or consent shall, unless in writing and signed by all the Lenders affected thereby, do any of the following: (i) amend Section 2.13, (ii) increase the Commitments of the Lenders, (iii) reduce the principal of, or interest (or interest rate) on, the Notes or any fees or other amounts payable in accordance with the terms hereof, (iv) postpone any date fixed for any payment of principal of, or interest on, the Advances or the Notes or any fees or other amounts payable in accordance with the terms hereof, or (v) change the percentage ofthe Commitments or of the aggregate unpaid principal amount of the Notes, or the number of Lenders,
44 MIAMI 980072 (2K)
----------
that shall be required for the Lenders or any of them to take any action hereu . amend this Section 8.01; and provided/urther that no amendment, waiver or shall, unless in writing and signed by the Administrative Agent in addition t Lenders required above to take such action,_affecUhe-ri.g.ht-s-or-duties-oHhe- Administrative Agent under any Transaction Document.
Section 8.02 Notices, Effectiveness; Electronic Communications.
(a) Except in the case of notices and other communications expressly permitted to be given by telephone (and except as provided in subsection (b) below), all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed or sent by facsimile as follows, and all notices and other communications expressly permitted hereunder to be given by telephone shall be made to the applicable telephone number, as follows: (i) ifto the Borrower, at its address at Xxxxx xx xx Xxxxxxx Xx. 000,0x Xxxx, Xxx. Xxxxxx, 0000 Xxxxxx, X.X., Attention: Gerente de Planeaci6n Financiera (xxxxx.xxxxxx@xxx.xxx.xx) and/or Subgerente de Desarrollo de Negocios (xxxXxxxxx.xxxxxxx@xxx.xxx.xx), x00 00 0000 0000 (facsimile) or x000000000000 (telephone), (ii) ifto the Administrative Agent or any Lender party hereto as of the date hereof, to the address, facsimile number, electronic mail address or telephone number specified for such Person on Schedule 1 hereto; and (iii) ifto any other Lender that becomes a party hereto after the date hereof, to the address, facsimile number, electronic mail address or telephone number specified in the respective administrative questionnaire (including, as appropriate, notices delivered solely to the Person designated by a Lender on its administrative questionnaire then in effect for the delivery of notices that may contain material non-public information relating to any Lending Party). Notices and other communications sent by hand or overnight courier service or mailed shall be deemed to have been given when deposited with such delivery or courier service or deposited in the mails; notices and other communications sent by facsimile shall be deemed to have been given when sent. Notices and other communications delivered through electronic communications to the extent provided in subsection (b) below, shall be effective as provided in such subsection.
(b) Notices and other communications to the Lenders hereunder may be delivered or furnished by electronic communication (including e-mail and Internet or intranet websites) pursuant to procedures approved by the Administrative Agent, provided that the foregoing shall not apply to notices to any Lender pursuant to Article 2 if such Xxxxxx has notified the Administrative Agent that it is incapable of receiving notices under such Article by electronic communication. The Administrative Agent or the Lending Parties may each, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it, provided that approval of such procedures may be limited to pmiicular notices or communications. Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender's receipt ofan
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~ ·R£GtSlB~UD. ~ acknowledgement from the intended recipient (such as by the "retum rec . $ .. -.'- "'? reque~xxx" function, as available, retum e-mail or other written acknowl~ ~oot!;(.p~':; and (11) notlees or commUlllcatiOns posted to an Internet or Illtranet websIte {b~l'AurO"\'L:;i'" ~ deemed received upon the deemed receipihy_thejutendecLrecip.ient-at .. it.s-e-mal· '.;2.:.:::':;';:·;,,,,,.£--- --_. address as described in the foregoing clause (i) of notification that such notice or -_. communication is available and identifying the website address therefor.
(c) Each Lender hereby acknowledges that the Administrative Agent will make available to the Lenders materials andlor information provided by or on behalf of any Lender (collectively, "Loan Materials") by posting the Loan Materials on an electronic transmission system to be advised by the Administrative Agent to the Lenders from time to time (the "Platform"). The Platform is provided "as is" and "as available." The Agent Parties (as defined below) do not warrant the accuracy or completeness ofthe Loan Materials or the adequacy of the Platform, and expressly disclaim liability for errors in or omissions from the Loan Materials. 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 any Agent Party in connection with the Loan Materials or the Platform. In no event shall the Administrative Agent or any of its AffIliates (collectively, the "Agent Parties") have any liability to any Lending Party or any other Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) arising out of any Lending Party's or the Administrative Agent's transmission of Loan Materials through the Internet.
Section 8.03 No Waiver; Remedies. No failure on the part of any Lender or the Administrative Agent to exercise, and no delay in exercising, any right hereunder or under any Note shall operate as a waiver thereof; nor shall any single or partial exercise of any such right preclude any other or further exercise thereof or the exercise of any other right. The remedies herein provided are cumulative and not exclusive of any remedies provided by law.
Section 8.04 Costs and Expenses. (a) The Borrower agrees to pay promptly after demand (i) all reasonable and documented out-of-pocket costs and expenses of the Lending Parties in connection with the preparation, execution, and delivery of the Transaction Documents and the other docnments to be delivered hereunder, including, without limitation, all due diligence, syndication (including printing, distribution ruId bank meetings), transportation, computer, duplication, appraisal, consultant, and audit expenses, regardless of whether any Borrowings are made or any of the other trrulsactions contemplated hereby are consummated; provided, however, that such payment or reimbursement obligations specified in this Section 8.04(a)(i) shall be subject to the prior approval ofthis Agreement by, and registration ofthis Agreement with, the Ministry of Finance, and (ii) the reasonable and documented fees and expenses of counsel for the Lending Parties with respect thereto and with respect to advising the Lending Parties as to their respective rights and responsibilities under this Agreement; provided, however, that the Borrower's obligations with respect to (x) fees of counsel to the Lending Parties in connection
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with the preparation, execution and delivery of this Agreement and (y) all other ,0 0 of-pocket costs and expenses of the Lending Parties in COIDlection with the 0;1> <) ,,""/ preparation, dne diligence, syndica.tion, exe.c.ution, delivery and closing of this ~:1uroRI7J<~'i~
h _"__ 'lo.,.,,)1 __ Agreement, the Notes and t e otheU!lli!JJIDl<111s_La...bJlJleli.yeredllereundeLShaLl-be.-. • _H' -.--- ... -- -- ---- limited to the amounts specified in the Conuuitment Letter. The Borrower further -,
agrees to pay promptly, after demand tIlerefor, all costs and expenses of the Lending Parties, if any (including, without limitation, reasonable and documented counsel fees and expenses), in cOilllection with the enforcement (whether through negotiations, legal proceedings or otherwise) of this Agreement, the Notes and the other documents to be delivered hereunder, or any amendment thereof requested by the Borrower, including, without limitation, reasonable and documented fees and expenses of counsel for each Lending Party in cOilllection with the enforcement of rights under this Section 8.04(a).
(b) The Borrower agrees to indemnify and hold harmless each Lending Party and each of tIleir respective Affiliates and their Representatives (each, an "Indemnified Party") from and against any and all claims, damages, losses, liabilities and expenses (including reasonable and documented fees and expenses of counsel) incurred by or asserted or awarded against any Indemnified Party, in each case arising out of or in cOilllection with or by reason of (including in cOilllection with any investigation, litigation or proceeding or preparation of a defense in cOilllection therewith) (i) the Transaction Documents, any of the transactions contemplated herein or the actual or proposed use of the proceeds of the Advances or (ii) the actual or alleged presence of Hazardous Materials on any property of the Borrower or any of its Subsidiaries or any Enviromnental Action relating in any way to the Borrower or any of its Subsidiaries, except to the extent such claim, damage, loss, liability or expense is found in a fmal, non-appealable judgment by a court of competent jurisdiction to have resulted from such Indemnified Party's gross negligence or willful misconduct. In the case of an investigation, litigation or other proceeding to which the indemnity in this Section 8.04(b) applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by the BOlTower, its directors, equity-holders or creditors or an Indemnified Party or any other Person, whether or not any Indemnified Party is otherwise a party thereto and whether or not the transactions contemplated hereby are consummated. The Borrower also agrees not to assert any claim for special, indirect, consequential or punitive damages against any Lending Party, any of their Affiliates, or any of their respective Representatives, on any theory ofliability arising out of or otherwise relating to the Notes, this Agreement, any of the transactions contemplated herein or the actual or proposed use of the proceeds of the AdvallCes.
(c) If (i) any payment of principal of any Advance is made by the Borrower to or for the account of a Lender other than on the last day of the Interest Period for such Advance, as a result of a payment pursuant to Section 2.08 or 2.l0 or acceleration of the maturity of the Notes pursuant to Section 6.01 or for ally other reason, or (ii) the Borrower fails for any reason to make any prepayment of the Loans on tile date specified therefor in notice thereof delivered in accordance with this
47 MIAMI 980072 (2K)
Agreement, the Borrower shall, upon demand by each Lender (with a copy 0 demand to the Administrative Agent), pay to the Administrative Agent for th account of such Lender any amounts required to compensate such Lender for additional losses, costsllt=pmRils_(.o.theLthalLConsequentiaLdamages-aud-1Gs "'~t-~ ,;'j!-, anticipated profits) that it may reasonably incur as a result of such payment or Ii ~~[ ~'_n'"",,'c'~''':'' to prepay, including any loss, cost or expense incurred by reason of the liquidation ~ __ ,,,_,,,;.;/"~ reemployment of depOSIts or other funds acqUIred by any Lender to fund or mamtam - - any Advance,
(d) Without prejudice to the survival of any other agreement of the Borrower hereunder, the agreements and obligations of the Borrower contained in Sections 2,09, 2,12 and 8,04 shall survive the payment in full of principal, interest and all other amounts payable hereunder and under the Notes,
Section 8,05 [Reserved).
Section 8,06 Binding Effect, This Agreement shall become effective (other than Section 2,01(a), which shall only become effective upon satisfaction of the conditions precedent set forth in Section 3,01) when it shall have been executed by the Borrower and the Administrative Agent and when the Administrative Agent shall have been notified by each Lender specified in Schedule 1 that such Lender has executed it and thereafter shall be binding upon and inure to the benefit of the Borrower, the Administrative Agent and each Lender and their respective successors and assigns, except that the Borrower shall not have the right to assign its rights hereunder or any interest herein without the prior written consent of the Lenders,
Section 8,07 Assignments and Participations, (a) Each Lender may assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and the Note or Notes held by it) with the consent of the Borrower (so long as no Event of Default shall have occurred and be continuing at the time of such assigmnent) and the consent of the Administrative Agent (which consents shall not be unreasonably withheld or delayed and deemed given unless the Borrower shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having notice thereat); provided, that if such Eligible Assignee is a Lender or an Affiliate of a Lender then no such consents shall be required; and provided, further, that (i) each such assigmnent shall be of a constant, and not a varying, percentage of all rights and obligations under this Agreement, (ii) except in the case of an assigmnent to a Person that, immediately prior to such assigmnent, was a Lender or an assignment of all of a Lender's rights and obligations under this Agreement, the amount of the Commitment of the assigning Xxxxxx being assigned pursuant to each such assignment (determined as of the date of the Assignment and Acceptance with respect to such assigmnent) shall in no event be less than US$5,000,000 or an integral multiple ofUS$I,OOO,OOO in excess thereof, and (iii) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assigmnent and Acceptance, together with any Note
48 MJAMl980072 (2K)
subject to such assignment and a processing and recordation fee ofUS$3,500. )<1lJ. iY"o such execution, delivery, acceptance and recording, from and after the effective ?'Iil; 0(' . c.,()~o;;. specified in each Assignment and Acceptance, (x) the assignee thereunder shall be °'''0 ;\~~2~l;~~ . party hereto and, tojh_e~xlenLthaLrights_and_obligations_h~r~un<l"r_have_been---~~~,..:2:':'- assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (y) the Lender assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than its rights under Sections 2.09,2.12 and 8.04 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning Lender's rights and obligations under this Agreement, such Lender shall cease to be a party hereto). Notwithstanding the foregoing, the Borrower shall not have any obligation to any assignee under Section 2.09 or 2.12 that exceeds the obligation that the Borrower had thereunder to the assignor prior to the assignment to such assignee.
(b) By executing and delivering an Assignment and Acceptance, the Lender assignor thereunder and the assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other instrument or document furnished pursuant hereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower or the performance or observance by the Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies ofthe financial statements referred to in Section 4.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon the Administrative Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers and discretion under this Agreement as are delegated to the Administrative Agent by the terms hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all ofthe obligations that by the terms of this Agreement are required to be performed by it as a Lender.
(c) The Administrative Agent shall maintain at its address referred to in Section 8.02 a copy of each Assignment and Acceptance delivered to and accepted by
49 MIAMI 980072 (2K)
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it and a register for the recordation of the names and addresses of the Lenders d t~ o'~~::; Commitment of, and principal amount of the Advances owing to, each LenderG)'I\~/" i-,. "\I),0~q~ time to time (the "Register"). The entries in the Register shall be conclusive an , "I1:_o,':,~;'\' ~~("Q
__ ._ .. __ -.-binding~or.alLp.ut:poses~absent..manife8t-err0r,-and-the-B0rrower;-the-A-dministrative'- .... -~'"',.;:"'--- .. Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, together with any Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower. Within five Business Days after its receipt of such notice, the Borrower, at its own expense, shall execute and deliver to the Administrative Agent in exchange for any Note(s) held by the assigning Lender (x) if requested by the assignee, a Note payable to its order in an amount equal to the Commitment assumed by it pursuant to such Assignment and Acceptance and (y) if the assigning Lender has retained a Commitment, a new Note payable to its order in an amount equal to the Commitment retained by it. Snch new Note or Notes shall be dated the effective date of such Assignment and Acceptance and otherwise be in substantially the form of Exhibit A hereto.
( e) Each Lender may sell participations to one or more xxxxx or other entities (other than the Borrower or any of its Affiliates) (each, a "Participant") in or to all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment, the Advances owing to it and any Note(s) held by it); provided, however, that (i) such Lender's obligations under this Agreement (including its Commitment to the Borrower hereunder) shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) snch Lender shall remain the holder of any such. Note for all purposes of this Agreement, (iv) the Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement and (v) no participant under any such participation shall have any right to approve any amendment or waiver of any provision of any Transaction DocU1l1ent, or any consent to any departure by the Borrower therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest (or interest rate) on, the Notes or any fees or other amounts payable in accordance with the terms hereof, in each case to the extent subject to such participation, or postpone any date fixed for any payment of principal of, or interest on, the Advances or the Notes or any fees or other amounts payable in accordance with the terms hereof, in each case to the extent subject to such participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a
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register on which it enters the names and addresses of its Participants and the ~ ~ ~~/ ~ ';! § o...l /~""~ 2Q
principal amounts (and stated interest) of each Participant's interest in the 'i ~ ~S:;;/} :t It Commitments or other obligations under the Transaction Documents, and any ., " <y~~ ,tt
___ . _____ plLyJn.enls..made..witluespecLto-each-such-partkipation-(the.,;I!artiG>ipant-R€lgi£ter . ,.-1;>-~ .- ---; ---:-~.:: provided that no Lender shall have any obligation to disclose all or any portion oft o~f.~~~ Participant Register (including the identity of any Participant or any infOlmation """--- relating to a Participant's interest in any Conunitments, loans, letters of credit or its other obligations under any Transaction Document) to any Person except to the extent that such disclosure is necessary to establish that such Commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(f) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 8.07, disclose to the assignee or participant or proposed assignee or participant, any infonnation relating to the Borrower furnished to such Lender by or on behalf of the Borrower; provided that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree to preserve the confidentiality of any Confidential Infonnation relating to the Borrower received by it from such Lender.
(g) Notwithstanding any other provision set forth in this Agreement, any Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including the Advances owing to it and the Note held by it) in favor of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve System or in favor of any central bank in accordance with applicable law.
Section 8,08 Confidentiality. Neither the Administrative Agent nor any Lender shall disclose any Confidential Information to any other Person without the consent of the Borrower, other than (a) to any Affiliate of such Person, or any other party to this Agreement (or any Affiliate thereof), or any Representative of any of the foregoing, on a confidential basis as reasonably necessary in connection with the transactions contemplated by the Transaction Documents (including the administration or enforcement of the Transaction Documents), (b) as contemplated by Section 8.07(f), to actual or prospective assignees and participants who agree in writing to be bound by the terms of this Section 8.08 or by any other agreement containing confidentiality provisions for the benefit of the Borrower which are at least as restrictive as those ofthis Section 8.08, (c) to any direct or indirect contractual counterparty in any swap, hedge, credit default swap or other credit insurance, or similar agreement (or to any such contractual counterparty's professional advisor) so long as such contractual counterparty or such contractual
51 MIAMI 980072 (2K)
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~ ~ '""" ... <'" / counterparty's professional advisor agrees in writing to be bound by the tenns ,tM1& o~:;'j Section 8,08 or by any other agreement containing confidentiality provisions fo , 0", r,"" ')~~" benefit of the Borrower which are at least as restrictive as those of this Section 8,0 , _~~;~~
,(d),as,required,by, any<applicable,law" rule'Ol~regulation<or-judicial,pr0c"ss,,«e) to the __ ,,, - cc, -- < , extent requested or required by any state, federal or foreign authority, any bank or securities examiner or any self-regulatory authority, or (I) in connection with the preservation or enforcement of rights or remedies hereunder,
Section 8,09 Governing Law, The Transaction Documents shall be governed by, and construed in accordance with, the laws of the State of New York
Section 8, I ° Execution in Counterparts, This Agreement may be executed in any number of counterpalis and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement Delivery of an executed counterpart of a signature page to this Agreement by telecopier or electronic mail shall be effective as delivery of a manually executed counterpati ofthis Agreement
Section 8.1 I Jurisdiction, Etc, (a) Each ofthe parties hereto hereby irrevocably and unconditionally submits, for itself and its property, to the jurisdiction of atW New York State court or federal court of the United States of America sitting in the Borough of Manhattan, New York City, and atly appellate court from any thereof (each, an "Applicable Court") in any action or proceeding arising out of or relating to the Transaction Documents, or for recognition or enforcement of any judgment in respect thereof, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and deteffilined in any such New York State court or, to the extent peffilitted by law, in such federal court, Each of the parties hereby irrevocably waives the right to commence or maintain any suit, action or proceeding in any venue other than an Applicable Court, including any such jurisdiction in which it may be entitled to do so by reason of its present or future domicile or otherwise, Notwithstanding anything contained herein (including the immediately foregoing sentence), each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law,
(b) The Borrower hereby irrevocably appoints the Consulate General of Mexico (the "Process Agent"), located at 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx I 00 16, United States, as its agent to receive on behalf of the Borrower and its property service of copies of the summons and complaint and any other process which may be served in any action or proceeding referred to in clause (a) above, Such service may be made by mailing or delivering a copy of such process to the Borrower in care of the Process Agent at the Process Agent's above address, and the Borrower hereby irrevocably authorizes and directs the Process Agent to accept such service on its behalf.
52 MIAMI 980072 (2K)
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the fullest extent it may legally and effectively do so, any objection that it rna "oW ' I!f§ or hereafter have to the laying of venue of any suit, action or proceeding arisin uto ,,' S,P",0u
'--~{%h~"iig~~;~-h~~:~a:;7eg0!~v~~~~;~':~~~~:t~~r~~::~ee~~~::;:~~xxx~~~ by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.
Section 8.12 Judgment Currency. (a) If, for the purposes of obtaining judgment in any court, it is necessary to convert a sum due hereunder or under the Transaction Documents in Dollars into another currency, the parties hereto agree, to the fullest extent that they may legally and effectively do so, that the rate of exchange used shall be that at which, in accordance with normal banking procedures, the Administrative Agent could purchase Dollars with such other currency in New York City on the Business Day preceding that on which a final, non-appealable judgment is given.
(b) The obligations of the Borrower in respect of any sum due to the Administrative Agent or any Lender hereunder or under the Notes shall, notwithstanding any judgment in a currency other than Dollars, be discharged only to the extent that on the Business Day following receipt by the Administrative Agent or the Lender, as the case may be, of any sum adjudged to be so due in such other currency, the Administrative Agent or such Lender, may, in accordance with normal, reasonable banking procedures, purchase Dollars with such other currency. If the amount of Dollars so purchased is less than the sum originally due to the Administrative Agent or any Lender, in Dollars, the Borrower agrees, to the fullest extent that it may effectively do so, as a separate obligation and notwithstanding any such judgment, to indemnify the Administrative Agent or the Lender, as the case may be, against such loss and, ifthe amount of Dollars so purchased exceeds the sum originally due to such Lender, such Lender agrees promptly to remit such excess to the Borrower.
Section 8.13 Waiver of Jury Trial. Each of the Borrower, the Administrative Agent and the Lenders hereby irrevocably waives, to the fullest extent permitted by law, all right to trial by jury in any action, proceeding or counterclaim (whether based on contract, tort or otherwise) arising out of or relating to this Agreement or the Notes or the actions ofthe Administrative Agent or any Lender in the negotiation, administration, performance or enforcement thereof.
Section 8.14 International Banking Facilities. Certain Lenders intend to book extensions of credit hereunder on the books and records of their respective international banking facilities, which will constitute an "international banking facility extension of credit" within the meaning of Section 204.8(a)(3) of Regulation D. Accordingly, pursuant to Regulation D, the Borrower acknowledges that such Lenders have notified to the Borrower that it is the policy of the Board of Governors of the Federal Reserve System that extensions of credit by international banking
53 MIAMI 980072 (2K)
Section 8.15 Waiver a/Immunity. To the extent that the Bon'ower has or hereafter may acquire any immunity from jurisdiction of any XXXxx or from any legal process (whether through service or notice, attachment prior to judgment, attachment in aid of execution, or otherwise) with respect to itself or its property, the Borrower hereby irrevocably waives such immunity in respect of its obligations under the Transaction Documents to the extent permitted by applicable law (and subject to the limitations referred to in clauses (i) and (ii) of the second sentence of Section 4.01(h)) and, without limiting the generality of the foregoing, agrees that the waivers set forth in this Section shall have effect to the fullest extent permitted under the Foreign Sovereign Immunities Act of 1976 of the United States of America and are intended to be irrevocable for purposes of such Act.
Section 8.16 No Fiduciary Duty. The Borrower acknowledges that the Lenders have no fiduciary relationship with, or fiduciary duty to, the Borrower arising out of or in connection with this Agreement or the other Transaction Documents, and the relationship between each Lender and the Borrower is solely that of creditor and debtor. This Agreement and the other Transaction Documents do not create a joint venture among the parties.
Section 8.17 USA Patriot Act. Each Lender that is subject to the Act (as hereinafter defined) and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Borrower that pursuant to the reqnirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,2001)) (the "Act"), it is required to obtain, verify and record information that identifies the Borrower, which information includes the name and address ofthe Borrower and other infonnation that will allow such Lender or the Administrative Agent, as applicable, to identify the Borrower in accordance with the Act.
Section 8.18 Lead Arrangers and Joint Bookl"unners. The parties hereto' agree that the Lead Arrangers and Joint Bookrunners shall, in their individual capacity in such roles and not as Lenders, have no duties or responsibilities under this Agreement. No Lead Arranger and Joint Bookrunner (including in their capacity as Lenders) shall have, or be deemed to have, any fiduciary relationship with the Borrower or with any other Lending Party. The Lead Arrangers and Joint Bookrunners, in their individual capacity in such roles and not as Xxxxxxx, are intended third-party beneficiaries with respect to Sections 2.02, 2.03(b) and 8.04 of this Agreement.
[Remainder of page intentionally left blank 1
54 MIAMI 9800n (2K)
COMISIONF ELECTRI
By: Name: Title:
D, as Borrower
tl:?A.\J C(.,. C"o CfO
This signature page relates to that certain Credit Agreement dated ~O U, { .~, 2013, among Comision Federal de Electricidad, as Borrower, the Lenders named herein, and BBVA Bancomer, S.A., lnstitucion de Banca Multiple, Grupo Financiero BBV A Bancomer, as Administrative Agent.
MIAMI 980072 (2K)
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BBVA BANCOMER, SA, INS DE BANCA MULTIPLE, GR FINANCIERO BBV A BANCO as Admmlstratlve Agent
By: Name:
Title: ATTORNEY IN LAW
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Lenders
BANCO NACIONAL XX XXXXX(J~S".A. INTEGRANTE DEL GRU FINANCIERO BANA'}\(I'J:?9/
By:
By:
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Name: Title:
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Name: Xxxx X. Xxx Title: Executive Director Loan
Syndications
BANK
By:
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x xxx Xxxxxx Managing Director
By: Name: Xxxxx:
Xxxxxxxx X. Xxxx Vice President
By:
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CREDIT AGRICOLE CORPO INVESTMENT BANK
By: Name: Title:
Xxxxx Xxxxx Director
By: /h~ ;3 A14d)r Name: M M T't1 ' yra artfnez 1 e, V' P Ice resident
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DEUTSCHE BANK AG, LONDON BRANCH
By: Name: ..A~ Title: (c).X X.X"l. ':J'
YVl. Ecn'Z-
By: Name: Title:
Title:
By: Name: Title: ' ..... ant
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EXPORT DEVELOPMENT.
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Title:
Name~ Title: Sr. Financing Manager
XXXXXXX XXXXX BANK US
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By: Name: Title:
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HSBC BANK USA, N.A.
Name: Title:
xxxxXxx Xxxx dey Vice President
M1ZUHO BANK, LTD.
By:
anager
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SUMITOMO MITSUI BA CORPORATION
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VICE PRESIDENT
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Name: Title:
Xxxxxx Xxxxx Associate Director
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THE BANK OF TOKYO-MITSUBISHI UFJ,LTD.
By: y, "-z=..-- Name: Title:
Xxxxxxxxx Xxxxxxx Vice President
APPLICABLE LENDING OFFICES
Name Of Lender
BANCO NACIONAL DE MEXICO, SA INTEGRANTE DEL GRUPO FINANCIERO BANAMEX
BANCO SANTANDER (MEXICO), SA INSTITUCION DE BANCA MULTIPLE, GRUPO FINANCIERO SANTANDER MEXICO
BANK OF AMERICA, NA
BARCLAYS BANK PLC
BBVA BANCOMER, SA INSTITUCION DE BANCA MULTIPLE, GRUPO FINANCIERO
MIAMI 980072 (2K)
Lending Office
Xxxxxxxx Xxx00xxx 00 Xxxxxxx Xxxxxx, Xxxxxx XX, X.X. 00000 Attention: Xxxxxx Xxxxxx Gout Telephone: x(00) 00 00 00 00 00 Facsimile: x(00) 00 00 00 00 00 E-mail: xxxxxxxxxxx@xxxxxxx.xxx
Xxxxxxxxxx0x Xxxxx xx xx Xxxxxxx 000, Xxxx 2, Modulo 206, Col. Xxxxx xx Xxxxx Xx Xxxxxx, X.X. 00000 Attention: Xxxxx Xxxxxxx Xxxxxx de Oca Telephone: x00 (00) 0000-0000 Ext. 40032 Facsimile: x00 (00) 0000-0000 E-mail: xxxxxxxx@xxxxxxxxx.xxx.xx
000 Xxxxx Xxxxx Xxxxxx Xxxxxxxxx, Xxxxx Xxxxxxxx, 00000 Attention:
Xxxxxxxxx Xxxxxxxx Telephone: x0000 00000000 E-mail: xxxxxxxxx.xxxxxxxx@xxx!.com
Xxxxxx Xxxx Telephone: +5255 0000 0000 E-mail: xxxxxx.xxxx@xxxx.xxx
000 0xx Xxxxxx, Xxx Xxxx, XX, 00000 XXX Attention: Xxx Xxxxx Telephone: x000 000-0000 Facsimile: x000 000-0000 E-mail: Xxx.Xxxxx@Xxxxxxxx.xxx
Xxxxxxx Xxxxxxxxxxx Xx. 0000, Xxx. Xxxx, Xxxxxx, X.X., 00000
BNPPARIBAS
000 Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000 Attention: Xxxxx Xx Xxxxx Telephone: x000 000-0000 Facsimile: x000 000-0000 E-mail: xxxxx.xxxxxxx@xx.xxxxxxxxxx.xxx
1301 Avenue ofthe Americas, CREDIT AGRICOLE CORPORATE Xxx Xxxx, XX 00000 AND INVESTMENT BANK Attention: Xxxxx Xxxxxxxx
Telephone: x000 000-0000 Facsimile: x000 0000-0000
DEUTSCHE BANK AG, LONDON BRANCH
DZBANKAG DEUTSCHE ZENTRAL- GENOSSENSCHAFTSBANK FRANKFURT AM MAIN
EXPORT DEVELOPMENT CANADA
XXXXXXX XXXXX BANK USA
MIAMI 980072 (2K)
E-mail: Xxxxx.Xxxxxxxx@xx-xxx.xxx
Xxxxxxxxxx Xxxxx, X Xxxxx Xxxxxxxxxx Xxxxxx Xxxxxx, Xxxxxxx XX0X 0XX
Attention: Xxxxxx Xxxxxxxx Telephone: x00 (0) 000 00 00000 Facsimile: x00 (0) 000 00 00000 E-mail: Xxxxxx.xxxxxxxx@xx.xxx
000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000 Attention: Xxxxxx Xxxxxxxxx Telephone: x000 000-0000 Facsimile: x000 000-0000 E-mail: Xxxxxx.xxxxxxxxx@xxxxxx.xx
000 Xxxxxx Xxxxxx Xxxxxx, Xxxxxxx 2KIA IK3 Canada Attention: Xxxxxxxx Xxxxxxx Telephone: x000 000-0000 E-mail: xx0xxxxx@xxx.xx
000 Xxxx Xxxxxx Xxx Xxxx, XX 00000 Attention: Xxxxxxxx Xxxxxxx Telephone: x000 000-0000 E-mail: xxx.xxxx@xx.xxx
HSBC BANK USA, N.A.
MIZUHO BANK, LTD.
SUMITOMO MITSUI BANKING CORPORATION
SUMITOMO MITSUI TRUST BANK, LIMITED, NEW YORK BRANCH
THE BANK OF NOVA SCOTIA
MIAMI 000000 (2K)
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1251 Avenue of the Americas Xxx Xxxx, XX 00000 Attention: Xxxxxx Xxxxxxxxx Telephone: 000-000-0000 Facsimile: x000 000-0000
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E-mail: Xxxxxx.xxxxxxxxxx@xxxxxxxxxx.xxx
000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000, X.X.X. Attention: Xxxx Xxxxx Telephone: x000 000-0000 E-mail: xxxxxx@xxxxxx.xxx
000 Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000 Attention: Xxxxxx X. Xxx II Telephone: x000 000-0000 Facsimile: x000 000-0000 E-mail: xxx_xxxxxx@xxxx.xx
00 Xxxx Xxxxxx Xxxx Xxxxxxx, XX X0X XXXXxxxxx Attention:
Xxxxxx Xxxx de la Xxxxx Telephone: +52 55 5123.2848 E-mail: xxxxxx.xxxx@xxxxxxxxxx.xxx
Xxxxxxx Xxxxxxx Telephone: +52 55 5123.2870 E-mail: xxxxxxx.xxxxxxx@xxxxxxxxxx.xxx
Xxxxx Xxxxxx Xxxxxx Telephone: +00000000.2814 E-mail: xxxxx.xxxxxx@xxxxxxxxxx.xxx
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XXX XXXX XX XXXXX- XXXXXXXXXX XXX, XXX,
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fl -! ,:;;;~\~~\;y 0 COMMITMENTS z'" /' '\\~' 'l.? InU :J 0;: ,c':"~";' """',\ \ "'x. X X,d j
(;). -,~~.5,.".';\>;;'Y/ H'.1 Banco NaciQoal de Mexico,~ 1\ 'c-,'<c/ ," " /,
integrante del Grupo Financiero $115,625,000,00 ~: ' '" , ,,0'''' ,,Y ",.....,'-" ~~7.~-gi~-' 1\'.. '",/" Banamex '<~~' ' '.~'-:;~,,:; ... >' Banco Santander (Mexico), S,A Instituci6n de BancaMultiple, $25,000,000,00
Grupo Financiero Santander Mexico
Bank of America, N,A $115,625,000,00
Barclays Bank PLC $75,000,000,00 ,
BBV A Bancomer, S,A Instituci6n de Banca Multiple, Grupo Financiero
$115,625,000,00 BBV A Bancomer
BNP Paribas $25,000,000,00
Credit Agricole Corporate and $25,000,000,00
Investment Bank
Deutsche Bank AG, London Branch $25,000,000,00
DZBankAG Deutsche Zentral-Genossenschaftsbank $25,000,000,00
Frankfurt am Main
Export Development Canada $75,000,000,00
Xxxxxxx Xxxxx Bank USA $25,000,000,00
HSBC Banlc USA, NA $115,625,000,00
MIAMI 980072 (2K)
Mizuho Bank, Ltd,
Sumitomo Mitsui Banking Corporation
Sumitomo Mitsui Trust Bank, Limited, New York Branch
The Bank of Nova Scotia
The Bank of Tokyo-Mitsubishi UPJ, Ltd,
Total Commitment
MIAMI 980072 (2K)
$115,625,000,00
$115,625,000,00
$25,000,000,00
$115,625,000,00
$115,625,000,00
US$I,250,000,000
FORM OF NOTE
US$ Dated: \.) .., i!:,:~!;' "":";:~'~ !
, "' 0 l'(;'~'. \ FOR VALUE RECEIVED, the undersigned, COMISION FEDERAL DE 0 o~ ),. \;E~';~~i
ELECTRICIDAD, a decentralized entity of the Federal Government (organismo descentlj£:.€/4!,o> ",0 ,y de fa Administracion Publica Federal) of Mexico (the "Borrower"), HEREBY PROMISE~::;~",,~:#' PAY to the order of (the "Lender") for the account of its Lending Office on the Tennination Date (each as defined in the Credit Agreement referred to below) the principal sum ofUS$ [amount of the Lender's Commitment in figures] or, ifless, the aggregate principal amount of the Advances made by the Lender to the BOTI'ower pursuant to the Credit Agreement dated as of August 26, 2013, among the Borrower, the Lender and the other lenders paIiy thereto, and BBVA Bancomer, SA., Instituci6n de Banca Multiple, Grupo Financiero BBVA Bancomer, as Administrative Agent for the Lender and such other lenders (as amended or modified from time to time, the "Credit Agreement"; the terms defined therein and used but not defined herein being used herein as therein defined) outstanding on the Termination Date.
The Borrower promises to pay interest on the unpaid principal amount of each Advance from the date of such Advance until such principal amount is paid in full, at such interest rates, and payable at such times, as are specified in the Credit Agreement.
Both principal and interest are payable in lawful money of the United States of America to BBVA Bancomer, S.A., Instituci6n de Banca Multiple, Grupo Financiero BBVA Bancomer, as Administrative Agent, at the account of the Administrative Agent maintained at the office ofJP MorgaIl Xxxxx Bank located at New York, New York, ABA No. 000000000, Account No. 000000000, Reference: CFE, Attention: Concepci6n Xxxxxx, in immediately available funds in Dollars. Each Advance owing to the Lender by the Borrower pursuant to the Credit Agreement, and all payments made on account of principal thereof, shall be recorded by the Lender and, prior to any transfer hereof, endorsed on the grid attached hereto which is part of this Note.
This Note is one of the Notes referred to in, and is entitled to the benefits of, the Credit Agreement. The Credit Agreement provides for, among other things, (i) the making of Advances by the Lender to the Borrower from time to time in an aggregate amount not to exceed at any time outstanding the Dollar amount first above mentioned, (ii) the indebtedness of fue Borrower resulting from each such Advance being evidenced by this Note, and (iii) the acceleration of the maturity of such indebtedness upon the happening of certain stated events and the prepayment of the principal of such AdvaI1ces prior to the Telmination Date upon fue terms and conditions therein specified.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
The provisions of Section 8.11 of the Credit Agreement shall apply to this Note, mutatis mutandis.
MlAM19800n (2K)
COMISION FEDERAL DE ELECTRIC i
By:
A-2 MIAMI 980072 (2K)
t'.. GREDlto o ()OJ DE Ot: ~&
Q'i'- P- ~ 00 <:}>(
X .,.v IItTI ' ""('0 Q" m'p <-
" .. ,,!.,, .... , <$I
ADVANCES AND PAYMENTS OF PRINCIPAL ~ REGiSTR/WIT~ ~o f/) ('\ " ~/0 (~-? o~ 0;;
Amonnt of T:npaid ,~ )~" -'1UTORI"I-I'~~ qV Amount of Principal Paid Principal Notation Made ~5 EO ""7 ~."""-o; .... ,,,
Date Advance or Prenaid Balance Bv
A-3 MIAMI 980072 (2K)
FORM OF NOTICE OF BORROWING
BBVA Bancomer, S.A., Institucion de Banca Multiple, Grupo Financiero BBV A Bancomer,
as Administrative Agent for the Lenders party to the Credit Agreement refelTed to below
Xxxxxx Xxxxxx 000, Xxxx 0, Xxx. Xxxxx xx Xxxxxxxxxxx, Xxxxxx, X.X. 11000, Attention: Concepcion ZUiiiga or Xxxxxxxx Xxxxxxxxx
Ladies and Gentlemen:
[Date]
The undersigned, Comision Federal de E1ectricidad (the "Borrower"), refers to the Credit Agreement dated as of August 26, 2013 (as amended or modified from time to time, the "Credit Agreement"; the terms defined therein and used but not defined herein being used herein as therein defined) among the Borrower, the Lenders party thereto and BBV A Bancomer, S.A., Institucion de Banca Multiple, Grupo Financiero BBVA Bancomer, as Administrative Agent for said Xxxxxxx, and hereby gives you notice, irrevocably, pursuant to Section 2.02 of the Credit Agreement that the undersigned hereby requests a Borrowing under the Credit Agreement (the "Proposed Borrowing") as follows:
(i) The Business Day of the Proposed Borrowing is ____ _ 201
(ii) The aggregate amount of the Proposed Borrowing is US $ ____ _
(iii) The initial Interest Period for each Advance made as part of the Proposed Borrowing is [1][2][3][6] month[sJ.
[(iv) The Borrower hereby irrevocably and unconditionally authorizes and instructs the Administrative Agent to transfer an amount in immediately available funds on the date of the
MIil.MI 980072 (2K)
Proposed Borrowing: [$ ] from the proceeds of the Proposed Borrowing and transfer to the account of BBVA Bancomer, S.A., Institucion de Banca Multiple, Grupo Financiero BBV A Bancomer, as administrative agent under the Existing Credit Facility, maintained at JP Xxxxxx Xxxxx Bank N.A., ABA No. 000000000, Account No. 000000000, Reference: CFE, Attention: Xxxxxxxxxx Xxxxxx, as repayment in
(v)
full of the principal in respect of the loans outstanding under the Existing Credit Facility.]!
[After making the transfer and the deduction respectively set ____________ £llo"-'rthi~]2 . e and ection 2.02 a of the Credit
Agreement,] transfer [the remainder of]2 the proceeds of the Proposed Borrowing to the Borrower's account at Citibank, N.A., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx; Account No. 00000000; ABA 000000000.
The undersigned hereby celtifies that the following statements will be true on the date of the Proposed Borrowing:
(A) the representations and warranties contained in Section 4.01 of the Credit Agreement (x) that are qualified by materiality or Material Adverse Effect are correct, true and complete on and as of the date of the Proposed Borrowing, and (y) that are not qualified by materiality or Material Adverse Effect are correct, true and complete in all material respects on and as of the date of the Proposed Borrowing, before and after giving effect to the Proposed Borrowing and to the application of the proceeds therefrom, as though made on and as of such date; and
(B) no event has occurred and is continuing, or would result from such Proposed Borrowing or from the application of the proceeds therefrom, that constitutes a Default.
COMISION FEDERAL DE ELECTRICIDAD
By: Name: Title:
I Include in notice for inHial Borrowing and remove in any subsequent Notices of Borrowing. 2 Include bracketed language in subparagraph (v) in notice for initial Borrowing and remove in any subsequent Notices of Borrowing.
B-2 MIAMI 980072 (2K)
FORM OF ASSIGNMENT AND ACCEPTANCE
, 0
Reference is made to the Credit Agreement dated as of August 26,2013 (as a' dlor c,o,,~,:;; modified from time to time, the "Credit Agreement") among Comision Federal de o~t~f~::;6':'_~~:~ Electricidad, a decentralized entity of the Federal Government (organismo descentralizado a"·'·~'''' Administraci6n Publica Federal) of Mexico (the "Borrower"), the Lenders (as defined in the Credit Agreement) and BBVA Bancomer, S,A, Instituci6n de Banca Multiple, Grupo Financiero BBVA Bancomer, as administrative agent for the Lenders (the "Administrative Agent"), Terms defined in the Credit Agreement and used but not defined herein are used in this Assignment and Acceptance (this "Assignment and Acceptance") with the same meaning,
The "Assignor" and the "Assignee" referred to on Schedule 1 hereto agree as follows:
I, The Assignor hereby sells and assigns to the Assignee, and the Assignee hereby purchases and assumes from the Assignor, in each case as of the Effective Date (as defined below), (i) an interest in and to the Assignor's rights and obligations under the Credit Agreement as of the date hereof equal to the percentage interest specified on Schedule I hereto of all outstanding rights and obligations under the Credit Agreement, and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of the Assignor (in its capacity as a Lender) against any Person, whether Imown or unknown, arising under or in connection with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i) above. After giving effect to such sale and assignment, the Assignee's Commitment and the amount of the Advances owing to the Assignee will be as set forth on Schedule I hereto.
2, The Assignor (i) represents and warrants that 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 adverse claim; [and] (ii) makes no representation or warranty and assumes no responsibility with respect to (A) any statements, warranties or representations made in or in connection with the Credit Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Credit Agreement or any other instrument or document fwnished pursuant thereto or (B) the financial condition of the Borrower or the performance or observance by the Borrower of any of its obligations under the Credit Agreement or any other instrument or document furnished pursuant thereto[; and (iii) [attaches the Note held by it and] requests that the Administrative Agent deliver such Note to the Borrower to exchange for a new Note payable to the order of the Assignor in an amount equal to the Commitment retained by the Assignor after giving effect hereto as specified on Schedule I hereto f
3 Include if the Assignor retains a Commitment and holds and/or requests a Note.
MIAMI 980072 (2K)
~...- 0 ~1;17lt \OP,:if:iGJt; 1/./ 1~1l»J1 f1l>f: bii! '"
.: . d ,~,j~fIfll ''1 < ... i· .. . __ ... f!"~", " ?;, r· , ... r" [8j"""~- ''0''", .;. .~ ffJ. r ~i'-'-·::;:",_ ~ " "ill' I] l~lfl ~ /f/T r:
3. The Assignee (i) confinns that it has received a copy of the Credit Agl .. eW8iiJ;·...!..:.!"-,,~.dii!:!.;l j! together with copies of the financial statements refened to in Section 4.01 thereof and plj;other , 0 documents and information as it has deemed appropriate to make its own credit analysis 'q:)", "10' \O;f~~0 . decision to enter into this Assignment and Acceptance; (ii) agrees that it will, independen .~~ ~~~%~~
--------1witheut·H,,~ianee_upen-the-Aclmillistl'fttive-A:g=t;_the-Assignor-or-any-otherL-enderand-based ~it ~~.-~:,::: ",. .. such documents and infonnation as it shall deem appropriate at the time, continue to malce its own credit decisions in taleing or not taking action under the Credit Agreement; (iii) confinns that it is an Eligible Assignee; (iv) appoints and authorizes the Administrative Agent to talce such action as agent on its behalf and to exercise such powers and discretion under the Credit Agreement as are delegated to the Administrative Agent by the tenns thereof, together with such powers and discretion as are reasonably incidental thereto; (v) if it is acting through a branch, agency or intennediary, represents that the beneficial owner of the payments to be made to it under the Credit Agreement is a Foreign Financial Institution, [and] (vi) agrees that it will perfonn in accordance with their tenns all of the obligations that by the terms of the Credit Agreement are required to be performed by it as a Lender[; and (vii) requests that the Borrower issue and deliver a Note payable to its order in an amount equal to the COimnitment assumed by it pursuant hereto as specified on Schedule I hereto t
4. Following the execution of this Assigmnent and Acceptance by the Assignor and the Assignee [and the consent[s] of [the Borrower and] the Administrative Agent to the transactions contemplated hereby as required under Section 8.07 of the Credit Agreement]5, this Assignment and Acceptance will be delivered to the Administrative Agent for acceptance and recording. The effective date of this Assigmnent and Acceptance (the "Effective Date") shall be as specified on Schedule I hereto.
5. Upon such acceptance and recording by the Administrative Agent, (a) as of the Effective Date, (i) the Assignee shall be a party to the Credit Agreement and, to the extent provided in this Assigmnent and Acceptance, have the rights and obligations of a Lender thereunder and (ii) the Assignor shall, to the extent provided in this Assigmnent and Acceptance, relinquish its rights and be released from its obligations under the Credit Agreement; and (b) from and after the later of the Effective Date and the date of such acceptance and recording, the Administrative Agent shall make all payments under the Credit Agreement and any applicable Notes in respect of the interest assigned hereby (including, without limitation, all payments of principal, interest and commitment fees with respect thereto) to the Assignee. The Assignor and Assignee shall make all appropriate adjustments in payments under the Credit Agreement and any applicable Notes for periods prior to the Effective Date andlor the date of such acceptance and recording directly between themselves.
6. This Assignment and Acceptance shall be governed by, and construed in accordance with, the laws of the State of New York.
7. This Assignment and Acceptance may be executed in any number of counterparts and by different parties hereto in separate counterpmts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same
4 Include if the Assignee requests a Note. 5 Include, as applicable, if slIch consents are required.
C-2 MIAMI 980072 (2K)
~'''''''~~~~''' . ,;o";,~ CRE{1J4t'Q . "Q 0') Df:: 0(: ,>/:I"",
~~:i':v i>- fi:iiil tr('~'f ~(~~ .11 (t"r r ijt! Ii~~ 1 0
(, ·"·-.o!~~li,,,, ' \1\ ,- "'~~'~_''''- '_"._~M_"'.' ___ \
agreement. Deliver" of an executed counterpart of Schedule 1 to this Assignment a', ''E D rr.' ~("nl i'l, p n ii 'J , (J q :1:" q~f'h~ai' J.
Acceptance by telecopier or electronic mail shall be effective as delivery of a manu y ex \;jutll· .. L.,&,,"-E.l counterpmi of tlus Assignment and Acceptance. 'I" '!-1>lJ{Jf
C1iJ cj"(VS'/ . (!, Of-' f"-"; .',off o . iljJ)' "W q' ~f'
_________ ThLWIINESS-WBEREO¥,-tl±~.Assigmll'-and-tM-Assigoo@-haV8-GauseEi-Sehedul ·':~~nl't' ~~~ld.~,,~;'A' Assignment and Acceptance to be executed by their officers thereunto duly authorized as of fie:,:;;''''''';;::/ date specified thereon.
C-3 MIAM19800n (2K)
Schedule I to
Assignment and Acceptance
Assignee's Commitment:
[Assignor's Retained Commitment:
Aggregate outstanding principal amount of Advances assigned:
Principal amount of Advances payable to Assignee:
Principal amount of Advances payable to Assignor:
Effective Date: ______ , 201
US$
US$ __ ]6
US$ __
US$
US$
[NAME OF XXXXXXXX], as Assignor
6 Include if the Assignor retains a Commitment.
MIAMI 980072 (2K)
By: Name: Title:
Dated: _______ , 201
[NAME OF XXXXXXXX], as Assignee
By: Name: Title:
Dated: _______ , 201
Lending Office: [Address]
C-4
Accepted [and Approvedf this __ ~ day of ,201
BBVA BANCOMER, SA, INSTITUCION DE BANCA MULTIPLE, GRUPO FINANCIERO BBVA BANCO MER, as Administrative Agent
By: Name: Title:
[Approved this day of ,201 :]8
COMISION FEDERAL DE ELECTRICIDAD
By: Name: Title:
7 Include if the consent of the Administrative Agent is required. 8 Include if the consent of the Borrower is required.
C-5 MIAMI 980072 (2K)
_________ -"F-'-OuRuMu-'O.'JF"-LOUPCLTNuvIOUJN=NEWYORK COIINSEL-T-D-BORRO'v>-cJl.f'l-HH:-IC+';:-t+Ii-!:Httt-'>---H--
September [_--'''''''''
To the Lenders and the Administrative Agent party on the date hereof to the Credit Agreement referred to below c/o BBVA Bancomer, S.A., Institucion de Banca Multiple, Grupo Financiero BBVA Bancomer Xxxxxx Xxxxxx 000, Xxxx 0, Xxx. Xxxxx xx Xxxxxxxxxxx Xxxxxx, X.X. 00000
Ladies and Gentlemen:
We have acted as special United States counsel to Comision Federal de Electricidad (the "Borrower"), a decentralized entity of the United Mexican States, in connection with the Credit Agreement dated as of August 26,2013 (the "Credit Agreement"), among the Borrower, the lenders party thereto (the "Lenders") and BBV A Bancomer, S.A., Institucion de Banca Multiple, Grupo Financiero BBV A Bancomer, as administrative agent (the "Administrative Agent"). This opinion is furnished to you pursuant to Section 3.01(f)(vi) of the Credit Agreement. Capitalized terms used herein but not otherwise defined have the meanings ascribed to them in the Credit Agreement.
In arriving at the opinions expressed below, we have reviewed an executed copy of the Credit Agreement and the form of note attached as Exhibit A to the Credit Agreement. In addition, we have reviewed the originals or copies certified or otherwise identified to our satisfaction of such other documents, and we have made such investigations of law, as we have deemed appropriate as a basis for the opinions expressed below.
In rendering the opinions expressed below, we have assumed the authenticity of all documents submitted to us as originals and the conformity to the originals of all documents submitted to us as copies. In addition, we have assumed mld have not verified ( a) the accuracy as to factual matters ofthe representations and warranties of the Borrower contained in the Credit Agreement and (b) that any note issued pursuant to the Credit Agreement will conform to the form of note attached as Exhibit A to the Credit Agreement.
MIAMI 980072 (2K)
Based on the foregoing, and subject to the further assumptions qualifications set forth below, it is our opinion that:
" ~ CREDlrO o °OJ DE 0<:&;;, 0'" ,. m O",(/.
;;,<:'qJY mil IS "",''0 " Xxx" XXX
~ Rf.GISlflA[fi~ (1) the Credit Agreement is a valid, binding and enforceable tesmen(-'~~''''-~~-
-------ef,ami-any-net"'if-and-wh0n-isslfea-in-c0I'lfffl'flliJy-with-the-fmm-0f-uctte-attaelW '~~hibit--~~ff-- A to the Credit Agreement and delivered in accordance with the tenns of the Credl ~~~ 4' ITOP \'1 Agreement, will be a valid, binding and enforceable agreement of, the Borrower; and~,,:,,::;:. ........
(2) the Borrower is not required to be registered as an investment company under the U.S. Investment Company Act of 1940, as amended.
Insofar as the foregoing opinions relate to the validity, binding effect or enforceability of any agreement or obligation of the Borrower, we have assumed that the Borrower and each other party to such agreement or obligation has satisfied those legal requirements that are applicable to it to the extent necessalY to make such agreement or obligation enforceable against it (except that no such assumption is made as to the Borrower regarding matters of the federal law of the United States of America or the law of the State of New York that in our experience nonnally would be applicable to general business entities with respect to such agreement or obligation).
(a) Our opinions are subject to applicable banklUptcy, insolvency and similar laws affecting creditors' rights generally and to general principles of equity and such opinions are subj ect to the effect of judicial application of foreign laws or foreign governmental actions affecting creditors' rights.
(b) With respect to Section 8.1 I (a) of the Credit Agreement (i) we express no opinion as to the subject matter jurisdiction of any United States federal court to adjudicate any action relating to the Credit Agreement where jurisdiction based on diversity of citizenship under 28 U.S.c. §1332 does not exist and (ii) we note that the designation of the U.S. federal coillis sitting in the Borough of Manhattan, New York City as the venue for actions or proceedings relating to the Credit Agreement is (notwithstanding the waiver in Section 8 .11 (c) of the Credit Agreement) subject to the power of such courts to transfer actions or proceedings pursuant to 28 U.S.C. §1404(a) or to dismiss such actions or proceedings on the grounds that such a federal court is an inconvenient fOlUm for such an action or proceeding.
(c) We note that by statute New York provides that a judgment or decree rendered in a currency other than the currency of the United States shall be converted into U. S. dollars at ,the rate of exchange prevailing on the date of entry of the judgment or decree. There is no corresponding Federal statute and no controlling Federal court decision on this issue. Accordingly, we express no opinion as to whether a Federal court would award a judgment in a currency other than U.S. dollars or, if it did so, whether it would order conversion of the judgment into U.S. dollars.
X-X-0 XXXX00000x (2K)
/:r-"~ 1f1f ~~. C~EDI~O • (d) Insofar as provisions contained in the Credit Agreement pr~dt~~"OJh~'irV~~{00
indemnification, the enforcement thereof may be limited by public policy conside/fiWJile (STRJ\O O· ~ (e) The enforceability of the waiver of immunities by the Borr . 'tf sm--L~--. __ ---
~~~~~~~-,£"ouJ1.uhui.n Section 8 15 of the CreditAgreementis-subject.to-the.Jimitati=-inlpQS€d- f~ ,,"yo. Foreign Sovereign Irmnunities Act of 1976. 1><fo~~ 4(n-O"'Lf'~:~.j!!f
'4i SECiO ..,,<"~/
The foregoing opinions are limited to the federal law of the United States oi:~~~:-;"-:':"'"- America and the law of the State of New York
We are furnishing this opinion letter to you solely for your benefit in your respective capacities as Lenders and Administrative Agent in connection with the Credit Agreement. This opinion letter is not to be relied on by or furnished to any other person or used, circulated, quoted or otherwise referred to for any other purpose. We assume no obligation to advise you or any other person, or to make any investigations, as to any legal developments or factual matters arising subsequent to the date hereof that might affect the opinions expressed herein.
MIAM19800n (2K)
Very truly yours,
XXXXXX XXXXXXXX XXXXX & XXXXXXXX LLP
By __________________________ _
D-1-3
COMlSION FEDERAL DE ELECTRICID COORDINACION DE ASUNTOS JURlD1COS
FORM OF OPINION - OFFICE OF THE GENERAL COUNSEL OF BORROWER
To the Lenders and the Administrative Agent named below c/o BBVA Bancomer, S.A., Instituci6n de Banca Multiple, Gmpo Financiero BBV A Bancomer,
as Administrative Agent Xxxxxx Xxxxxx 000, Xxxx 0, Xxx. Xxxxx xx Xxxxxxxxxxx, Xxxxxx, XX 00000
September [ ],2013
I am the Gerente de Coordinacion Regional y de Oficinas Nacionales in the office of the general counsel (Abogado General) of Comisi6n Federal de Electricidad ("CFE"), a decentralized entity of the United Mexican States ("Mexico"), and act as such in connection with the Credit Agreement, dated as of August 26, 2013 (the "Credit Agreement"), among CFE (the "Borrower"), the Lenders party thereto (the "Lenders") and BBVA Bancomer, S.A., Instituci6n de Banca Multiple, Gmpo Financiero BBVA Bancomer, as Administrative Agent (the "Administrative Agent"), and in connection with the transactions contemplated thereby. This opinion is furnished to you pursuant to Section 3.01(f)(vii) of the Credit Agreement. Pursuant to (i) the CFE Charter, as amended on May 24,2013 (attached as Xxxxx X) and the Oficio de delegacion defacultades para lafirma de la Opinion Legal (the Official Letter delegating authority to sign the Legal Opinion), dated [e], 2013, signed by the Abogado General ofCFE (attached as Xxxxx XX), I have been duly authorized to deliver this opinion. Capitalized terms used herein but not otherwise defined have the meanings ascribed to them in the Credit Agreement.
In connectiqn with the opinions expressed below, I have reviewed the Transaction Documents and the Commitment Letter as well as all such other documents, agreements and instmments, and such treaties, laws, mles and regulations, as I have deemed relevant or appropriate in connection with the giving of such opinions.
I have assumed, without any independent investigation or verification of any kind, (i) the due authorization, execution and delivery by the parties (other than CFE) of the Transaction Documents and the Commitment Letter, as well as the power and authority and legal right of such parties under all applicable laws and regulations to enter into, execute, deliver and perform their obligations under the Transaction Documents, (ii) the validity,
MIAMI 980072 (2K)
olS.. XXXX,.,..O j>-() O.j DE Of[ ">iJ.
*Q v ~ rliiilil "4/'<, '" ""," ~ ~"o
binding effect and enforceability of the Transaction Documents and the Co i~JltJilSrnADD·~ under the laws of the State of New York, United States of America, (iii) the ~ine~~of-: 0 all signatures (other than the signature of any officer of CFE) and the aut . <$>i:l): o.f all .,o'>~.:Y opinions, documents and papers submitted to me and that all copies of documen '~~~~~S~~"0
-------to-me-are-e(}mpiete-ami-conf-orm-to-the-origimds-ther ..
In connection with the preparation of this opinion, I have examined executed counterparts of the Credit Agreement and the form of Notes and copies certified or otherwise identified to my satisfaction of such other documents as I have deemed necessary to render this opinion and I have made such investigations of Mexicanlaw as I have deemed necessary as a basis for the opinions expressed below.
Based upon the foregoing, I am of the opinion that:
(1) CFE is a duly established and validly existing decentralized public entity of the Federal Government of Mexico (organismo publico descentralizado de fa Administracion Publica FederaT), wholly owned by the federal government of Mexico, validly existing as an independent legal entity under the laws of Mexico, fully qualified and empowered to own its assets and carry on its business and activities in each jurisdiction in which it owns material assets or carries on material business or activities and the CFE Charter and the Electricity Law are in full force and effect.
(2) CFE has full power and authority to execute, deliver and perform any Transaction Document to which it is a party.
(3) The execution, delivery and performance by CFE of the Conmlitment Letter and each Transaction Document to which it is a party have been duly authorized by all necessary corporate, legislative, executive, administrative and other governmental action, including the approval of the Board of Governors (Junta de Gobierno) of CFE, in accordance with the Electricity Law and the CFE Charter and the approval and registration of the Transaction Documents by the Ministry of Finance in accordance with the General Public Debt Law, and will not (i) conflict with or result in a breach or violation of (A) any provision of the Political Constitution (Constitucion Politica) of Mexico or any provision of the Electricity Law, the CFE Charter or other organizational or governing documents of CFE, the public policy of Mexico, generally accepted principles of international law, any law, treaty or agreement binding upon Mexico, rule or regulation or determination of an arbitrator or a court or other Govennnental Authority, in each case applicable or binding upon CFE or any of its property or to which CFE or any of its property is subject or (B) any order or judgment of any Goverrnnental Authority having jurisdiction over CFE or any of its properties or (ii) result in the breach of or cause a default under any Contractual Obligation to which CFE is a party or by which it or any of its assets may be bound.
(4) No authorization or approval or other action by, and no notice to or filing with, any Governmental Authority is required for the due execution, delivery and performance by CFE of any Transaction Document or the COlmnitrnent Letter, except for: (a) the approval of the Board of Governors (Junta de Gobierno) of CFE, (b) the approval and stamping of the Commitment Letter and Transaction Documents, evidencing their
D-2-2 MIAMI 980072 (2K)
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registrati?n with the Ministry of Finance. and (c) provision for payments of a fult,s,.~~~~~\~'/"n8 the CredIt Agreement for penods after FIscal Year 2013 must be mcluded m t li8~~\~'r.>;-"' ~ ;j CFE for such Fiscal Year to be approved by the Mexican Congress on a yearly asis."'The cP.'" approvals and stamping for registration referred to in paragraphs (a) and (b) a Y\>~VtYE A'J,o"'~;G~/
-------lbeen-~btainecl_0f-made_and_aTe-in-fuH-fer~e_and_effeet-em-the_dat~-heree . ,,- :::.~ ~-':"-
(5) The Credit Agreement has been duly executed and delivered by CFE and constitutes a valid and binding agreement of CFE enforceable against CFE in accordance with its tenus and the Notes when executed and delivered will constitute the legal, valid and binding obligations of CFE enforceable against CFE in accordance with their respective tenus subject to concurso mercantil, bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and, in respect of enforcement in Mexico, in accordance with Mexican procedurallUles.
(6) (i) The Credit Agreement constitutes a direct unconditional and general obligation, and (ii) the Notes when executed and delivered in accordance with the ternlS of the Credit Agreement against any payment therefor, will constitute direct unconditional and general obligations, of CFE.
(7) The obligations of CFE under the Transaction Documents rank and will rank in priority of payment, under current law, pari passu with all other unsecured and unsubordinated External Indebtedness of CFE.
(8) There is no pending or, to the best of my knowledge, threatened action, suit, investigation, litigation or proceeding, including any Enviromnental Action, affecting CFE before any Governmental Anthority or any arbitral tribunal, which (individually or in the aggregate) has a reasonable likelihood of having a Material Adverse Effect or purports to affect the legality, validity, enforceability of the Transaction Documents or the consummation of the transactions contemplated hereby.
(9) There is no Material Adverse Change since December 31, 2012.
(10) CFE is subject to civil and commercial law with respect to its obligations under the Transaction Documents and the execution, delivery and performance thereof by CFE constitute private and commercial acts rather than public or governmental acts. Under the laws of Mexico, neither CFE nor any of its property has any immunity from jurisdiction of any court or /i'om legal process (whether through service or notice, attachment prior to judgment, attachment in aid of execution or otherwise), except that under Article 4 of the Federal Code of Civil Procedure of Mexico (C6digo Federal de Procedimientos Civiles) and Articles 1,4 and 7 (and related Articles) of the Electricity Law, (i) attachment prior to judgment and attachment in aid of execution may not be ordered by Mexican courts against the property of CFE and (ii) the generation, transmission, processing, distribution and supply of electric energy is a public service, as well as the undertaking of any constlUction, installation and works required for the planning, operation and maintenance of the national electric system, are reserved to the Mexican Government, through CFE (and, to that extent, assets related thereto are subject to inlmunity).
D-2-3 MIAMI 980072 (2K)
Cf'l.(OI~ 0"" Of.. DE(jO &<1.
Q Q" -~~"Q '<" ~ ~7'~.'t1 ~ Q ~iI\~"E\ ~
(11) The Credit Agreement and the Notes are in proper legal ,~:{ .~~~!f~~~ "C; enforcement thereof against CFE under the laws of Mexico, To ensure the legal ,{a~\\rllb:0.h\!~·:o--~ 8 enforceability or admissibility in evidence of each Transaction Document in ico, ins /'00 not necessary that the Transaction Document be filed or recorded with any cou <\$;!lher .' ~,.c,,!~, '<,~
1.. • • X . ( ,.,.,.., . T _ .".1 'T' • n~ -'i> • Of': A ,IT 0" .-" ---------aaufuoFl1:y-m-c ·8*lGo,%lffiept-taat-hle-",&mrmtlnent-<=tt-el"-afltl-t"le-l-r-aHsaGtlOl1-J7t1Gl'I· ~.~.~~. ;Ac~;;::;;7L-.---
must be stamped by the Ministry of Finance evidencing registration therewith, Wlile' stamping has been obtained and is in full force and effect on the date hereof with respect to those Transaction Documents executed and delivered on or prior to the date hereof) or that any stamp or similar tax be paid, on or in respect of the Credit Agreement or any other document to be furnished thereunder; provided, however, that in the event any legal proceedings are brought in the courts of Mexico, an official Spanish translation of the documents required in such proceedings, including the Credit Agreement, would be required.
(12) To the best of my Imowledge, CFE has filed all material tax returns which are required to be filed by it and has paid all taxes due pursuant to such returns or pursuant to any assessment received by CFE, except where the same is being contested in good faith by appropriate proceedings and as to which CFE maintains adequate reserves. The charges, accruals and reserves on the books of CFE in respect of taxes or other governmental charges are, in my opinion, adequate.
(13) Except for taxes imposed by way of a withholding on interest, fees and connnissions remitted from Mexico, there is no tax, xxxx, impost, deduction, charge or withholding imposed, levied or made by or in Mexico or any political subdivision or taxing authority thereof or therein either (a) on or by viliue of the execution or delivelY of the Transaction Documents or (b) on any payment to be made by CFE pursuant to the Transaction Documents. CFE is pennitted to pay any additional amounts payable pursuant to Section 2.12 of the Credit Agreement.
(14) CFE has complied with all applicable laws, ordinances, rules, regulations and requirements of Governmental Authorities except (i) where the necessity of compliance therewith is being contested in good faith by appropriate proceedings and against which adequate reserves are being maintained in accordance with IFRS or (ii) where the failure to comply, individually or in the aggregate, has no reasonable likelihood of having a Material Adverse Effect.
(15) CFE has reasonably concluded that its expected liabilities and costs relating to Environmental Laws, including the costs of compliance therewith, are unlikely to have a Material Adverse Effect.
(16) The Consul General of Mexico (N ew York office) has been duly appointed under the laws of Mexico as process agent for CFE to receive for and on its behalf service of process with respect to any legal action, suit or proceeding arising out of the Transaction Documents under which it has been appointed to act in such capacity.
(17) The choice of New York law to govern each Transaction Document that so provides is a valid choice of law. Such choice of law will, subject to the
D·2·4 MLAM1980072 (2K)
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9.· ~.'$~. <1'( a ~\t., ,"'~---z Ci' \!'J':;::c"'-"" ~\ ~ c;, determinations and qualifications refelTed to below, be honored by the courts of such courts will construe each such document in accordance with, and will trea document as being governed by, the law of the State of New York.
::J,I!i~~'.~. "'~\\~~\~ XIC, ' ,.",...... 0 ~f:.. ~:t', ,!\'~?i • ..-".,.~...... /,J ~
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'<f' C' I» ()f:~ Al)iO\ ::;"-.0 ____________ I~18~-Neither.-the.Administrati:v.e-AgenLno1'-any-Lendeic(illller.-than_aL ITO ".C ,">'"
that is a Mexican entity) is or will be deemed to be residing, domiciled, or carrying on ;--.::¢ business in Mexico by reason only of the execution, delivelY, performance or enforcement of the Transaction Documents to which the Administrative Agent or any such Lender is a PaIty,
(19) It is not necessmy by reason of execution of the Transaction Documents to which the Administrative Agent or any Lender (other than a Lender that is a Mexican entity) is a party or the perfonnance of any obligations thereunder, that the Administrative Agent or any such Lender should be licensed, qualified or otherwise entitled to carry on business in Mexico,
(20) No foreign exchange controls are cUlTently in effect in Mexico and no foreign exchange control authorizations by any Governmental Authority in Mexico are cUlTently required for the execution, delivery and perfo1Tilance of any Transaction Documents and tile transactions contemplated thereby,
(21) The submission by CFE to any jurisdiction of any New York state court or federal court of the United States of America sitting in the Borough of Manhattan, New York City, and any relevant appellate court, contained in the Credit Agreement is valid, binding aIld enforccablc against CFE, and any judgmcnt of any such court, obtained after service of process in the ma1lller specified in the Transaction Documents, assuming such service is made in accordance with the laws of the jurisdiction of the judgment-rendering court, would be enforceable in the courts of Mexico without further review on the merits; provided that enforcement of any such judgment by a Mexican court will be subj ect to a prior detennination by the Mexican court that: (a) such judgment is obtained in compliance with legal requirements of the jurisdiction of the court rendering such judgment and in compliance with all legal requirements of the Transaction Documents; (b) such judgment is strictly for the payment of a certain sum of money, based on an in personam (as opposed to an in rem) action; ( c) service of process was made personally on CFE or the Process Agent; (d) such judgment does not contravene Mexican law, public policy of Mexico, international treaties or agreements binding upon Mexico or generally accepted principles of international law; (e) the applicable procedure under the laws of Mexico with respect to the enforcement of foreign judgments (including issuance of a letter rogatory by the competent authority of such jurisdiction requesting enforcement of such judgment and the celtification of such judgment as authentic by the cOlTesponding authorities of such jurisdiction in accordance with the laws thereof) is complied with; (f) such judgment is final in the jurisdiction where obtained; (g) the cause of action in respect of which such judgment is rendered is not the same cause of action that gave rise to a legal proceeding aIllong the same paIties pending before a Mexican court; and (h) the courts of such jurisdiction recognize the principles of reciprocity in c01lllection with the enforcement of Mexican judgments in such jurisdiction.
The foregoing opinions are subject to the following qualifications:
X-0-0 XXXXx0Xxxx (0X)
~f~ . ...~. eRE.DI'O AI
.. 0 ~oj DE- °tv '($> A' $"?- \'" f'-... ". e.~~." Q1 </("\
,.. <f y-v ~~~l 1-. 0 (a) enforcement of the Transaction Docwnents and the C' ·\~l1l.entl!l';lt.: .. ,,~:.
Letter may be limited by concurso mercantil, banlauptcy, insolvency, '. u~a'fa~~;: \ !; . ": n reorganization, moratorium and other similar laws of general application rei ' g tbij.'tlt·/··'··· affecting the rights of creditors generally; '\\, ~ 0",
~0,\>.C'!-. (b) in any proceedings brought in the courts of Mexico fo ">; . e
""""' ...... " enforcement of the Transaction Docwnents, a Mexican court would apply Mexicai'l." procedural law in such proceedings;
(c) in the event that proceedings are brought in Mexico seeking performance of the obligations of CFE in Mexico, pursuant to the Mexican Monetary Law, CFE may discharge its obligations by paying any sum due in cWTency other than Mexican currency, in Mexican currency at the rate of exchange prevailing in Mexico on the date when payment is made; therefore Section 8.12 of the Credit Agreement may not be enforceable in Mexico;
(d) provIsIOns of the Transaction Documents granting discretionary authority to a party thereto cannot be exercised in a manner inconsistent with relevant facts nor defeat any requirement of a competent authority to produce satisfactory evidence as to the basis of any deterrnination; in addition, any notice or celiificate purporting to be conclusive and binding may be contested in a Mexican court by the party in respect to which it purports to be conclusive and binding;
(e) in any bankruptcy proceeding initiated in Mexico against CFE pursuant to the laws of Mexico, labor claims, claims of tax autboritieR for unpaid taxes, Social Security quota, Workers' Housing Fund quota and Retirement Fund quota will have priority over claims of any party to the Transaction Docwnents (or any permitted assignee thereof);
(f) with respect to provisions contained in the Transaction Documents and the Commitment Letter in connection with service of process, it should be noted that service of process by mail does not constitute personal service of process under Mexican law and, since such service is considered to be a basic procedural requirement, if for purposes of proceedings outside Mexico service of process is made by mail, a final judgment based on such process would not be enforced by the courts of Mexico; and
(g) Mexican law does not pennit the collection of interest on interest and, consequently, the provIsIOns in such regard in the Transaction Docwnents may not be enforceable in Mexico.
This opinion is based exclusively on Mexican law. I express no opinion with regard to the law of any jurisdiction outside Mexico.
This opinion may not be used or relied upon by or published or communicated to any person or entity other than the addressee hereof for any purpose whatsoever without my prior written consent in each case.
MIAMI 9800n (2K)
Very truly yours,
D-2-6
Comisi6n Federal de Electricidad Xxxxxxx 000 - Xxxx 0 Xxxxxx X.X. XX 00000
Attn: Xxxxxx Xxxxx Xxxxxxx Managing Director of Finance
Gentlemen:
EXECUTION VERSION
Fee Letter
This letter is delivered to you in connection with the Credit Agreement of even date herewith (the "Credit Agreement') among Comisi6n Federal de Electricidad, as borrower (the "Borrower" or "CFE"), the financial institutions parties thereto as lenders and BBV A Bancomer S.A., Instituci6n de Banca Multiple, Grupo Financiero BBVA Bancomer, as administrative agent (the "Administrative Agent") regarding a revolving credit facility in an aggregate principal amount of US$I,250,000,000.00 (the "Facility"). Unless otherwise defined herein, capitalized terms shall have the same meanings as specified therefor in the Credit Agreement. In connection with, and in consideration of the agreements contained in, the Credit Agreement, you agree with the Administrative Agent as follows:
1. Administration Fee. You will pay an annual administration fee (the "Administration Fee") of U.S. $18,000.00 plus applicable Value Added Tax (lmpuesto al Valor Agregado) to the Administrative Agent, for its own account as administrative agent for the Lenders under the Facility. The Administration Fee shall commence to accrue on the date of the initial Borrowing, and shall be payable in advance on such date and on each anniversalY of the date hereof, until the Facility is terminated and all amounts thereunder shall have been indefeasibly paid in full in cash in U.S. Dollars in accordance with the teruls thereof. The Administrative Agent reserves the right to review and adjust the annual Administration Fee in consultation with you at the time a material amendment to the Credit Agreement is requested, with any adjustment effective on the date of such material amendment. The Borrower shall make payment under this Fee Letter no later than 1:00 p.m. (New York time) on the date due in U.S. Dollars to the account of the Administrative Agent, as designated in writing to the Borrower.
MIAMI 983620 vG
Comisi6n Federal de Electricidad
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August 26,2013
( _~) ,;',,',"-'''''''' ,',','"'''''''',,-' 0 "1 _. I"; 0,,,,,,, : ' "'-~'Yf',:,-:" ,._ r
All of the fees described above in this letter agreement shall be fully '~Aed u 1,~i~f/6i;~;:/ :;; » ---------jbesmmllg-due-frfl(!-l'ayabie-in-aeeordanee-with-the-terms-hereuf;-Nha!t-trn-nomefun l1,t1or;,Ji'; ('~ 0';
reason whatsoever and shall be in addition to any other fees, costs and expenses payab ;.e!lrsuai;\f,(iW\~d~<,,, to the Facility, All fees received hereunder may be shared among the Administrative Ag~~J.1~"\ \ its respective affiliates, as the Administrative Agent may determine in its sole discretion, -.~ .• -
All fees payable hereunder shall be paid in cash in U,S, Dollars, in immediately available funds, To the fullest extent permitted by law, the Borrower shall make all payments hereunder without set-off and regardless of any defense or counterclaim, including, without limitation, any defense or counterclaim based on any law, rule or policy which is now or hereafter promulgated by any governmental authority or regulatory body and which may adversely affect the Borrower's obligation to make, or the right of the Administrative Agent to receive, such payments,
2. Confidentiality. By entering into this Fee Letter, the parties agree that tills Fee Letter is for the parties' confidential use only and that neither its existence nor the terms hereof will be disclosed by any party to any person other than (i) by any party as required or requested by any applicable supervisory or regulatory agency or governmental authority having jurisdiction over any party and (ii) by any party to such party's officers, directors, employees, accountants, attorneys and other advisors, agents and representatives, and then only on a confidential and "need to know" basis in connection with the transactions contemplated under tile Credit Agreement (for the avoidance of doubt, this Fee Letter shall not be disclosed to any Lender or prospective lender in the Facility); provided, however, that a party may disclose the existence and terms hereof to the extent required, in the opinion of such pruiy' s counsel, by applicable law, rules or regulations or by an order of a court or governmental agency of competent jurisdiction, or in connection with any subpoena or in the course of any litigation or proceeding (administrative, regulatory or otherwise) with respect to the enforcement or defense of any claim against any of the parties hereto or in connection with the exercise of remedies in connection with this Fee Letter. Each party's obligations under this Section 2 shall survive the termination of this Fee Letter.
3. Miscellaneous. This letter agreement may not be amended or any proVISIOn hereof waived or modified except by an instrument in writing signed by each of the parties hereto,
Tills letter agreement may be executed in any number of counterparts, each of which shall be an original ruld all of which, when taken together, shall constitute one agreement Delivery of an executed counterpart of a signature page of this letter agreement by facsimile or other customary means of electronic transmission shall be effective as deliveIY of a manually executed counterpart of this letter agreement
[Remainder of this page intentionally left blank]
2
MIAMI 983620 v6
Signature Page _____________________ ------<F@i>-bM!"f----------~, ~""~CC-TI~\.-" 1''':7,(5''11--
!\~.)/<;:< P'n .. ,6~ 0 If the foregoing is in accordance with your understanding, please sign an t'.J:~(ftllifmi§~;~'~~/.
letter agreement to us. "''':::::..''':;;=.:.~
Very truly yours,
BBV A BANCOMER S.A., INSTITUCION DE BANCA MULTIPLE, GRUPO FINANCIERO BBVA BANCOMER,
BY~ Nam :_....h.!.D=---___ _ Title:_ /\,1 ~_EACI __ _
0('/ ZLt~ !?lA _ J R/ U-..J F-HJt __
ACCEPTED AND AGREED TO AS OF THE DATE FIRST ABOVE WRITTEN, BY:
COMISION FEDERAL DE ELECTRICIDAD
By: Name: Title:
This signature page relates to that certain Fee Letter dated _,2013, between Comisi6n Federal de E1ectricidad, as Borrower, and BBVA Baucomer, S.A., Instituci6n de Banca Multiple, Grupo Financiero BBVA Bancomer, as Administrative Agent.
[Signature Page to CFE 2013 Administrative Agent's Fee Letter]
Signature Page Fee Letter
If the foregoing is in accordance with your understanding, please sign letter agreement to us.
Very truly yours,
BBVA BANCOMER S.A., INSTITUCION DE BANCA MULTIPLE, GRUPO FINANCIERO BBVA BANCOMER,
By: _____________ _ Name: _____________ _ Title: ____________ _
By: _____________ _ Name: _____________ _ Title: _____________ _
ACCEPTED AND AGREED TO AS OF THE DATE FIRST ABOVE WRITTEN, BY:
By:. __ =-----+-__ --, __ \\... Name:' r 6'· Title: (!riJ
This signature page relates to that certain Fee Letter dated f/ {j(z ~,2013, between Comisi6n Federal de Electricidad, as Borrower, and BBVA Bancomer, S.A., Instituci6n de Banca Multiple, Grupo Financiero BBVA Bancomer, as Administrative Agent.
[Signature Page to CFE 2013 Administrative Agent's Fee Letter]
Com is ion Federal de Electricidad Xxxxxxx 000 - Xxxx 0 Xxxxxx X.X. XX 00000
Attention: lIc XxxxxXxxx Xxxxxxx Xxxxxx, Director de Flnanzas
Gentlemen:
EXECUTION VERSION
July 11, 2013
We refer to the commitment letter dated the date hereof (the "Commitment Letter") among Comisi6n Federal de Electricidad (the "Borrower' or the "Company"), the Xxxxx and the Lead Arrangers and Joint Bookrunners. This letter agreement is the Fee Letter referred to in the Commitment Letter. The capitalized terms used herein without definition have the meanings given to them in the Commitment Letter. By accepting the Commitment Letter, the Company agrees to pay the non-refundable fee set forth below in accordance with the terms of this Fee Letter and the Commitment Letter:
1. Arrangement Fee: To the Lead Arrangers, an Arrangement Fee of 95 bps of the Facility Amount, payable to the Administrative Agent for the benefit of the Lead Arrangers on the earlier of (a) the date of the initial borrowing under the Facility, by deduction from the proceeds payable to the Borrower thereunder, or (b) three business days after the Closing Date, such fee to be allocated equally among the Lead Arrangers and shared with the Lenders as determined by the Lead Arrangers dunng the syndication of the Facility (it being understood that the Borrower shall not be responsible to pay any upfront or arrangement fee to any Lender other than the 95 bps payable to the Administrative Agent, for the benefit of the Lead Arrangers, pursuant hereto).
The fee described above in this letter agreement shall be fully earned upon becoming due and payable in accordance with the terms hereof, and shall be in addition to any other costs and expenses payable pursuant to the Cornmitment Letter or the definitive documentation for the Facility; provided, however, that the payment of such fee shall be subject to the prior approval and registration of the Facility and this Fee Letter by and with Hacienda. You agree that, once paid, the fee or any part thereof payable hereunder and under the Commitment Letter will not be refundable under any circumstances. Payment of the foregoing fee will not be subject to counterclaim or set-off for, or be otherwise affected by, any claim or dispute relating to any other matter. All fees received by a Lead Arranger hereunder may be shared by such Lead Arranger with its affiliates as such Lead Arranger may determine in its sale discretion.
By accepting delivery of this Fee Letter, the Company agrees that this Fee Letter is for the' Company's confidential use only and that neither its existence nor the terms hereof will be disclosed by the Company to any person other than representatives of the Company's shareholders and the Company's officers, directors, employees, accountants, attorneys and other advisors, and then only on a confidential and "need to know" basis in connection with the transactions contemplated by the Commitment Letter; provided, however, that the Company may disclose the existence and the terms hereof to governmental authorities having jurisdiction over the Company, but only to the extent required, in the opinion of the Company's counsel, by applicable law. The Company's obligaticns hereunder with respect to confidentiality shall survive the termination of the Commitment Letter and this Fee Letter.
It is understood that this Fee Letter shall not constitute or give rise to any obligation on the part of any Lead Arranger or Bank to provide or arrange any financing; such an obligation will arise only under the
MIAlvri ')7'JIH2 (2)-;)
~~=::,~", //";, ;) 'C-. CI-~ I:" 0/;:,""", r:,\,t'" i'O": t~~" ,": () /.~
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r '~';}'i" f -, (~'l" ;~"1 ; I:¥ /-:,: (' '" " 0 Commitment Letter if accepted in accordance with its terms. This Fee Letter may not be signEltL:~Y 'YQ~,; , without the prior written consent of each of the Lead Arrangers (and any purported assignm twithoufsu-eh' consent shall be null and void). This Fee Letter may not be amended or any provision he \eof Waived or
--------,modified except by xxx xxxxxxxxxx In writing slgnea y eac 0 e parties hereto. THIS I?!" LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF t~~.STATE' ' OF NEW YORK. This Fee Letter may be executed in any number of counterparts, each of which"Sh@JP2e. an original and all of which, when taken together, shall constitute one agreement Delivery of an executed counterpart of a signature page of this Fee Letter by facsimile transmission or other electronic transmission (i.e., a "pdf' or "tin shall be effective as delivery of a manually executed counterpart of this Fee Letter.
Please indicate the Company's acceptance of the provisions hereof by signing the enclosed copy of this Fee Letter and returning 'it to (i) Xxxxxxx Xxxxxx, Managing Director, Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx Incorporated, Bank of America Tower, One Xxxxxx Xxxx NY1-100-08-00, Xxx Xxxx, XX 00000, Email: xxxxxxx.xxxxxx@xxxx.xxx, (ii) Xxxx Xxxxx, Head of Corporate Lending Mexico, BBVA Bancomer SA Instituci6n de Banca Multiple, Grupo Financiero BBVA Bancomer, Xxxxxx Xxxxxx 000, Xx xx 0, 00000 Xxxxxx OF, Fax: (00-00) 00 00 00 00, Email: x.xxxxx@xxxx.xxx, (iii) Xxxxxx Xxxxxxx Xxxx, Managing Director, The Bank of Tokyo-Mitsubishi UFJ, Ltd., 1251 Avenue of the Americas, Xxx Xxxx, XX 00000, Fax: 000-000-0000, Email: xxxxx@xx.xxxx.xx, (iv) Xxxxx Xxxxxxxx, Managing Director, Citigroup Global Markets Inc., 000 Xxxxxxxxx Xxxxxx, Xxxxx Xxxxx, Xxx Xxxx, XX 00000, Fax: (000) 000-0000, Email: xxxxx.xxxxxxxx@xxxx.xxx, (v) Xxxxxx X. Xxxxx, Managing Director, HSBC Securities (USA) Inc., 000 Xxxxx Xxxxxx, XX, 00000, Fax: 000-000-0000, Email: xxxxxx.x.xxxxx@xx.xxxx.xxx, (vi) Xxxx Xxxxx, Syndicated Finance, Mizuho Bank, Ltd., 1251 Avenue of the Americas, Xxx Xxxx, XX 00000, Fax: 000.000.0000, Email: xxxx.xxxxx@xxxxxxxxxx.xxx. (vii) Xxxxxxx Xxxxxxx, Associate Director, The Bank of Nova Scotia, Xxxx Xxxxxx Xxxxx Xxxxxxx 0, Xxxx 0 Xxx. Xxxxx xx Xxxxxxxxxxx, X.X. 00000, Xxxxxx OF, Mexico, Email: xxxxxxx.xxxxxxx@xxxxxxxxxx.xxx and (viii) Xxxx Xxxxx, Director & Team Leader, Corporate & FI Latin Xxxxxxx Xxxxxxxxxxx, Sumitomo Mitsui Banking Corporation, 000 Xxxx Xxxxxx 0xx Xxxxx, Xxx Xxxx, XX, 00000, Fax: 000-000-0000, Email: xxxxxx@xxxx-Xx.xxx at or before 5:00 p.m. (New York City time) on July 11, 2013, the time at which each of the Xxxxx' and the Lead Arrangers' and Joint Bookrunners' commitments hereunder (if not so accepted prior thereto) will automatically terminate without further action or notice and without further obligation to the Company. If the Company elects to deliver this Fee Letter by fax or other electronic means, please arrange for the executed original to follow by next-day courier.
[Remainder of this page intentionally left blank]
MIAMI 'J7l)IH2 (21':) 2
Very truly yours,
By: _--==~:::----L _____ _
Name:
Title:
MIAMI 979182 (2K)
Xxxxxxx Xxxxxx Managing Director
Name:
Title: Xxxxxxx Xxxxxx Managing Director
BBVA BANCOMER SA, INSTITUCI6N DE BANCA MOL TIPLE, GRUPO FiNANCIERO BBVA BANCOMER !
By: ----lH--',.-~cc-_\,-----_'r_- Name: 1hhLo'\ en Title: ff1~,V\b,,/\ In fa .~
'<~I'
MIAMI 979182 (2K)
BBVA SECUFjITIES INC.
By:
Name:
Title:
BBVA BANCOMER SA, INSTITUCION DE BANCA MULTIPLE, GRUPO FINANCIERO BBVA BANCOMER
By: __________ _
Name:
Title:
By: __________ _
Name:
Title:
MIAMI 979182 (2K)
J
BBVA SECURITIES'INC,>
By: -'---z:<2-'-------,----"~ Name: \"IJ'o-.) r;c;.\D Title: flU(~"\~
, , "
_ _____ ----,;;::--====~-+f-.--'tf-~!2.!.'ljjJJJ FJ, LTD.
By:
Name:
Title:
~~m~e: ~,14;se:(~~o~ J, XxXXXXXX 1
Title: M COO anaginl"lO' K ., m~ctor
MIAMI 979 J 82 (2K)
CITIGROUP GLOBAL MARKETS INC.
y:
Name:
Title:
MIAMI 979182 (2K)
XXXXX XXXXXXXX Managing Director
HSBC BANK USA, N.A. HSBC SECURITIES (USA) INC.,
By: By: ~ame:
Title: t1 D
MLAMI979182 (2K)
MIZUHO BANK, LTD.
Title: Deputy General Manager
MIAMI 979182 (2K)
THE BANK OF NOVA XXXX /
By: Nam-e-:----~----~~~--- Ie:
MJAJI..:II979182(2K}
.- _./? By· /-
Name:
Title: XXXXXXXX XXXXXX
MANAGING DIRECTOR
:MJAMi979182 (2K)
As Administrative Agent
By: --------~~~----
Name:
Title:
By: -----f----1W'l!?---------- Name:
Title:
MIAMI 979182 (2K)
ACCEPTED AND AGREED on July 1L 201 . COMISI6N FE L DE ELECTRICIDAD
~-~~y~~~~------~~--~- 'I::..... Name: I"> CO S'/"I-l'\?))eo
Title:
This signature page relates to that certain Fee Letter dated July _, 2013, between and among Comisi6n Federal de Electricidad, as borrower, Bank of America, N.A., BBVA Bancomer SA Instituci6n de Banca Multiple, Grupo Financiero BBVA Bancomer, The Bank of Tokyo-Mitsubishi UFJ, Ltd., Citigroup Global Markets Inc., HSBC Bank USA, NA, Mizuho Bank, Ltd., The Bank of Nova Scotia and Sumitomo Mitsui Banking Corporation, (or their respective affiliates), as lead arrangers, bookrunners and lenders.
MIAMI 979182 (2K)
XxxxxxxXx Xxxxxxx xx Xxxxxxxxxxxx
Xxxxxxx 000 - Xxxx 0 Xxxxxx X,X, XX 00000
Attention: Lic. Xxxxxxxxx Xxxxxxx Xxxxxx Director de Finanzas
Commitment Xxxxxx for Comisi6n Federal de Electricidad US $1,250,000,000 Senior Unsecured Revolving Credit Facility
EXECUT[ON VERSION
July 11, 2013
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Each of Bank of America, NA, BBVA Bancomer SA [nstituci6n de Banca Mu[tip[e, Grupo"i'f"!iY.l1:ts~ BBVA Bancomer ("BBVA Bancomer"), The Bank of Tokyo-Mitsubishi UFJ, Ltd. ("BTMU"), Citigroup G[oba[ Markets Inc. ("CGM[" together with any of its affiliates and/or subsidiaries as may be appropriate to fulfill its obligations hereunder, including Banco Nacional de Mexico, SA, integrante del Grupo Financiero Banamex, Acciones y Valores Banamex, SA Casa de Bolsa, Citibank, NA, Citicorp USA, Inc., Citicorp North America, Inc. and/or any of their affiliates and/or subsidiaries, hereinafter referred as "Citi"), HSBC Bank USA, NA, Mizuho Bank, Ltd, ("Mizuho"), The Bank of Nova Scotia ("Scotiabank") and Sumitomo Mitsui Banking Corporation ("SMBC") (collectively, the "Xxxxx") is pleased to inform Comisi6n Federal de Electricidad (the "Borrower" or the "Company") of its several, but not joint, commitment to provide up to US$156,250,000 (equal to 1/8) of the entire principal amount of a US$1 ,250,000,000 Senior Unsecured Revolving Credit Facility (the "Facility"), subject to the terms and conditions of this lelter and Annex I (collectively, this "Commitment Letter"). In addition, each of Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx Incorporated, BBVA Securities Inc., BTMU, Citi, HSBC Securities (USA) Inc., Mizuho, Scotiabank and 5MBC (collective[y the "Lead Arrangers" and "Joint Bookrunners") is pleased to inform the Company of its several, but not joint, commitment to act as Lead Arranger and Joint Bookrunner for the Facility, subject to the terms and conditions of this Commitment Letter. BBVA Bancomer is also pleased to inform the Company of its commitment to act as Administrative Agent for the Facility, subject to the terms and conditions of this Commitment Letter.
Section 1. Conditions Precedent Each of the Xxxxx' and Lead Arrangers' commitment hereunder is subject to: (i) the completion of a due diligence review by each of the Lead Arrangers and the Xxxxx of the Borrower and its subsidiaries (if any), including their assets, liabilities (including contingent liabilities) and businesses, in scope and with results satisfactory to each of the Lead Arrangers and the Xxxxx in its sole and individual discretion: (ii) each of the Lead Arrangers' and the Xxxxx' receipt of its final internal credit approval: (iii) each of the Lead Arrangers' and the Xxxxx' satisfaction that prior to and during the syndication of the Facility there shall be no competing offering, placement or arrangement of any syndicated bank financing by or on behalf of the Borrower or any of its subsidiaries (if any): (iv) the preparation, execution and delivery of mutually acceptable loan docurnentation (the "Loan Documentation") in form and substance satisfactory to each of the Lead Arrangers and the Xxxxx on or before August 9, 2013, and consistent with the Summary of Terrns and Conditions in Annex I (the "Term Sheet"): (v) the absence of (A) any event, change or condition that, individually or in the aggrega:e, has had or could reasonably be expected to have a material adverse effect on the business, condition (financial or otherwise), operations, performance, properties or prospects of the Company and its subsidiaries, taken as a whole since December 31, 2012 and (B) any circumstance, change or condition in the loan syndication, financial or capital markets generally that, in the reasonable judgment of any of the Lead Arrangers or the Xxxxx, could be expected to materially impair syndication of the Facility, and (C) any disruption or adverse change in the financial, banking or capital markets of Mexico or in the market for loans to Mexican obligors that, in the reasonable judgment of any of the Lead Arrangers or the Xxxxx, could be expected to materially impair the syndication of the Facility: (vi) the accuracy and completeness in all material respects of all representations that the Company or any of its subsidiaries makes to any of the Lead Arrangers and the Xxxxx (unless those representations are already qualified as to materiality, in which case, it shall be the accuracy and completeness in all respects) and all information that the Company or its subsidiaries furnish to any of the Lead Arrangers and the Xxxxx: (vii) the receipt of any and all governmental and other approvals of the Facility, including the
approval from the Board of Governors (Junta de Gobiemo) of the Company in accordance WitJ;i;ttfB~~le~,~::::: Electric Utility Law (Ley del Servicio Publico de Energia Electrica) and the Company's C;J'L'i!ifle"~~dth~'!!~ approval and registration with the Ministry of Finance and Public Credit (Secretaria de Ha<J1liJi8a'rRrBdit6'i''i'(~ Publico) ("Hacienda") in accordance with the General Public Debt Law (Ley General d '!J~xxxXx Pl),ljlica); '~:, 0 I; (viii) the Company executing and deliverin this Commitment Letter and ',', ,,,,"'_._'. "'::~ Letter") dated the date hereof and delivered herewith with respect to the Facility on or beibre:cJIJJ.(11 i ,?01~i' ,',:! ~ ';: (ix) your compliance with the terms of this Commitment Letter and the Fee Letter andl~) fhEj"[Sl:lti;S.!§c::tiOD,,:".,',::i, of the other conditions set forth or referred to in the Term Sheet to the reasonable satl${astiOr'fol each of J? ,7 ' the Lead Arrangers and the Xxxxx. \~' (-?;..~ ~i'~)'
01' o~ _ c~ ?0r) Section 2. Commitment Termination. Each of the Xxxxx' and Lead Arrangers' commitmen'~"~9'Ci'er(W~I{oi}Ji automatically terminate without further action or notice and without further obligation to the com1';~J:i.y,:'1!J:J;t6"~,,, date (the "Commitment Termination Date") that is the earlier of (a) the date the Loan Documentation becomes effective, and (b) August 9, 2013. Before the Commitment Termination Date, (i) each of the Xxxxx and Lead Arrangers may terminate its respective commitments hereunder if any event occurs or information becomes available that, in its judgment, results in the inability to satisfy any condition set forth in Section 1 and (ii) the Commitment Termination Date may be extended by a written amendment to this Commitment Letter, executed by the Lead Arrangers, the Xxxxx and the Company. For the avoidance of doubt, this Section 2 is not, and shall not be construed as, an agreement by any party hereto to an extension of the Commitment Termination Date; such agreement shall be contained in a written amendment as specified in clause (ii) above,
Section 3, Syndication, Each of the Lead Arrangers reserves the right, before or after the execution of the Loan Documentation, to syndicate all or a portion of its or its affiliated Sank's commitment to existing lenders and to one or more other financial institutions identified by the Lead Arrangers in consultation with the Company that will become parties to the FaCility pursuant to a syndication process to be managed by the Lead Arrangers (the Sanks, together with any other such lenders, the "Lenders"), The Lead Arrangers will manage all aspects of the syndication in consultation with the Company, including decisions as to the selection of prospective Lenders, the timing of all offers to potential Lenders, the determination of the amounts olfered to potential Lenders, the acceptance of commitments of the Lenders and the compensation to be provided to the Lenders (provided that such aggregate compensation does not exceed the amount contemplated in this Commitment Letter and the Fee Letter),
The Company shall take all action as the Lead Arrangers may reasonably request to assist the Lead Arrangers in forming a syndicate acceptable to the Lead Arrangers and the Company. The Company's assistance in forming such a syndicate shall include but not be limited to (i) making management and representatives of the Company available to participate in information meetings with potential Lenders at such times and places as the Lead Arrangers may reasonably request; (ii) using the Company's best efforts to ensure that the syndication efforts benefit materially from the Company's existing lending relationships; (iii) providing the Lead Arrangers with all information reasonably deemed necessary by the Lead Arrangers to successfully complete the syndication; and (iv) assistance in the preparation of confidential information memoranda for the Facility and other marketing materials to be used in connection with the syndication, The Company agrees, at the request of the Lead Arrangers, to assist in the preparation of a version of the confidential information memorandum and other marketing materials and presentations to be used in connection with the syndication of the Facility consisting exclusively of information and documentation that is either publicly available or not material with respect to the Company or its subsidiaries for purposes of foreign, United States Federal and state securities laws (all such information and documentation being "Public Lender Information"). Any information and documentation that is not Public Lender Information is referred to herein as "Private Lender Information", The Company further agrees that each document to be disseminated by the Lead Arrangers to any Lender in connection with the Facility will, at the request of the Lead Arrangers, be identified by the Company as either (i) containing Private Lender Information or (ii) containing solely Public Lender Information, Prior to distribution of a confidential information memorandum for the Facility and other marketing materials to prospective Lenders, you shall provide us with a customary letter authorizing the dissemination thereof and, if such confidential information memorandum and marketing materials are intended to contain Public Lender Information, confirming the absence of material non'public information from such confidential information memorandum and marketing materials,
To facilitate an orderly and effective syndication of the Facility, the Company agrees that until the earlier of the termination of the syndication (as determined by all of the Lead Arrangers) and the execution of the
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Loan Documentation, the Company will not, and will not permit any of its affiliates to, C rSY8~i"ate'orenter '",'0 into, or attempt to syndicate or enter into, a loan facility or (ii) announce or authorize t aAnQunGem~nt'of the Company's agreement to borrow under a loan facility, regardless of whether such f ilit,\' is 'a' bil<iteralQr "::~ a syndicated facility, or (iii) engage in discussions conceming a loan facility with the Co ,parlj( as borrower, or the syndication thereof (including in each case any renewals thereof) exclusive \tID "8 er of an,' '" intemational or domestic bond or securities offering), without the prior written consent of 'A'Ai4blDh~Lg,GI,\~~)0v Arrangers and the Xxxxx, such consent not to be unreasonably withheld; provided that, the I;Qlltlm,Y:6n!,~~" its subsidiaries may engage in any of the activities specified in the immediately preceding iiaus~" (i) through (iii) with respect to (a) any loan or credit facility provided directly by, or substantially guaranteed or insured by, an export credit agency, (b) loans or credit facilities denominated in any currency in an aggregate principal amount not to exceed the equivalent of US$50,OOO,OOO and (c) bilateral loans or credit facilities between (1) the Company or any of its subsidiaries on the one hand and (2) any of the Lead Arrangers or their respective affiliates or subsidiaries on the other hand,
BBVA Bancomer will act as Administrative Agent for the Facility, No additional agents, co-agents or arrangers will be appointed, or other titles conferred, without the prior written consent of each of the Lead Arrangers,
It is understood and agreed that the commitment of each Bank shall be irrevocably and ratably reduced by the amount of the commitments of any other potential Lenders,
Section 4, Fees, The Company shall pay the non-refundable fees, in U,S, Dollars in New York, set forth in the Fee Letter, The Company and the Lead Arrangers agree that, except as expressly contemplated by this Commitment Letter and the Fee Letter (including the discretion of the Lead Arrangers to allocate fees under the Fee Letter), no additional compensation will be paid in connection with the Facility without the consent of the Lead Arrangers and the Company,
Section 5, Indemnification, The Company shall indemnify and hold harmless the Lead Arrangers, the Xxxxx, the Administrative Agent and each of their respective affiliates and each of their respective officers, directors, employees, agents, advisors and representatives (each, an "Indemnified Party") from and against any and all claims, damages, losses, liabilities and reasonable and documented expenses (including, without limitation, reasonable and documented fees and disbursements of counsel), jOint or several, that may be incurred by or asserted or awarded against any Indemnified Party (including, without limitation, in connection with any investigation, litigation or proceeding or the preparation of a defense in connection therewith), in each case arising out of or in connection with or by reason of this Commitment Letter, the Fee Letter or the Loan Documentation or the transactions contemplated hereby or thereby or any actual or proposed use of the proceeds of the Facility, except to the extent such claim, damage, loss, liability or expense is found in a final, non-appealable judgment by a court of competent jurisdiction to have resulted from such Indemnified Party's gross negligence or willful misconduct In the case of an investigation, litigation or other proceeding to which the indemnity in this paragraph applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by the Company, any of its directors, security holders or creditors, an Indemnified Party or any other person or an Indemnified Party is otherwise a party thereto and whether or not the transactions contemplated hereby are consummated,
No Indemnified Party shall have any liability (whether in contract, tort or otherwise) to the Company or its subsidiaries (if any) or affiliates, or any of its or their respective security holders or creditors for or in connection with the transactions contemplated hereby, except for direct damages (as opposed to special, indirect, consequential or punitive damages) determined in a final, non-appealable judgment by a court of competent jurisdiction to have resulted from such Indemnified Party's gross negligence or willful misconduct
The Company acknowledges that information and documents relating to the Facility may be transmitted through SyndTrak, Intralinks, the intemet, e-mail, or similar electronic transmission systems, and that no Indemnified Party shall be liable for (i) any damages arising from the unauthorized use by others of information or documents transmitted in such manner and (ii) any breach of confidentiality arising from the use of such systems which is beyond such Indemnified Party's control,
Section 6, Costs and Expenses, The Company shall pay, or reimburse the Lead Arrangers, the Administrative Agent and the Xxxxx on demand for, all out-of-pocket documented costs and expenses
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reasonably incurred by any of them (whether incurred before or after the date hereof) in fig~lj'tl~ri'WItI){h: .i;f ~ Facility, the syndication thereof, the preparation, negotiation, execution and deli . ~ Qt,"'di)flllltlve ,.:}) ,," documentation therefore, and the preparation, negotiation, execution and delivery of this CORlitri\knt\~\\erc>.~. ':)fI "v and the Fee Letter (including, without limitation, the reasonable and documented fees an ·'~p.~$(e$:®fS~::?, counsel and due diligence syndication (including_Wlnting~ distribution and bank meeting~) tr=11'6iWIi1~' ~"~"~"urf~"_-_____ _ computer, duplication and messenger costs and expenses, subject to the limits specified below), in U.S. Dollars in New York or, at the Lead Arrangers', the Xxxxx' and the Administrative Agent's direction, in the currency and at the place in which such costs and expenses were incurred, regardless of whether any of the transactions contemplated hereby are consummated; provided, however, that such payment or reimbursement obligation shall be subject to the prior approval of the Facility by Hacienda; provided further that, the Company will not have to reimburse, or pay for, (i) fees and costs of legal counsel to the Administrative Agent, the Lead Arrangers and the Xxxxx, in excess of US$215,OOO plus any applicable sales or value-added taxes, and (ii) out-of-pocket expenses incurred by the Administrative Agent, the Lead Arrangers and the Xxxxx, in excess of US$100,OOO plus any applicable sales or value-added taxes. The Borrower hereby represents that it has made Hacienda aware of the terms and conditions of the Facility. The Company shall also pay all costs and expenses of the Lead Arrangers, the Administrative Agent and the Xxxxx (including. without limitation, the reasonable and documented fees and disbursements of counsel) reasonably incurred in connection with the enforcement of any of their rights and remedies hereunder and under the Fee Letter.
Section 7. Taxes. All payments by the Company under this Commitment Letter and the Fee Letter shall be made free and clear of any set-off, claims or withholding or other applicable taxes and shall be made (except as othenwise specified in "Costs and Expenses" above) in U.S. Dollars in New York.
Section 8. Confidentiality. Neither the existence of this Commitment Letter nor the terms hereof will be disclosed by any party to any person other than (a) to such party's shareholders, affiliates, officers, directors, employees, accountants, attorneys and other advisors, (b) in the case of the Lead Arrangers, the Xxxxx, or the Administrative Agent, to their respective affiliates, and to any actual or prospective lender, agent or participant in the Facility (it being understood in each of (a) and (b) that such disclosures may be made only on a confidential and "need to know" basis in connection with the transactions contemplated hereby and that the persons to whom such disclosure is made will be informed of the confidential nature of such information), (c) as such party is requested or required by law or regulation, on the advice of the counsel to such party. to make, (d) as required or requested by any applicable supervisory or regulatory agency or authority, (e) in connection with the exercise of any remedies under this Commitment Letter, the Fee Letter or under the Loan Documentation or any action or proceeding relating to this Commitment Letter, the Fee Letter or the Loan Documentation or the enforcement of rights hereunder or thereunder, or (f) to the extent such terms become publicly available other than as a result of a breach of this Section 8. Notwithstanding any other provision in this Commitment Letter, no party or its representatives shall be limited from disclosing the U.S. tax treatment or U.S. tax structure of the FaCility.
Section 9. Representations and Warranties of the Company. The Company represents and warrants that (i) all information that has been or will hereafter be made available to the Lead Arrangers, the Administrative Agent, any Lender or any potential Lender by the Company or any of its representatives in connection with the transactions contemplated hereby is and will be complete and correct in all material respects and does not and will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein not misleading in light of the circumstances under which such statements were or are made and (ii) all financial projections, if any, that have been or will be prepared by the Company or any of its representatives and made available to the Lead Arrangers, the Administrative Agent, any Lender or any potential Lender have been or will be prepared in good faith based upon assumptions reasonable at the time made and at the time the related projections are made available to the Lead Arrangers, the Administrative Agent or any such Lender or potential Lender (it being understood that such projections are subject to significant uncertainties and contingencies, many of which are beyond the Company's control, and that no assurance can be given that the projections will be realized). The Company agrees to supplement the information and projections from time to time until the Loan Documentation becomes effective so that the representations and warranties contained in this paragraph remain correct.
In providing this Commitment Letter, the Lead Arrangers and the Xxxxx are entitled to rely on the accuracy of the information furnished to them by or on behalf of the Company and its subsidiaries (if any) without responsibility for independent verification thereof.
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Section 10. No Third Party Reliance, Etc. The agreements of each of the Le~14Jrangers,tbe>' Administrative Agent and the Xxxxx hereunder and of any Lender that issues a com~' .'. rllent:;t6rf9vide financing under the Facility are made solely for the benefit of the Company and may not . rell§lcfp'pon or enforced by any other person. Please note that those matters that are not covered or made l",ar hereip/aL!':. sublect to mutual agreement of the garties. The Comlliill)l may not assign or delegate an '~'1;'ij,s'rl hts or obligations hereunder without each of the Lead Arrangers', the Administrative Agent's and the B8'riI\'g::-~x.xx;:::- written consent (and any attempted assignment shall be null and void). This Commitment Letter may not be amended or modified except in a written agreement signed by all parties hereto. This Commitment Letter is not intended to create an agency or a fiduciary relationship among the parties hereto. The Company acknowledges that It has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and that it is capable of evaluating, and understanding and accepting, the terms, risks and conditions of the transaction contemplated hereby. Any and all obligations of, and services to be provided by, each Bank and each Lead Arranger hereunder (including, without limitation, its commitment) may be performed and any and all rights of the Administrative Agent, such Bank or such Lead Arranger hereunder may be exercised by or through any of its affiliates or branches.
The Company acknowledges that the Administrative Agent, each Bank and each Lead Arranger andlor one or more of their respective affiliates may be providing financing or other services to parties whose interests, or may engage in transactions for its own account that, may conflict with the Company's interests. Consistent with the Administrative Agent's, and each Bank's and Lead Arranger's longstanding policies to hold in confidence the affairs of their customers, each of the Administrative Agent, the Xxxxx and the Lead Arrangers will not, and will cause its affiliates not to, furnish confidential information obtained from the Company to any of its other customers. Furthermore, the Company acknowledges that none of the Administrative Agent, the Xxxxx or the Lead Arrangers nor any of their respective affiliates has an obligation to make available to the Company confidential information that the Administrative Agent, the Xxxxx or the Lead Arrangers have obtained or may obtain from any other customer.
Section 11. Jurisdiction; Waivers. Each of the parties hereby irrevocably (i) submits to the jurisdiction of any New York State or Federal court sitting in the City and County of New York and any appellate court frorn any tllereof, in any acLiofl ur proceeding arising out of or relating to this Commitment Letter or the Fee Letter, (ii) agrees that all claims in respect of such action or proceeding may be heard and determined in such New York Federal, State or local court, (iii) waives, to the fullest extent it may effectively do so, the defense of an inconvenient forum to the maintenance of such action or proceeding and the right to any other jurisdiction to which it may be entitled by reason of its present or future domicile, and (iv) agrees that a final judgment in any such action or proceeding shall be conciusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. The Company consents to the service of any and all process in any such action or proceeding by the mailing of copies of such process to the Consulate General of Mexico, at 27 East 39th Street, New York, New York 10016, or in any other manner permitted by applicable law. To the extent that the Company has or hereafter may acquire any immunity from jurisdiction of any such court or from set-off or any legal process (whether through service or notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise) with respect to the Company or the Company's property, the Company hereby irrevocably waives such immunity in respect of the Company's obligations under this Commitment Letter and the Fee Letter to the extent permitted by applicable law (and subject to the limitations referred to in Article 4 of the Federal Code of Civil Procedure of Mexico (C6digo Federal de Procedimientas Civiles) and Articles 1, 4 and 7 (and related articles) of the Public Electric Utility Law (Ley del Servicia Publico de Energia Electrica) of Mexico, as amended or modified from time to time), and, without limiting the generality of the foregoing, agrees that the waivers set forth in this Section 11 shall have effect to the fullest extent permitted under the Foreign Sovereign Immunities Act of 1976 of the United States of America and are intended to be irrevocable for purposes of such Act. The Company's obligations in respect of any sum due from the Company to the Administrative Agent, any Lead Arranger or Bank hereunder or under the Fee Letter shall, notwithstanding any judgment in a currency other than U.S. Dollars, be discharged only to the extent that on the business day following such receipt of any sum adjudged to be so due in such other currency, the Administrative Agent, Lead Arranger or Bank may, in accordance with normal banking procedures, purchase (and remit in New York) U.S. Dollars with such other currency; if the U.S. Dollars so purchased and remitted are less than the sum originally due to the Administrative Agent, such Lead Arranger or such Bank in U.S. Dollars, the Company agrees, as a separate obligation and notwithstanding any such judgment, to indemnify the Administrative Agent, such Lead Arranger or Bank against such loss and, if the U.S. Dollars so purchased exceed the sum originally
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due to the Administrative Agent. such Lead Arranger or Bank in U.S. Dollars. such Lead Arra/~~~-r ~~Pk . ~) agrees to remit to the Company such excess. 'b ,,' . - 0- ,
Section 12. Governing Law. Etc. This Commitment Letter shall be governed by, and co trUIl~:"n., ,. ,0// / accordance with, the laws of the State of New York. This Commitment Letter and the Fee Letter ,t\?!th.- -/"
-------'tne entire agreement between the parties With respect to tne matters aodressed herein andlnereln A. -",=,;;;;;.._:O;~'---- supersede all prior communications, written or oral, with respect hereto and thereto. This Commitment Letter may be executed in any number of counterparts, each of which, when so executed, shall be deemed to be an original and all of which, taken together, shall constitute one and the same Commitment Letter. Delivery of an executed counterpart of a signature page to this Commitment Letter by facsimile transmission or other electronic transmission (i.e., a "pdf' or "tif') shall be as effective as delivery of an original executed counterpart of this Commitment Letter. Sections 5 tnrough 9 and 11 through 13 hereof shall survive the termination of the Lead Arrangers' commitments hereunder.
Section 13. Waiver of JUry Trial. Each party hereto irrevocably waives all right to trial by jury in any action, proceeding or counterclaim (whether based on contract, tort or otherwise) arising out of or relating to this Commitment Letter and the Fee Letter or the transactions contemplated hereby or thereby or the actions of the parties hereto or thereto in the negotiation, performance or enforcement hereof or thereof.
Section 14. PATRIOT Act Notification. The Lead Arrangers hereby notify the Company that, pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26,2001)), the Administrative Agent, the Lead Arrangers, the Xxxxx and the other Lenders may be required to obtain, verify and record information that identifies the Company, which information includes its name and address and other information that will allow the Administrative Agent, the Lead Arrangers, the Xxxxx and the other Lenders to identify the Company in accordance with said Act. This notice is given in accordance with the requirements of said Act and is effective for each of the Administrative Agent, the Lead Arrangers, the Xxxxx and the other Lenders.
Please indicate the Company's acceptance of the provisions hereof by signing the enclosed copy of this Commitment Letter and returning it to (i) Xxxxxxx Xxxxxx, Managing Director, Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx Incorporated, Bank of America Tower, One Xxxxxx Xxxx NY1-100-08-00, New York, NY 10036, Email: xxxxxxx.xxxxxx@xxxx.xxx. (ii) Xxxx Xxxxx, Head of Corporate Lending Mexico, BBVA Bancomer SA Institucion de Banca Multiple, Grupo Financiero BBVA Bancomer, Xxxxxx Urales 620, Piso 2, 11000 Mexico DF, Fax: (00-00) 00 00 00 00, Email: x.xxxxx@xxxx.xxx, (iii) Xxxxxx Xxxxxxx Xxxx, Managing Director, The Bank of Tokyo-Mitsubishi UFJ, Ltd., 1251 Avenue of the Americas, New York, NY 10020, Fax: 000-000-0000, Email: xxxxx@xx.xxxx.xx, (iv) Xxxxx Xxxxxxxx, Managing Director, Citigroup Global Markets Inc., 390 Greenwich Street, First Floor, New York, NY 10013, Fax: (000) 000-0000, Email: xxxxx.xxxxxxxx@xxxx.xxx, (v) Xxxxxx X. MaGia, Managing Director, HSBC Securities (USA) Inc., 452 Fifth Avenue, NY, 10018, Fax: 000-000-0000, Email: xxxxxx.x.xxxxx@xx.xxxx.xxx, (vi) Xxxx Xxxxx, Syndicated Finance, Mizuho Bank, Ltd., 1251 Avenue of the Americas, New York, NY 10020, Fax: 000.000.0000. Email: xxxx.xxxxx@xxxxxxxxxx.xxx. (vii) Xxxxxxx Xxxxxxx, Associate Director, The Bank of Nova Scotia, Blvd Xxxxxx Xxxxx Xxxxxxx 1, Piso 1 Col. Xxxxx de Chapultepec, C.P. 11009, Mexico DF, Mexico, Email: xxxxxxx.xxxxxxx@xxxxxxxxxx.xxx and (viii) Xxxx Xxxxx, Director & Team Leader, Corporate & FI Latin America Department, Sumitomo Mitsui Banking Corporation, 277 Park Avenue 4th Floor, New York, NY, 10172, Fax: 000-000-0000, Email: ehuber@smbc-Ifcom at or before 5:00 p.m. (New York City time) on July 11, 2013, the time at which each of the Xxxxx' and the Lead Arrangers' and Joint Bookrunners' commitments hereunder (if not so accepted prior thereto) will automatically terminate without further action or notice and without further obligation to the Company. If the Company elects to deliver this Commitment Letter by fax or other electronic means, please arrange for the executed original to follow by next-day courier.
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Very truly yours,
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Xxxxxxx Xxxxxx Managing Director
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BBVA BANCOMER SA, INSTITUCI6N DE BANCA MULTIPLE, GRUPO FINANCIERO BBVA BANCOMER
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BBVA SECURITIES INC.
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BBVA BANCOMER SA, INSTITUCION DE BANCA MULTIPLE, GRUPO FINANCIERO BBVA BANCOMER
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THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.
By: -~==-i'i-JlLJf1'£=--- Name: xxxxx xxxxxx Title: Director
By: ------:;-j=""'"'k'--T""'L~=-~'_ Name: X. XxXXXXX COO~ Title: Managing Director
lvIJAMI 979143 (2K)
CITIGROUP GLOBAL MARKETS INC.
/J/U~ -------8y: 7//4',
I Name: XXXXX xX~
M"""I1im~ "l,!OfM Title: • Ui'''6/111
MIAMI 979143 (2K)
HSBC BANK USA, N.A.
By: By:
MD
Name:
Title: Managing Director Name:
Title:
MIAMI 979143 (2K)
MIZUHO BANK, LTD.
--gy. ~-£/tt j!d;2'!-~ Name. Xxxxx Xxxxx
Title. Deputy General Manager
MJAM1979143 (2K)
By: ----1/!L~- Name:
Title:
By: --...,. Naml~;;:::;~
l' e:
MIAMI 979143 (2K)
Xxxxxx N- Associate
irector xxxx
Xxx (lV".-.,~, o[ CR\';·
SUMITOMO MITSUI BANKING CORPORATION
By: -~;$§?$ Name:
Title:
MIAMI 979143 (2K)
XXXXXXXX XXXXXX MANAGING DIRECTOR
As Administrative Agent
BBVA BANCOMER S.A. INSTITUCI6N DE BANCA MULTIPLE, GRUPO FINANCIERO
BBVAB~R
By: ____ -\-'>-+d.-___ _
Name:
Title:
By: -----r~~f~-----
Name:
Title:
MIAMI 979143 (2K)
ACCEPTED AND AGREED on July fL, 2013:
COMISI6N FE DE CTRICIDAD
This signature page relates to that certain Commitment Letter dated July _, 2013, between and among Comisi6n Federal de Electricidad, as borrower, Bank of America, NA, BBVA Bancomer SA Instituci6n de Banca Multiple, Grupo Financiero BBVA Bancomer, The Bank of Tokyo-Mitsubishi UFJ, Ltd., Citigroup Global Markets Inc., HSBC Bank USA, NA, Mizuho Bank, Ltd., The Bank of Nova Scotia and Sumitomo Mitsui Banking Corporation, (or their respective affiliates), as lead arrangers, bookrunners and lenders.
MIAiVfI 979143 (2K)
Summary of Terms and Conditions
COMISION FEDERAL DE ELECTRICIDAD US$1 ,250,000,000 Senior Unsecured Revolving Credit Facility
July 11, 2013
This Summary of Terms and Conditions is the "Term Sheet" referred to in the Commitment Letter and is intended as an outline of certain of the material terms of the Facility. The capitalized terms used herein without definition have the meanings given to them in the Commitment Letter It does not include descriptions of all the terms, conditions and other provisions that are to be contained in the definitive documentation relating to the Facility. It is understood that this Term Sheet shall not constitute or give rise to any obligation on the part of any Lead Arranger or the Xxxxx to provide or arrange any financing; such an obligation will arise only under the Commitment Letter, and only upon (i) satisfaction of the conditions precedent set forth therein (including, without limitation, the receipt of any and all governmental and other approvals of the Facility, including the approval of the Secreta ria de Hacienda y Credito Publico ("Hacienda')), (iD the Company's compliance with the terms of the Commitment Letter and the Fee Letter and (iii) the satisfaction ofthe other conditions set forth or referred to in this Term Sheet to the reasonable satisfaction of the Lead Arrangers and the Xxxxx.
Borrower:
Facility:
Clean Up:
Use of Proceeds:
Closing Date:
Lead Arrangers &
,VIIAMI ')7')143 (2K)
Comisi6n Federal de Electricidad, a decentralized public entity of the United Mexican States (the "Borrower" or the "Company").
A senior unsecured revolving credit facility (the "Facility") in an aggregate principal amount of up to US$ 1,250,000,000 (the "Facility Amount"), which shall be available from time to time until the fifth anniversary of the Closing Date (the "Maturity Date"), which funds may be borrowed, repaid and re-borrowed (subject to the conditions of the Facility) on and after the Closing Date and prior to the Maturity Date, provided that all loans made under the Facility (the "Loans") will be repaid in full within one year from the date the respective loan is disbursed and provided further that all loans must be repaid in full on or prior to the Maturity Date. The aggregate prinCipal amount of loans and commitments under the Facility held by each of the Xxxxx and their respective affiliates shall not exceed US$ 156,250,000. Any and all Loans will be disbursed upon the Borrower's delivery of a notice of borrowing to the Administrative Agent no later than 3 business days prior to the requested borrowing date.
The Loan Documentation will provide for an annual clean up period requiring the Borrower to cause the aggregate outstanding principal amount of Loans to be zero for each of the last 5 consecutive business days of each calendar year (it being understood and agreed that the entire Facility Amount will be available for borrowing immediately following such clean up period).
The proceeds of the Borrowing will be used: (i) to refinance in full the Borrower's obligations under the 2010 Credit Agreement (defined below) and related documentation (the "Existing Facility"), and (ii) for other general corporate purposes of the Borrower.
The date of execution of the Loan Documentation (the "Closing Date").
I-I
Joint Bookrunners:
Administrative Agent:
Lenders:
Maturity Date:
Interest Rate:
Applicable Margin:
Default Rate:
Commitment Fee:
of Nova Scotia CScotiabank") and Sumitomo MitsuI Banking ",aIPora lo[l ,,\" ',h CSMBC") (collectively, the "Lead Arrangers"). "~~;,;;;;...,,.;:::;:'"
BBVA Bancomer SA, Instituci6n de Banca Multiple, Grupo Financiero BBVA Bancomer CBBVA Bancomer").
Bank of America, NA, BBVA Bancomer, BTMU, CGMI, HSBC Bank USA, NA, Mizuho, Scotiabank and 5MBC, or any of their subsidiaries or affiliates (collectively, the "Xxxxx"), and other xxxxx, financial institutions and institutional lenders (collectively, the ''Lenders'') acceptable to the Lead Arrangers and selected in consultation with the Borrower. Unless waived by the Borrower in writing, each Lender (and each participant), other than a Mexican bank or export credit agency (for purposes of Article 196 of the Ley del Impuesta Sabre la Renta) , must (i) be registered with Hacienda as a foreign financial institution for purposes of Article 195-1 of the Ley del Impues/o Sobre la Renta (a Lender or participant so registered, a "Foreign Financial Institution"), (iI) reside in a country with which Mexico has a treaty currently effective for the avoidance of double taxation, (iii) agree to use all reasonable efforts to be a Foreign Financial Institution until the termination of the Facility (so long as such registration is necessary for such Lender to be eligible for a reduced withholding tax rate on Mexican sourced interest) and (iv) if such Lender or participant is acting through a branch, agency or intermediary of its head office, represent that the beneficial owner of the payments to be made under the Facility is a Foreign Financial Institution.
The date that is the fifth anniversary of the Closing Date.
The interest rate per annum (calculated on a 360-day basis) applicable to advances under the Facility will be LlBOR as of the first day of the then applicable interest period, plus the Applicable Margin (as defined below) (the "Interest Rate").
The Borrower may select interest periods of one, two, three or six-months, subject to availability.
Interest shall be payable at the end of the selected interest period, but no less frequently than quarterly. No more than five loans with distinct interest periods will be outstanding under the Facility at any time.
115.0 bps per annum.
Interest on overdue amounts shall accrue at a rate equal to 1.00% plus the Interest Rate otherwise applicable to advances at such time.
Commencing on the Closing Date, a commitment fee of 35.0 bps per annum shall be payable on the unused portion of the Facility, such fee to be payable quarterly in arrears and cn the date of termination or expiration of the commitments. Such fee shall be distributed to the Lenders pro rata in accordance with the amount of each Lender'S commitment, with customary exceptions for defaulting Lenders.
Mandatory Prepayments
1-2
and Commitment Reductions:
~--";"'''''''''
~;:;~~ .. 16~;"':.;::;~:'~~':>,,_ ~i-0\ .:::;, ;.,\,.,;, 1-.", "'\"
'l(t 0<'~ '..:"" <\
~ 7!;"? \.,;~j"\,,.. '~.'1 J:; ,~,:::~~:~-" ',: , -- : n " ~. /C."</ . 'to! :::l Cl /,-" '~_", '-/' " (\,"; '\.) ,.- \-
,,\" "t,;'~ ',,"/ j , 'b '// 'ic?-, ~;' l
If the Borrower ceases (i) to be a public agency of, or a ~poA~.tiOf1 m:ajo. 'r.cty,V owned by, the United Mexican States or (ii) to generate and~~~ .
-----------------i6;;0j,;°Aio~0~f';tlche~e:;O,e~c;;.tr;,;,c:;1t;;;y:',g;;e::;n;e;ra;,';tea anB-aTSfITButeB-wrtmn-tlle I e9iolls 6F tlle"\:Imted--------
Optional Prepayments:
Loan Documentation:
Conditions Precedent
Mexican States served by the Borrower on the Closing Date, the Borrower shall be obligated to prepay all advances under the Facility and the commitments thereunder shall automatically terminate.
The Facility may be prepaid at any time in whole or in part without premium or penalty, except that any prepayment of LlBOR advances other than at the end of the applicable interest period therefore shall be made with reimbursement for any funding losses and redeployment costs of the Lenders resulting therefrom. Amounts voluntarily prepaid may be reborrowed. The unutilized portion of any commitment under the Facility may be reduced or terminated (provided that any partial reduction shall be in a minimum amount of US$ 10 million or any increment of US$ 1.0 million in excess thereof) by the Borrower at any time without penalty upon at least three Business Days' notice.
Mechanics and language essentially similar to those in the Credit Agreement dated December 1, 2010 (the '2010 Credit Agreement') among the Company and the lenders named therein, with such changes as are necessary or advisable to reflect the terms and conditions of the Facility as set forth herein and such representations, warranties and covenants relating to compliance with laws relating to economic or trade sanctions, terrorism and money laundering (including laws administered by OFAC) as may be mutually agreed between the Borrower and the Lenders.
to Disbursement: The closing and the extension of credit under the Facility will be subject to: (a) the negotiation, execution and delivery of definitive documentation with respect to the Facility (the 'Loan Documentation") satisfactory to the Administrative Agent, the Lead Arrangers and the other Lenders, (b) the satisfaction of conditions vecedent consistent with those in the 2010 Credit Agreement, (c) the receipt by the Lenders of evidence satisfactory to the Lenders in their sale discretion that simultaneously with the disbursement of the loans, all obligations under the Existing Facility shall have been satisfied in full and all commitments thereunder are terminated, (d) the payment of all fees in accordance with the Fee Letter, (e) all of the representations and warranties contained in the Loan Documentation shall be materially true and correct (and if already qualified by materiality, shall be true and correct in all respects) and (f) no default or Event of Default shall have occurred and be continuing or would result therefrom.
Representations and Warranties, Covenants and Events of Default: Substantially similar to those contained in the 2010 Credit Agreement
Indemnification: The Borrower will indemnify and hold harmless the Administrative Agent, the Lead Arrangers and the Lenders and each of their respective affiliates and all of their respective officers, directors, employees, agents and advisors from and against all losses, liabilities, claims, damages or expenses arising out of or relating to the Facility, the Borrower's use of loan proceeds or the commitments, including, but not limited to, reasonable and documented attorneys' fees.
1-3
Governing Law:
US Counsel:
Mexican Counsel:
Expenses:
iVIlAMI '.I7'JI~3 (2K)
State of New York
Xxxxx & Case LLP
Xxxxx Xxxxxxx SC
The reasonable and documented costs and expenses incurred by the Administrative Agent, the Lead Arrangers and the Xxxxx in respect of the preparation, negotiation, execution and delivery of the Loan Documentation and the syndication of the Facility will, up to the maximum amounts set forth in the Commitment Letter, be paid by the Borrower on the date of funding of the Facility, by deduction from the amount of the Borrowing.
1-4
EXECUTION VERSION
August 26, 2013
To the Xxxxx, Lead An-angers, Joint Bookrunn_e_~rs~an=d=--::th:::e~A=d:::m:::i:::n:::is~tr~a~ti,-,v-"e-"A-,,~e:::n:::tlf~,:>-~~t_~~-';::\,,-~Ii:'t'::'::j-'7_~;-::~::C~~~~'_\-i~:';1;' ;--__ ~ ('"
-------prraHllrtlyvrlO1heeommitmenn:etter refen-ed to 5elow -"j
Re: Amendment No.1 to Commitment Letter
Ladies and Gentlemen:
Reference is hereby made to the commitment letter, dated July 11, 2013 (the "Commitment Letter"), among Comisi6n Federal de Electricidad (the "Borrower"), Barrie of America, N.A. ("BANA"), BBVA Bancomer S.A. Instituci6n de Banca Multiple, Grupo Financiero BBVA Bancomer ("BBVA Bancomer"), The Bank of Tokyo-Mitsubishi UFJ, Ltd. ("BTMU"), Citigroup Global Markets Inc. ("CGMI"; and together with any of its affiliates andlor subsidiaries as may be appropriate to fulfill its obligations hereunder, including Banco Nacional de Mexico, S.A., integrante del Grupo Financiero Banamex, Acciones y Valores Banamex, S.A. Casa de Bolsa, Citibank, N.A., Citicorp USA, Inc., Citicorp North America, Inc. and/or any of their affiliates andlor subsidiaries, hereinafter refen-ed as "Citi"), HSBC Barrie USA, N.A. ("HSBC"), Mizuho Bank, Ltd. ("Mizuho"), The Banle of Nova Scotia ("Scotiabank"), Sumitomo Mitsui Banlcing Corporation ("SMBC"; and together with BANA, BBV A Bancomer, BTMU, Citi, HSBC, Mizuho and Scotiabank, collectively, the "Xxxxx"), Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx Incorporated ("Men-iII Xxxxx"), BBVA Securities Inc. ("BBV A Securities"), and HSBC Securities (USA) Inc. ("HSI"; and together with Men-ill Xxxxx, BBV A Securities, BTMU, Citi, Mizubo, Scotiabarrlc and 5MBC, collectively, the "Lead Arrangers" and "Joint Bookrunners") and BBVA Bancomer in its capacity as administrative agent (the "Administrative Agent"). All capitalized ten11S used herein but not otherwise defined herein shall have the meanings set forth in the Commitment Letter.
The parties hereto agree that the Commitment Letter is hereby amended as follows:
1) Clause (iv) of Section 1 (Conditions Precedent) shall be deleted and replaced with the following:
"(iv) the preparation, execution and delivery of mutually acceptable loan documentation (the "Loan Documentation") in fon11 and substance satisfactory to each of the Lead An-angers and the Xxxxx on or before September 23, 2013, and consistent with the Sunn11ary of Tenns and Conditions in Annex I (the "Tenn Sheet"); "
2) The first sentence of Section 2 (Coll1lllitment Tennination) shall be deleted and replaced with the following:
"Each of the Xxxxx' and Lead Anangers' commitment hereunder will automatically tel11llnate without further action or notice and without further obligation to the
1
'" \ :
o u
() ("\ ..... \"'~::-I; ,</J'"
(1' 11 «" . "provided further that, the Company will not have to reimburse, or pa ~,~(frfeeS ,i", ' " and costs of legal counsel to the Administrative Agent, the Lead Arrangel'll~d::&tll';::;'" Xxxxx, in excess of US$ISO,OOO plus any applicable sales or value-added taxes, and (ii) out-of-pocket expenses incurred by the Administrative Agent, the Lead Alrangers and the Xxxxx, in excess of US$SO,OOO plus any applicable sales or value-added taxes,"
Except as specifically provided herein, the Connnitment Letter shall remain in full force and effect in accordance with its terms and is hereby ratified and confirmed in all respects,
This letter amendment shall be governed by, and construed and interpreted in accordance with, the laws of the State of New York This letter amendment may be executed in counterparts, each of which shall be an original, but all of such counterparts shall constitute one and the same letter,
If the foregoing is acceptable to you, please so indicate by signing in the space provided and returning a signed copy of this letter amendment to us for our records,
[The remainder of this page is intentionally left blank.]
2
Very tmly yours,
COMISION FE RAL DE ELECTRICIDAD
This signature page relates to that certain Amendment No. I to Conunitment Letter dated 12t5f ~, 2013, between and among Comisiotl Federal de Electricidad, as borrower, Bank of
Amer" a, N.A., BBVA Bancomer S.A. Instltuclon de Banca MultIple, Grupo Fmanclero BBVA Bancomer, The Bank of Tokyo-Mitsubishi UFJ, Ltd., Citigroup Global Markets Inc., HSBC Bank USA, N.A., Mizuho Bank, Ltd., The Bank of Nova Scotia and Sumitomo Mitsui Banking Corporation, (or their respective affiliates), as lead arrangers, booknlllners and lenders.
[Signature Page to CFE 2013 Amendment No. I 10 Commitment Letter I
ACCEPTED AND AGREED on August ~, 2013:
BY: __ ~ __ -r ____________ ___
Name:
Title:
Xxxxxxx Xxxxxx Managing Director
ME SMI
By: _-----.:::~~=-___ - Name:
Title: Xxxxxxx Xxxxxx Managing Director
[Signature Page to Amendment No.1 to Commitment Letter]
BBV A BANCO MER S.A., INSTITUCI6N DE BANCA MULTIPLE, GRUPO FINANCIERO BBV A BANCO MER
BY-w£W~_- NaJe7"XXXX ~ Title: ATTORNEY IN FACT
By' 4--7 . .::===== Name: XXXX~RGAS Title: ATTORNEY IN FACT
BBVA SECURITIES INC.
By:
Name:
Title:
By: ______ _
Name:
Title:
[Signature Page to Amendment No.1 to Commitment Letter]
-
BBVA BANCOMER SA, INSTITUCION DE BANCA MULTIPLE, GRUPO FINANCIERO BBVA BANCOMER
By: ____________________ __
Name:
Title:
By: ____________________ ___
Name:
Title:
BBV A SECURITIES INC.
Title:
[Signature Page to Amendment No.1 to Commitment Letter]
THE BANK OF TOKYO-MITSUBISHI UFJ,LTD.
By: Nam~e~: -6-~tl~~~'f/€9r()-=- Title: -"'-
By:_b~~~-~ ~ Name: J~\ Title: Managing Director
[Signature Page to Amendment No. ] to Commitment Letter]
CITIGROUP GLOBAL MARXETS INC.
Name:
Title:
XXXXX XXXXXXXX Managing Director
[Signature Page to Amendment No.1 to Commitment Letter]
HSBC BANK USA, N.A.
By:
Name:
Title:
HSBC SECURITIES (USA) INC.
Name:
Title:
Xxxxxx Xxxxx Managing Director
[Signature Page to Amendment No.1 to Commitment Letter]
MIZUHO BANK, LTD.
[Signature Page to Amendment No.1 to Commitment Letter]
SCOTIA
By: ------~~~--------~
Title: Associat
By: ,~~d,2s" Name: Xxxxxxxxx Xxxxxxxx
Title: Director - CAG
[Signature Page to Amendment No.1 to Commitment Letter]
SUMITOMO MITSUI BANKING CORPO ION
By: ---=~===7----------
Name:
Title: XXXXX XXXXXXX
MANAGING DIRECTOR
[Signature Page to Amendment 'fo. 1 to Commitment Letter]
As Administrative Agent
BBV A BANCOMER S.A. INSTITUCION DE BANCA M(JI;nPLE, GRUPO FINANCIERO BBV A BANCO MER
By: -I-tt-¥-~:Ll
Title: ATTORNEY IN FACT
By: %~~-?~==._ Name: XXXXXX ~AS Title: ATTORNEY IN FACT
[Signature Page to Amendment No.1 to Commitment Letter]
SHCP 5ECRET,\RIA Dr: H,'\CI~NDA
Y CREDll"O I'UGlICO
Subsecretaria de Hacienda y Credito Publico Urridad de Cn!dito Publico
Direccion General Adjunta de Deucia Publica
Direcciol1 de AutorizaciollCS de Crediro a1 Sector Ptiblico
"2013, Ano de la Lea/tad Institllciona! y Centenario de! Ejheito Nlexicano"
------------------------------'Clflcio Nu.-:y(j5-tz.l-z"t3t-l----
LIe. RAIW6N RlONDA
Gerente de Planeacion Financiera
Comisi6n Federal de Electricidad (CFE)
Pre sen t e.
Asunto: Autorizacion para contratar una linea de
credito revolvente sindicada.
Mexico, D. F. a 16 xx xxxxxx de 2013.
GERENCIA DE PLANEACl61'1 FINANCIERA
CfE 1 6 AGO 2013 CFE
RECIBIDO
Me refiero a sus oficios mimeros GPF-0421 y GPF-00535 fechados e14 de julio y 16 xx xxxxxx de
2013, respectivamente, mediante los cuales esa Entidad solicita autorizacion a esta Secretario para
11 xxx " a cabo la gesti6n y contratacion de una linea de creditD revolvente sindicada, con un sindicato de
bancos, pOl' un monto de Iusta 1,250'000,000.00 U.S. DIs., cuyos recursos seran destinados al
refinanciamiento del saldo de las obligaciones del credito sindicado por 2,000'000,000.00 de U.S. DIs.,
autorizado por esta Secretaria a contratar mediante oficio 305-1.2.1-343 del 26 de noviembre de 2010
y financiar las actividades que establece el Estatuto Organico de la CFE.
Sobre el particular, hago de su conocimiento que, con fundamento en los articulos 31 fmcciones V y
VI de la Ley Orgdnica de la Administraci6n pziblica Federal; 17, 27 Y 28 de la Ley General de Deuda
Pziblica; 17 fraccion X y 18 fracciones I, III y V del Reglamento Interior de la Secreta ria de Hacienda y
Cnldito PZiblico; esta SecretaJ:ia autoriza a esa Entidad a contratar Ia linea de credito revolvente
sindicada que nos ocupa, bajo los terminos y condiciones financieros descritos en elAnexo 1.
Lo anterior, en el entendido de que previamente a la frrma de los instrumentos que formalicen la
operacion, debera remitir a esta Unidad de Credito Pl,blico un ejemplar de los mismos, a fin de
proceder a su estudio y revision.
Insurgentes Sur 1971, Torre III, pisa 8, Col. Guadalupe Inn, XxX Xxxxxx Xxxxxxx, CP. 01020, IVIexico, D.F.
TeL: (00) 0000 0000 1vww.hacienda.gob.nLx
S1-Iep Sl:CRl:lj\RiA DE HAClENDA
Y CREDITO f'UllLlCO
Subsecretaria de Hacienda y Crcdito Pllblico Utudatl de Cn!ruto Publlco
Dirccci6n General Adjunta de Dcuda Ptiblica
Direccion de Autorizaciom:s de Credito a1 Sector Pt.'lblico
"2013, Ano de !a Lea/tad Instituciona! y Centenario de! Ejircito lVlexicano"
-2- Oficio No. 30S-I.2.l-231
Qledamos en espera, en su caso, de la documentaci6n original que se suscriba, dentro de los veinte
dias naturales siguientes ala fecha de formalizacion de la operacion, a fin de proceder a su inscripcion
en el Registro de Obligaciones Financieras Constitutivas de Deuda Pllblica, en los terminos de la Ley
Genera! de Deuda PliMica. En el evento de no solicitarse la inscripci6n en el citado Registro en dicho
periodo, esa Entidad debeni informar las causas que originaron tal situacion.
POl' otra parte, me permito manifestarl~.4~!~f no, ~'b~~a£t~ 1a aHtorizacion para llevar a cabo la ·7 '. .' .... ~ ". ~. ~ -- ,; ". '. ',' " ". . "",
ce1ebracion de la operacion,que ~b_~~p\~~~ ele- 'o';xxxxx~;';o{!llica~e~t~}bd~a colo car a disponer de montos que no rebasensl!Se~h,o fin';~ciero autp~iz~dO-:e.ITlosc.pendirIbs~!,p;esupuesto autorizados en los terminos de 1as4isp(J21~I~nJ's aplica!31e~,:_<-,~~. - '-, .:"-.~. --, ~ -
-. .,. - ,( r~ .j-~.<t _~- __ ,_ ---- \' ~'" ~ " -.~. -,~ "f ':.i',,/ _'_ <'-,_ .. ~ "- " ---' ' .. __ .-,' .• _ ,:,,-_ ~, .~ .. ' _. ~ " .• _'. -"L ~'. -",_ '""" '0,,,,,. ",:~_ .. . ____ -~
POl' Ultimo, es imp0!1:an.te seftal~qlie~es.~Er;tldadd~b~r~ Cl}rllpl1cRh)o)~'eportesi:iphes~rales sabre _. .~. __ ,.--, :, .. {'o'. .. ,:, ~~,,:j, '~'.- ;; ~'. "', "_~'j- "'~-=_.~ "'. '~>"' ... ""-.. ,,"< .. '\ .. '''-: ,'~_. ---:,,' .' ,<.-;
la situacion des~'8 hneas de credito'~ep'las formdto·s. eit~brefid~s po~,~ta~e}~et4ia, ei11o;~primeros 10 dias posterior~s,f1l-:ieri(ae.cadatr~i;~·/ ',:; '.~,' '/ -.j -.",,'~>""" \,\\ '-'
c,c.p.- R'qJediente.
Anexo 3 hojas
C-134-13-2013.
PTLIMLFC
_ j ~ ,~,;ff \'\ ':-
---'-~
Insurgentes Sur 1971, Torre III, pho 8, Col. Guadalupe Inn, Del. Xxxxxx Xxxxxxx, CPo 01020, iVle.:uco, D.F,
Tel.: (00) 0000 0000 xxx.xxxxxxxx.xxx.xx
SHCP :->ECRETA.RIA Dr: H/l.CJ[;/'iDA
Y CREOfTO ['UBUCO
Subsecl'et,uia. de I-Iacienda y Credito Pliblico Unidad de Credito Publico
Direccion General Adjunt::t de Deucia Pl!bUca Dirl!ccion de Autoriz:1ciones de Cn:dito al Sector Ptlbl.ico
"2013, /ilio de /a Lea/tad 1I1Jtitucioitai y Centenario de! Ejercito iVlexicano"
----------------------------------------------------------~Oll~g-N~~l~l~-------
NO. DEANEXO: I NO. DE pAGINA: 1 DE 3
Al'lEXO DEL OFICIO
CARACTERISTICAS FINANCIERAS DEL CREDITO REVOL VENTE
ENTIDAD Comision Federal de Electricidad (CFE).
ACREDITAl\TTE Un sindicato de bancos: Bank of America, N.A., BBVA Eancomer S,A. Institucion de
Banen lVltiltiple, Grupa Financiero BBVA Bancomer, Banco Nacional de l'vlexico,
S.A. Integrante del Grupo Financiero Banamex, The Bank ofTokyo-lYIitsubishi UF],
Ltd., HSBC Bank USA, N.A., Mizuho Bank, Ltd., The Bank of Nova Scotia,
Sumitomo lVIitsul Banking Corporation y atras, liderados pOl' BBVA Securities Inc.,
Citigroup Glob·al Mill·kets Inc., HSBC Securities (USA) Inc, Xxxxxxx Xxxxx, Xxxxxx,
Xxxxxx & Xxxxx Incorporated, lYlizuho Bank, Ltd., Sumitomo I\IIitsui Banking
Corporation, The Bank of Nova Scotia y The Bank of Tokyo-Mitsubishi UF], Ltd. y
como Agente Administrativo: BBVA Bancomer S.A. Institllcion de Banca lYh'rltiple,
Grupo Fin:lllciero BE VA Bancomer.
AGENTE BBVA Bancomer, S.A. Institucion de Banca .MUltiple, Grupo Financiero
ADMINISTRATIVO BBVA Bancomer.
TIPODE Contrataci6n de una Linea de Credito Revolvente Sindicada no asegurada
OPERACrON (Senior UnsecU7·ed Revolving Credit Facility).
MONTODEL Hasta. 1,250'000,000.00 de U.S. Dis (Un mil doscientos cincuenta millones de I CREDITO U.S. Dolares 00/100).
MONEDA Dola.res Americanos (U.S. Dis.)
DESTINO Refinanciamiento del saldo de las obligaciones del credito sindicado por
2,000,000,000.00 de U:S: Dis. de fecha l' de diciembre de 2010 y financiar las I
actividades que establece el Estatuto Organico de la CFE.
FORMADEPAGO
DE CAPITAL Mediante una (1) amortizacion de capital en la fecha de vencimiento.
I FORMADEPAGO A ser fijaclo para cada periodo de 1, 2, 3 0 6 meses. Pagaderos trimestral 0
DE INTERESES semestralmen teo
11 Insurgentes Sur 1971, Torre III, piso 8, Col. Guadalupe Inn, Del. .A.lvrrfO Xxxxxxx, CPo 01020, i\'Iexico, D.F. Tel.: (00) 00000000 xxxx.xxxxxxxx.xxx.xx
SHCP S[O! .. ET,·\lZIA DE 1-I,\Ci U':D,\
Y CrtEDITCl I'LJ[)LlCO
Subsecretaria de Hacienda y Creclito Pitblico Unldad de Cn~dlto Publico
Direccion General A~jllnta de Deuda Pt'tblica Direccion de Autorizaciones de Credito aJ. Sector Pliblico
"2013, /1110 de!a Xxx!tad Instituciona!y Centenario de! Ejercito ilIJexicano"
'1- Oficio No, 305-1,2,1-231
NO, DEANEXO: I NO, DEPAcINA: 2DE3
ANEXO DEL OFICIO
CARACTERiSTICAS FINANCIERAS DEL CREDITO REVOL VENTE
!lpLAZO
I FECHA VIGENCIA Hasta 5 anos a partir de la fecha xx xx'Illa del contrato de credito,
PARADESEMBOLSOS Cinco anos posteriores ala fecha de frrma del contrato de credito, i
FECHADE Credito revolvente hasta cinco anos posteriores ala fecha de fuma del contmto I
VENCIMIENTO de credito. II .
TASADE INTERES Variable II
TASABASE LIBOR II
PLAZO TASA BASE 1,2, 3 a 6 meses I !
BASE DE CALCULO 365/360 dias
ilVIARGEN SOBRE TASA 115 (ciento quince) puntos base, a1 xxx, I
BASE (PUNTOS BASE) ,\
PREPAGO Permitido sin pena ni castigo en fechas de paga de intereses. En caso de que los
prepagos sean realizados en una fecha diferente a]a Ultima feeha frjada para eI
pago de los intereses, CFE reembolsani a los bancos eI xxxxx par rompimiento
de fondea, .
LUGARDEPAGO En eI Extranjero: Cuenta del Agente Administrativo en 10. Ciudad de Nueva I
York, EE.UU, I i AGENTE Agente Administrativo: BBVA Bancomer S,A. Institueion de Banca MUltiple,
COMISIONES De arreglo (Arrangement Fee): 0.95% sabre el manto total del contrato, a cargo
de CFE, pagadera al Agente Administrativo a favor de los Lead Arrangers a
partir de la fecha que xxxxx primero: a) b fecha del desembolso inicial 0, b) tres
(3) dias posteriores ala feeha de frl'ma del contrato (Closing Date),
Insurgentes Sur 1971, Torre III, piso 8, Col. GLmdalupe Inn, Del. Xxxxxx Xxxxx0x, CPo 01020, J'viexico, D.F.
Tel.: (00) 0000 000..J- xxx.xxxxxxxx.xxx.xx
,
SHCP SECIHTAPj" Df H,\CfF.ND,\
Y CREOITO I'UBLICO
Sllbsecretru'ia de Haciend~l y Credito Publico Unidad de Cddito Publico
Dirccc.i6n Generrrl Adjunta de Deuda PubUca Dlrecciol1 de Autorizaciones de Creclito al Sector Publico
"2013, Alio de la Lealtad Instituciona! y Centenario de! Ejercito IVlexicano"
Ollcio No, 305-1.2,1-231
-5-
NO, DEANEXO: I NO,DEPAGINA:3DE3
ANEXO DEL OFICIO
CARACTERiSTICAS FINANCIERAS DEL CREDITO REVOL VENTE
, COMISIONES Del Agente Administrativo (Agency Fee): U.S, DIs, 18,000,00 anuales, I
pagaderos a cargo de CFE en 1a primera fecha de desembolso y amm1mente en !
, ,
I
cada aniversario de la fecha de firma del contrato (Closing Date),
i
De Compromiso: 35 puntos basieos por ano, calculados sobre saldos no
I dispuestos a paJ:tir de Ia fecha de firma del contrato, Pagaderos trimestralmente a I
partiJ: del 30 de septiembre de 2013,
GASTOS GASTOS LEGALES: Hasta U.S. DIs. 180,000.00, m:ls impuestos aplicables, a
rmgo de CFE.
GASTOS V ARIOS: Razonables y documentados (oelt of pocket expenses) hast" I
U.S. DIs. 80,000.00, mas impuestos aplicables, a cargo de CFE. I , TASA DE INTERES
MORATORIA: 1.0% sabre hl tasa contractual.
i IMPUESTOS A cargo de CFE I DOCUMENTACION Contrato de Cn~dito, Fee Letters, Commitment Lettery Pagares.
Insurgeates Sur 1971, Torre III, pisa 8, CuL GuadDJupe Xxx, Del. Xxxxxx Xxxxxxx, CPo 01020, :tvlexico, D.F.
TeL: (00) 0000 00-0-0 www.hadenda.gob.ITL'{