MAXCOM TELECOMUNICACIONES, S.A. DE C.V. 11% SENIOR NOTES DUE 2014 PURCHASE AGREEMENT
EXHIBIT 1.2
$25,000,000
MAXCOM TELECOMUNICACIONES, S.A. DE C.V.
11% SENIOR NOTES DUE 2014
January 5, 2007
January 5, 2007
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Maxcom Telecomunicaciones, S.A. de C.V. (the “Company”), a sociedad anónima de capital
variable organized under the laws of the United Mexican States (“Mexico”), proposes to issue and
sell to you (the “Initial Purchaser”), an aggregate of $25,000,000 principal amount of its 11%
senior notes due 2014 (the “Notes”) to be issued pursuant to the provisions of an Indenture dated
as of December 20, 2006 (the “Indenture”) among the Company, each of the guarantors named therein
(collectively, the “Guarantors”) and Deutsche Bank Trust Company Americas, as trustee, transfer
agent, registrar and principal paying agent (the “Trustee”). The payment of principal of, premium
and Additional Amounts (as defined in the Indenture), if any, and interest on the Notes will be
fully and unconditionally guaranteed (the “Guarantees”) on an unsecured senior basis jointly and
severally by Maxcom Servicios Administrativos, S.A. de C.V., Outsourcing Operadora de Personal,
S.A. de C.V., Técnicos Especializados en Telecomunicaciones, S.A. de C.V., Corporativo en
Telecomunicaciones, S.A. de C.V., Maxcom SF, S.A. de C.V., Maxcom TV, S.A. de C.V. and Maxcom USA,
Inc. The Notes and the Guarantees attached thereto are herein collectively referred to as the
“Securities”.
The Securities will be offered without being registered under the Securities Act of 1933, as
amended (the “Securities Act”), to qualified institutional buyers in compliance with the exemption
from registration provided by Rule 144A under the Securities Act, in offshore transactions in
reliance on Regulation S under the Securities Act (“Regulation S”) and to institutional accredited
investors (as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act) that deliver a
letter in the form annexed to the Final Memorandum (as defined below).
The Initial Purchaser and its direct and indirect transferees will be entitled to the benefits
of a Registration Rights Agreement dated as of January 10, 2007 among the Company, the Guarantors
and the Initial Purchaser (the “Registration Rights Agreement”).
In connection with the sale of the Securities, the Company has prepared a preliminary offering
memorandum (the “Preliminary Memorandum”) and will prepare a final offering memorandum (the “Final
Memorandum”) including or incorporating by reference a description of the terms of the Securities,
the terms of the offering and a description of the Company. For purposes of this Agreement,
“Additional Written Offering Communication” means any written communication (as defined in Rule 405
under the Securities Act) that constitutes an offer to sell or a solicitation of an offer to buy
the Securities other than the Preliminary Memorandum or the Final Memorandum, and “Time of Sale
Memorandum” means the Preliminary Memorandum together with the Additional Written Offering
Communications, if any, each identified in Schedule I hereto. As used herein, the terms
Preliminary Memorandum, Time of
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Sale Memorandum and Final Memorandum shall include the documents,
if any, incorporated by reference therein. The terms “supplement”, “amendment” and “amend” as used
herein with respect to the Preliminary Memorandum, the Time of Sale Memorandum, the Final Memorandum or
any Additional Written Offering Communication shall include all documents subsequently filed by the
Company with the Securities and Exchange Commission (the “Commission”) pursuant to the U.S.
Securities Exchange Act of 1934, as amended (the “Exchange Act”), that are deemed to be
incorporated by reference therein.
1. Representations and Warranties. The Company represents and warrants to, and agrees with,
you that:
(a) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and
incorporated by reference in the Preliminary Memorandum, the Time of Sale Memorandum or the Final
Memorandum complied or will comply when so filed in all material respects with the Exchange Act and
the applicable rules and regulations of the Commission thereunder, (ii) the Time of Sale Memorandum
as of the date thereof does not, and at the time of each sale of the Securities in connection with
the offering when the Final Memorandum is not yet available to prospective purchasers and at the
Closing Date (as defined in Section 4), the Time of Sale Memorandum, as then amended or
supplemented by the Company, if applicable, will not, contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, (iii) the Preliminary Memorandum as of
the date thereof and hereof does not contain and the Final Memorandum, in the form used by the
Initial Purchaser to confirm sales as of the date thereof and on the Closing Date (as defined in
Section 4), as then amended or supplemented by the Company, if applicable, will not contain any
untrue statement of a material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were made, not misleading,
except that the representations and warranties set forth in this paragraph do not apply to
statements or omissions in the Preliminary Memorandum, the Time of Sale Memorandum or the Final
Memorandum based upon information relating to any Initial Purchaser furnished to the Company in
writing by such Initial Purchaser through you expressly for use therein.
(b) Except for the Additional Written Offering Communications, if any, identified in Schedule
I hereto, and electronic road shows, if any, furnished to you before first use, the Company has not
prepared, used or referred to, and will not, without your prior consent, prepare, use or refer to,
any Additional Written Offering Communication.
(c) The Company has been duly incorporated and is validly existing as a limited liability
corporation, or sociedad anónima de capital variable, under the laws of Mexico, has the corporate
power and authority to own its property and to conduct its business as described in the Time of
Sale Memorandum and is duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or leasing of property requires
such qualification, except in each case to the extent that the failure to be so qualified or be in
good standing would not reasonably be expected to have a material adverse effect on the
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properties, financial condition, results of operations or prospects of Company and its subsidiaries, taken as a
whole (a “Material Adverse Effect”).
(d) Each subsidiary of the Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its incorporation, has the
corporate power and authority to own its property and to conduct its business as described in
the Time of Sale Memorandum and is duly qualified to transact business and is in good standing in
each jurisdiction in which the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be so qualified or be in good
standing would not reasonably be expected to have a Material Adverse Effect; all of the issued
shares of capital stock of each subsidiary of the Company have been duly and validly authorized and
issued, are fully paid and non-assessable and the quotas or shares of capital stock of each
subsidiary of the Company are owned directly or indirectly by the Company and are free and clear of
all liens, encumbrances, equities or claims except as described in the Time of Sale Memorandum and
the Final Memorandum.
(e) This Agreement has been duly authorized, executed and delivered by each of the Company and
the Guarantors.
(f) The authorized capital stock and the memorandum and articles of associations of the
Company conform as to legal matters to the description thereof contained in the Annual Report of
the Company on Form 20-F for the year ended December 31, 2005 under the caption “B. Memorandum and
Articles of Association” as supplemented by the applicable description contained in the Time of
Sale Memorandum and the Final Memorandum.
(g) The Securities have been duly authorized and, when executed and authenticated in
accordance with the provisions of the Indenture and delivered to and paid for by the Initial
Purchaser in accordance with the terms of this Agreement, will be valid and binding obligations of
each of the Company and the Guarantors, enforceable in accordance with their terms and will be
entitled to the benefits of the Indenture pursuant to which such Securities are to be issued
subject, as to the enforcement of remedies, to the effects of (1) bankruptcy, reorganization,
insolvency, fraudulent conveyance, moratorium or other laws affecting creditors’ rights generally
from time to time in effect and (2) general principles of equity (whether considered in a
proceeding in equity or at law) (collectively, the “Enforceability Limitations”).
(h) Each of the Indenture and the Registration Rights Agreement has been duly authorized,
executed and delivered by, and, assuming due authorization, execution and delivery thereof by the
trustee, will constitute a valid and binding agreement of, each of the Company and the Guarantors,
enforceable in accordance with its terms, subject to the Enforceability Limitations and, in the
case of the Registration Rights Agreement, applicable laws and public policy that may limit
provisions relating to indemnification.
(i) Neither the Company nor any of its subsidiaries is (i) in violation of its incorporation
deed, by-laws or other organizational documents, (ii) in default, and no event has occurred that,
with notice or lapse of time or both, would constitute such a default, in the due performance or
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observance of any obligation, term, covenant or condition contained in any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to which it is a party or by which
it is bound or to which any of its property or assets is subject or (iii) in violation of any law
or statute or any judgment, order, rule or regulation applicable to the Company or any of the
Guarantors of any court or arbitrator or governmental or regulatory authority having jurisdiction
over the Company or any of the Guarantors or any of its or their properties, as applicable, other
than, in the cases of clauses (ii) and (iii), such violations and defaults that would not
reasonably be expected to have a Material Adverse Effect.
(j) The execution and delivery by each of the Company and the Guarantors of, and the
performance by each of the Company and the Guarantors of its obligations under, this Agreement, the
Registration Rights Agreement, the Indenture, and the Securities will not contravene any provision
of (i) applicable law, (ii) the incorporation deed, by-laws or other organizational documents of
any of the Company or its subsidiaries, (iii) any agreement or other instrument binding upon the
Company or any of its subsidiaries, or (iv) any judgment, order or decree of any governmental body,
agency or court having jurisdiction over the Company or any of the Guarantors; except, in the case
of clauses (i), (iii) and (iv), for any contravention that would not reasonably be expected to have
a Material Adverse Effect or have a material adverse effect on the power or ability of the Company
or the Guarantors to perform their respective obligations under this Agreement, the Registration
Rights Agreement, the Indenture or the Securities or to consummate the transactions contemplated by
the Time of Sale Memorandum. No consent, approval, authorization or order of, or qualification
with, any governmental body or agency is required for the performance by each of the Company and
the Guarantors of their respective obligations under this Agreement, the Registration Rights
Agreement, the Indenture or the Securities, except for such consents, approvals, authorizations,
orders and qualifications (i) that have been obtained, (ii) as may be required by the securities or
Blue Sky laws of the various states in connection with the offer and sale of the Securities, (iii)
as may be required by the Securities Act, the U.S. Trust Indenture Act of 1939, as amended (the
“Trust Indenture Act”) or any applicable state securities laws with respect to the Securities
(including the related guarantees) to be issued in exchange for the Securities; or (iv) where
failure to obtain such consents, approvals, authorizations, orders and qualifications would not
reasonably be expected to have a Material Adverse Effect or have a material adverse effect on the
power or ability of the Company or the Guarantors to perform their respective obligations under
this Agreement, the Registration Rights Agreement, the Indenture or the Securities or to consummate
the transactions contemplated by the Time of Sale Memorandum.
(k) The financial statements of the Company and its consolidated subsidiaries, and the related
schedules and notes thereto, included in the Time of Sale Memorandum and the Final Memorandum were
prepared in accordance with Mexican generally accepted accounting principles (“Mexican GAAP”)
consistently applied and present fairly in all material respects the financial position of the
Company and its subsidiaries, on a consolidate basis, at the relevant dates and the results of
operations and changes in financial position of each of the Company and its subsidiaries, on a
consolidated basis, for the periods in respect of which they have been prepared. The statements in
note 21 to the consolidated financial statements contained in the Company’s Annual Report on Form
20-F for the year ended December 31, 2005, which is
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incorporated by reference to the Time of Sale
Memorandum and the Final Memorandum, insofar as they purport to summarize the principal differences
between Mexican GAAP and United States generally accepted accounting principles (“U.S. GAAP”) as
the latter would apply to the Company’s audited consolidated financial statements, fairly
summarize, in all material respects, such differences. The selected financial information and the
summary financial information included in the Time of Sale Memorandum and the Final Memorandum have
been derived from the accounting records of the Company and present fairly in all material respects the
information shown therein.
(l) PricewaterhouseCoopers, S.C., who has audited the financial statements included in the
Time of Sale Memorandum and who will deliver the letters referred to in Section 5(h), is an
independent registered public accounting firm with respect to the Company and its subsidiaries
within the meaning of the Securities Act and the applicable published rules and regulations
thereunder.
(m) The Company and each of its subsidiaries maintain a system of internal accounting controls
sufficient to provide reasonable assurance that (i) transactions are executed in accordance with
management’s general or specific authorizations, (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with Mexican GAAP and U.S. GAAP, as
applicable, and to maintain asset accountability, (iii) access to assets is permitted only in
accordance with management’s general or specific authorizations and (iv) the recorded
accountability for assets is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences. Since the end of the Company’s most
recent audited fiscal year, there has been (i) no material weakness in the Company’s or its
subsidiaries’ system of internal accounting controls (whether or not remediated) and (ii) no change
in the Company’s or its subsidiaries’ system of internal accounting controls that has affected, or
is reasonably likely to materially affect, the Company’s or its subsidiaries’ system of internal
accounting controls.
(n) Since September 30, 2006, (i) there has not been any change in the capital stock or
long-term debt of the Company or its or their subsidiaries, or any dividend or distribution of any
kind (including interest on capital) declared, set aside for payment, paid or made by the Company
or its or their subsidiaries on any class of capital stock; neither the Company nor any of its or
their subsidiaries have entered into any transaction or agreement that is material to any such
entity or incurred any liability or obligation, direct or contingent, that is material to the
Company and its subsidiaries, taken as a whole, and (ii) neither the Company nor any of its or
their subsidiaries has sustained any loss or interference with its business from fire, explosion,
flood, drought or other calamity, whether or not covered by insurance, or from any labor
disturbance or dispute or any action, order or decree of any court or arbitrator or governmental or
regulatory authority, except with respect to clause (ii) for a loss or interference that would not
reasonably be expected to have a Material Adverse Effect and in the and with respect to each of
clause (i) and (ii) as otherwise disclosed in the Time of Sale Memorandum and the Final Memorandum.
Except as disclosed in the Time of Sale Memorandum, since the respective dates as of which
information is given in the Time of Sale Memorandum, there has not occurred any material adverse
change, or any development involving a prospective material adverse change, in
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the condition, financial or otherwise, or in the earnings, business or operations of the Company and its
subsidiaries, taken as a whole.
(o) Each of the Company and its subsidiaries have obtained all necessary concessions,
consents, authorizations, permits, licenses and other approvals necessary to conduct the business
now operated by them and are in compliance with such concessions, consents, authorizations,
permits, licenses and other approvals and any laws or other legal or regulatory requirements
applicable to them, including, without limitation, those related to commercial, labor,
administrative or tax matters, except where the failure to possess or be in compliance with
such concession, consent, authorization, permit, license or other approval would not reasonably be
expected to have a Material Adverse Effect. Neither the Company nor any of its subsidiaries has
received written notice of proceedings relating to the failure to obtain, or the revocation,
modification or breach of any such concession, consent, authorization, permit, license or other
approval, except where the failure to possess or be in compliance with such concession, consent,
authorization, permit, license or other approval would not reasonably be expected to have a
Material Adverse Effect.
(p) The Company and each of its subsidiaries have filed all federal, state, municipal and
foreign income and franchise tax returns required to have been filed by them or appropriate
extensions for such filings have been obtained, and have paid all taxes due and payable by any of
them, except for such taxes that are not yet due or are being contested in good faith, except where
the failure to so file such tax returns or pay such tax would not reasonably be expect to have a
Material Adverse Effect.
(q) Neither the Company nor any of its subsidiaries nor, to the best knowledge of the
management of the Company, any director, officer, agent, employee or other person acting on behalf
of the Company or any of its subsidiaries has (i) used any corporate funds for any unlawful
contribution, gift, entertainment or other unlawful expense relating to political activity; (ii)
made any direct or indirect unlawful payment to any foreign or domestic government official or
employee from corporate funds; (iii) violated or is in violation of any provision of the U.S.
Foreign Corrupt Practices Act of 1977; or (iv) made any bribe, rebate, payoff, influence payment,
kickback or other unlawful payment.
(r) The Company and its subsidiaries are insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are prudent and customary in
Mexico in connection with the businesses in which the Company and its subsidiaries are engaged.
Neither the Company nor any of its subsidiaries have (i) received written notice that any insurance
policy or arrangement will or may be terminated or (ii) any reason to believe that they will not be
able to renew their existing insurance coverage as and when such coverage expires or to obtain
similar coverage at reasonable cost from similar insurers as may be prudent to continue their
business.
(s) Except as disclosed in the Time of Sale Memorandum and the Final Memorandum, the Company
and its subsidiaries have good and marketable title in fee simple to all real property and personal
property owned by them which is material to the business of the Company and its
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subsidiaries, in each case free and clear of all liens, encumbrances, claims, defects and imperfections of title,
except those that do not interfere with the use of the property, as currently made, and presently
proposed to be made of such property by the Company and its subsidiaries, except as would not
reasonably be expected to have a Material Adverse Effect. Any real property and buildings held
under lease by the Company and its subsidiaries are held by them under valid, subsisting and
enforceable leases, subject to the Enforceability Limitations, and such leases do not interfere
with the use of the property, as currently made, and presently proposed to be made of such property
and buildings by the Company and its subsidiaries, except as would not reasonably be expected to
have a Material Adverse Effect.
(t) Other than proceedings accurately described in all material respects in the Time of Sale
Memorandum, there are no legal or governmental proceedings pending or threatened to which the
Company or any of its subsidiaries is a party or to which any of the properties of the Company or
any of its subsidiaries is subject that, if determined adversely to the Company or any of its
subsidiaries, would reasonably be expected to have a Material Adverse Effect or that would have a
material adverse effect on the power or ability of the Company to perform its obligations under
this Agreement, the Registration Rights Agreement, the Indenture or the Securities or to consummate
the transactions contemplated by the Time of Sale Memorandum.
(u) The Company and its subsidiaries (i) are in compliance with any and all applicable
foreign, federal, state and local laws and regulations relating to the protection of human health
and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants
(“Environmental Laws”), (ii) have received all permits, licenses or other approvals required of
them under applicable Environmental Laws to conduct their respective businesses and (iii) are in
compliance with all terms and conditions of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required permits, licenses or other
approvals or failure to comply with the terms and conditions of such permits, licenses or approvals
would not, singly or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(v) There are no costs or liabilities associated with Environmental Laws (including, without
limitation, any capital or operating expenditures required for clean-up, closure of properties or
compliance with Environmental Laws or any permit, license or approval, any related constraints on
operating activities and any potential liabilities to third parties) which would, singly or in the
aggregate, have a Material Adverse Effect.
(w) There are no existing labor disputes with employees of the Company or any of its
subsidiaries nor are any such labor disputes contemplated or threatened to the best knowledge of
the Company except as would not reasonably be expected to have a Material Adverse Effect.
(x) The Company and its subsidiaries own or possess, or has the right to use, or can acquire
ownership, possession or the right to use on reasonable terms, all material patents, patent rights,
licenses, inventions, copyrights, know how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or procedures), trademarks, service
marks and trade names currently employed by them in connection with the business now
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operated by them, except where the failure to so own or possess or have the right to use would not reasonably
be expected to have a Material Adverse Effect; and neither the Company nor any of its subsidiaries
has received written notice of infringement of or conflict with asserted rights of others with
respect to any of the foregoing.
(y) No stamp, issue, registration, documentary, capital gains, income, withholding or other
taxes or duties, including interest and penalties, are payable in Mexico or in the United States or
any political subdivision or taxing authority thereof on or in connection with (i) the execution
and authentication of the Securities; (ii) the execution and delivery of this Agreement or the
Indenture; (iii) the issuance of the Securities by the Company and the Guarantors or (iv) the sale
of the Securities to the Initial Purchaser in the manner contemplated herein; or (v) the
resale and delivery of the Securities by the Initial Purchaser in the manner contemplated in
the Time of Sale Memorandum.
(z) Except as disclosed in the Time of Sale Memorandum and the Final Memorandum, under the
current laws and regulations of Mexico and any political subdivision thereof, any amounts payable
with respect to the Securities upon liquidation of the Company or upon redemption thereof and
payments of principal of, premium and Additional Amounts (as defined in the Indenture), if any, and
interest on the Securities may be paid by the Company and each Guarantor to the holder thereof in
Mexican Pesos that may be converted into foreign currency and freely transferred out of Mexico, and
all such payments made to holders thereof who are non-residents of Mexico will not be subject to
income, withholding or other taxes under laws and regulations of Mexico or any political
subdivision or taxing authority thereof or therein and will otherwise be free and clear of any
other tax, duty, withholding or deduction in Mexico or any political subdivision or taxing
authority thereof or therein and without the necessity of obtaining any governmental authorization
in Mexico or any political subdivision or taxing authority thereof or therein.
(aa) To ensure the legality, validity, enforcement or admissibility into evidence in a legal
or administrative proceeding in Mexico of this Agreement in Mexico, it is not necessary that this
Agreement be filed or recorded with any court or other authority in Mexico or that any registration
tax, stamp duty or similar tax be paid in Mexico on or in respect of any of this Agreement other
than court costs, including (without limitation) filing fees and deposits to guarantee judgment
required by a Mexican court of law, and except that in the event that any legal proceedings are
brought to the courts of Mexico, a Spanish translation of this Agreement and any other documents
required in such proceedings would have to be approved by the Mexican court after the defendant had
been given an opportunity to be heard with respect to the accuracy of the translation, and
proceedings would thereafter be based upon the translated documents;
(bb) Neither the Company nor any of its subsidiaries has taken, or will take, directly or
indirectly, any action designed to or that could reasonably be expected to cause or result in any
stabilization or manipulation of the price of the Securities.
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(cc) Except as otherwise disclosed in the Time of Sale Memorandum and the Final Memorandum, no
material indebtedness (actual or contingent) and no material contract or material arrangement is
outstanding between the Company or any of its subsidiaries on the one hand and any director or
executive officer, including his/her spouse, infant children and any company or undertaking in
which he/she holds a controlling interest, of the Company or any such subsidiary on the other hand.
No relationship, direct or indirect, exists between or among the Company or any of its
subsidiaries, on the one hand, and the directors, officers, stockholders or other Affiliates of the
Company or any of its subsidiaries, on the other, that would be required by the Securities Act to
be described in a registration statement to be filed with the Commission, if the Securities were to
be registered with the Commission, and that is not so described in the Time of Sale Memorandum and
the Final Memorandum.
(dd) The Company and the Guarantors have the power to submit, and pursuant to Section 14 of
this Agreement have legally, validly, effectively and irrevocably, submitted, to the
jurisdiction of any federal or state court in the State of New York, County of New York, and
have the power to designate, appoint and empower, and pursuant to Section 14 of this Agreement,
have legally and validly designated, appointed and empowered an agent for service of process in any
suit or proceeding based on or arising under this Agreement in any federal or state court in the
State of New York.
(ee) No exchange control authorization or any other authorization, approval, consent or
license of any governmental authority or agency in Mexico is required for the payment by the
Company of any amounts in United States dollars pursuant to the terms of the Indenture or the
Securities and except for any Mexican withholding tax on the payments of interest and as described
in the Time of Sale Memorandum and the Final Memorandum, all such payments made to holders of
Securities who are non-residents of Mexico will not be subject to income, withholding or other
taxes under laws and regulations of Mexico or any political subdivision or taxing authority thereof
or therein and will otherwise be free and clear of any other tax, duty, withholding or deduction in
Mexico or any political subdivision or taxing authority thereof or therein and without the
necessity of obtaining any governmental authorization in Mexico or any political subdivision or
taxing authority thereof or therein.
(ff) Neither the Company nor any of its subsidiaries have immunity from jurisdiction of any
court of any jurisdiction in which they own or lease property or assets, the United States or the
State of New York or Mexico or any political subdivision thereof or from any legal process (whether
through service of notice, attachment prior to judgment, attachment in aid of execution, execution
or otherwise) with respect to themselves or their property and assets or this Agreement or the
Indenture or the Securities or actions to enforce judgments in respect thereof.
(gg) Except as provided for in the bylaws and in the indebtedness to be fully repaid with the
proceeds of the offering of the Securities, no subsidiary of the Company is currently prohibited,
directly or indirectly, under any agreement or other instrument to which it is a party or is
subject, nor due to any judgment, order or decree of any government authority, agency or court
having jurisdiction over such subsidiary, from paying any dividends to the Company, from making any
other distribution on such subsidiary’s capital stock, from repaying to the Company
9
any loans or advances to such subsidiary from the Company in accordance with the terms of any such loan or
advance, or from transferring any of such subsidiary’s properties or assets to the Company or any
other subsidiary of the Company.
(hh) The operations of the Company and its subsidiaries are and have been conducted at all
times in compliance with applicable financial recordkeeping and reporting requirements of the U.S.
Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes
of all jurisdictions, the rules and regulations thereunder and any related or similar rules,
regulations or guidelines, issued, administered or enforced by any governmental agency
(collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before any
court or governmental agency, authority or body or any arbitrator involving the Company or any of
its subsidiaries with respect to the Money Laundering Laws is pending or, to the best knowledge of
the Company, threatened.
(ii) Nothing has come to the attention of the Company that has caused the Company to believe
that the statistical and market related data included in the Time of Sale Memorandum and
the Final Memorandum is not based on or derived from sources that are reliable in all material
respects.
(jj) No forward-looking statement (within the meaning of Section 27A of the Securities Act and
Section 21E of the Exchange Act) contained in the Preliminary Memorandum, the Final Memorandum or
the Time of Sale Memorandum has been made or reaffirmed without a reasonable basis or has been
disclosed in other than good faith.
(kk) The Company has no reason to believe that the indemnification and contribution provisions
set forth in Section 8 contravene Mexican law or public policy.
(ll) The Company, its subsidiaries and their obligations under this Agreement, the
Registration Rights Agreement, the Indenture and the Securities, are subject to civil and
commercial law and to suit, and neither the Company nor any of its subsidiaries nor any of their
respective properties or assets has any right of immunity, on any grounds, from any action, suit or
proceeding, from the giving of any relief in any action, suit or proceeding, from set-off or
counterclaim, from the jurisdiction of any Mexican or U.S. federal or New York state court, from
service of process, attachment upon or prior to judgment, or attachment in aid of execution of
judgment, or from execution of a judgment, or from other legal process or proceeding for the giving
of any relief or for the enforcement of a judgment, in any such court, with respect to its
obligations, liabilities or any other matter arising out of or relating to this Agreement, the
Registration Rights Agreement, the Indenture or the Securities.
(mm) Neither the Company nor any of its subsidiaries is, and after giving effect to the
offering and sale of the Securities and the application of the proceeds thereof as described in the
Final Memorandum will be, required to register as an “investment company” as such term is defined
in the U.S. Investment Company Act of 1940, as amended.
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(nn) Neither the Company nor any of its subsidiaries was a “passive foreign investment
company” (a “PFIC”) as defined in Section 1297 of the U.S. Internal Revenue Code, as amended, and
the Treasury Regulations promulgated thereunder for the taxable year ended December 31, 2005, and
neither the Company nor any of its subsidiaries expects to become a PFIC in the taxable year ending
December 31, 2006.
(oo) Neither the Company nor any affiliate (as defined in Rule 501(b) of Regulation D under
the Securities Act, an “Affiliate”) of the Company has directly, or through any agent, (i) sold,
offered for sale, solicited offers to buy or otherwise negotiated in respect of, any security (as
defined in the Securities Act) which is or will be integrated with the sale of the Securities in a
manner that would require the registration under the Securities Act of the Securities or (ii)
offered, solicited offers to buy or sold the Securities by any form of general solicitation or
general advertising (as those terms are used in Regulation D under the Securities Act) or in any
manner involving a public offering within the meaning of Section 4(2) of the Securities Act.
(pp) None of the Company, its Affiliates or any person acting on its or their behalf has
engaged or will engage in any directed selling efforts (within the meaning of Regulation S) with
respect to the Securities and the Company and its Affiliates and any person acting on its or their
behalf have complied and will comply with the offering restrictions requirement of Regulation S.
(qq) Assuming the accuracy of the representations and warranties of the Initial Purchaser and
compliance by the Initial Purchaser with the agreements set forth in Section 7, it is not necessary
in connection with the offer, sale and delivery of the Securities to the Initial Purchaser in the
manner contemplated by this Agreement to register the Securities under the Securities Act or to
qualify the Indenture under the Trust Indenture Act.
(rr) The Company is a foreign issuer (as defined in Rule 902(d) of Regulation S) and a foreign
private issuer (as defined in Rule 3b-4(c) of the Exchange Act) and there is no substantial U.S.
market interest (as defined in Rule 902(j) of Regulation S) in the Securities or securities of the
same class as the Securities.
(ss) The Securities satisfy the requirements set forth in Rule 144A(d)(3) under the Securities
Act.
2. Agreements to Sell and Purchase. The Company, upon the basis of the representations and
warranties herein contained, hereby agrees to sell to the Initial Purchaser, and the Initial
Purchaser, upon the basis of the representations and warranties herein contained, but subject to
the conditions hereinafter stated, agrees to purchase from the Company the Securities at a purchase
price of 99.000% of the principal amount thereof (the “Purchase Price”) plus accrued interest, if
any, to the Closing Date.
3. Terms of Offering. You have advised the Company that the Initial Purchaser will make an
offering of the Securities purchased by the Initial Purchaser hereunder as soon as practicable
after this Agreement is entered into as in your judgment is advisable.
11
4. Payment and Delivery. Payment for the Securities shall be made by wire transfer to the
Company in U.S. Dollars against delivery of such Securities for the account of the Initial
Purchaser at 10:00 a.m., New York City time, on January 10, 2007, or at such other time on the same
or such other date, not later than January 12, 2007, as shall be designated in writing by you. The
time and date of such payment are hereinafter referred to as the “Closing Date.”
The Securities shall be in definitive form or global form, as specified by you, and registered
in such names and in such denominations as you shall request in writing not later than one full
business day prior to the Closing Date. The Securities shall be delivered to you on the Closing
Date for the account of the Initial Purchaser, with any transfer taxes payable in connection with
the transfer of the Securities to the Initial Purchaser duly paid, against payment of the Purchase
Price therefor plus accrued interest, if any, to the date of payment and delivery.
5. Conditions to the Initial Purchaser’s Obligations. The obligations of the Initial Purchaser
to purchase and pay for the Securities on the Closing Date are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of
any intended or potential downgrading or of any review for a possible change
that does not indicate the direction of the possible change, in the rating accorded the
Company or any of its subsidiaries or any of the securities of the Company or of any of its
subsidiaries or in the rating outlook for the Company or any of its subsidiaries by any
“nationally recognized statistical rating organization,” as such term is defined for purposes
of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any development involving a prospective
change, in the condition, financial or otherwise, or in the earnings, business or operations of
the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale
Memorandum (excluding any amendments or supplements thereto) provided to the prospective
purchasers of the Securities that, in your judgment, is material and adverse and that makes it,
in your judgment, impracticable to market the Securities on the terms and in the manner
contemplated in the Time of Sale Memorandum.
(b) The Initial Purchaser shall have received on the Closing Date a certificate, dated the
Closing Date and signed by an executive officer of each of the Company and the Guarantors, to the
effect set forth in Section 5(a)(i) and to the effect that the representations and warranties of
the Company and the Guarantors contained in this Agreement are true and correct in all material
respects as of the Closing Date and that each of the Company and the Guarantors has complied with
all of the agreements and satisfied all of the conditions on its part to be performed or satisfied
hereunder on or before the Closing Date and a certificate, dated the Closing Date, and signed by an
officer of each of the Company and the Guarantors with respect to the matters set forth in Exhibit
A hereto.
12
The officer signing and delivering such certificate may rely upon the best of his or her
knowledge as to proceedings and labor disputes threatened.
(c) The Initial Purchaser shall have received on the Closing Date an opinion of Xxxxxxxx &
Xxxxx LLP, outside U.S. counsel for the Company, dated the Closing Date, to the effect set forth in
Exhibit B. Such opinion shall be rendered to the Initial Purchaser at the request of the Company
and shall so state therein.
(d) The Initial Purchaser shall have received on the Closing Date an opinion of Solertia
Asesores, S.C. (Xxxxxxx Abogados), outside counsel for the Company, dated the Closing Date, to the
effect set forth in Exhibit C. Such opinion shall be rendered to the Initial Purchaser at the
request of the Company and shall so state therein.
(e) The Initial Purchaser shall have received on the Closing Date an opinion of Xxxxx Xxxx &
Xxxxxxxx, counsel for the Initial Purchaser, dated the Closing Date, with respect to such matters
as the Initial Purchaser may reasonably request.
(f) The Initial Purchaser shall have received on the Closing Date an opinion of Xxxxxxx,
Angoitia, Xxxxxx x Xxxxxxx, S.C., counsel for the Initial Purchaser, dated the Closing Date, to the
effect set forth in Exhibit D.
(g) The Company shall have authorized Deutsche Bank Luxembourg S.A. (the “Luxembourg Listing
Agent”) to make or cause to be made an application on the Company’s behalf for the Memorandum relating to the Notes to be approved by the Luxembourg Stock
Exchange (the “Stock Exchange”) for listing of the Notes on the official list of the Stock Exchange
and for the Notes to be admitted to trading on the EuroMTF market of the Stock Exchange.
(h) The Initial Purchaser shall have received on each of the date hereof and the Closing Date
a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance
satisfactory to the Initial Purchaser, from PricewaterhouseCoopers, S.C., independent public
accountants, containing statements and information of the type ordinarily included in accountants’
“comfort letters” to underwriters with respect to the financial statements and certain financial
information contained in or incorporated by reference into the Time of Sale Memorandum and the
Final Memorandum; provided that the letter delivered on the Closing Date shall use a “cut-off date”
not earlier than the date hereof.
(i) CT Corporation System shall have been appointed and shall have accepted appointment as
agent for service of process as specified in Section 14.
6. Covenants of the Company. The Company covenants with the Initial Purchaser as follows:
(a) To furnish to you in New York City, without charge, prior to 10:00 a.m. New York City time
on the business day next succeeding the date of this Agreement and during the period
13
mentioned in Section 6(d) or (e), as many copies of the Time of Sale Memorandum, the Final Memorandum, any
documents incorporated by reference therein and any supplements and amendments thereto as you may
reasonably request.
(b) Before amending or supplementing the Time of Sale Memorandum or the Final Memorandum, at
any time prior to the completion of the initial offering by the Initial Purchaser, to furnish to
you a copy of each such proposed amendment or supplement and not to use any such proposed amendment
or supplement to which you reasonably object.
(c) To furnish to you a copy of each proposed Additional Written Offering Communication to be
prepared by or on behalf of, used by, or referred to by the Company and not to use or refer to any
proposed Additional Written Offering Communication to which you reasonably object.
(d) If the Time of Sale Memorandum is being used to solicit offers to buy the Securities at a
time when the Final Memorandum is not yet available to prospective purchasers and any event shall
occur or condition exist as a result of which it is necessary to amend or supplement the Time of
Sale Memorandum in order to make the statements therein, in the light of the circumstances, not
misleading, or if, in the opinion of counsel for the Initial Purchaser, it is necessary to amend or
supplement the Time of Sale Memorandum to comply with applicable law, forthwith to prepare and
furnish, at its own expense, to the Initial Purchaser upon request, either amendments or
supplements to the Time of Sale Memorandum so that the statements in the Time of Sale Memorandum as
so amended or supplemented will not, in the light of the circumstances when delivered to a
prospective purchaser, be misleading or so that the Time of Sale Memorandum, as amended or
supplemented, will comply with applicable law.
(e) If, during such period after the date hereof and prior to the date on which all of the
Securities shall have been sold by the Initial Purchaser, any event shall occur or condition exist
as a result of which it is necessary to amend or supplement the Final Memorandum in order to make
the statements therein, in the light of the circumstances when the Final Memorandum is delivered to
a purchaser, not misleading, or if, in the opinion of counsel for the Initial Purchaser, it is
necessary to amend or supplement the Final Memorandum to comply with applicable law, forthwith to
prepare and furnish, at its own expense, to the Initial Purchaser, either amendments or supplements
to the Final Memorandum so that the statements in the Final Memorandum as so amended or
supplemented will not, in the light of the circumstances when the Final Memorandum is delivered to
a purchaser, be misleading or so that the Final Memorandum, as amended or supplemented, will comply
with applicable law.
(f) To endeavor to cooperate with the Initial Purchaser and its counsel to qualify the
Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as you
shall reasonably request.
(g) To use its reasonable efforts to obtain approval for the listing of the Securities on the
Stock Exchange as soon after the Closing Date as practicable.
14
(h) Whether or not the transactions contemplated in this Agreement are consummated or this
Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of its
obligations under this Agreement, including: (i) the fees, disbursements and expenses of the
Company’s U.S. and Mexican counsel, the Initial Purchaser’s U.S. and Mexican counsel and the
Company’s accountants in connection with the issuance and sale of the Securities and all other fees
or expenses in connection with the preparation of the Preliminary Memorandum, the Time of Sale
Memorandum, the Final Memorandum, any Additional Written Offering Communication prepared by or on
behalf of, used by, or referred to by the Company and any amendments and supplements to any of the
foregoing, including all printing costs associated therewith, and the delivering of copies thereof
to the Initial Purchaser, in the quantities herein above specified, (ii) all costs and expenses
related to the transfer and delivery of the Securities to the Initial Purchaser, including any
transfer or other taxes payable thereon, (iii) the cost of printing or producing any Blue Sky or
legal investment memorandum in connection with the offer and sale of the Securities under state
securities laws and all expenses in connection with the qualification of the Securities for offer
and sale under state securities laws as provided in Section 6(f) hereof, including filing fees and
the reasonable fees and disbursements of counsel for the Initial Purchaser in connection with such
qualification and in connection with the Blue Sky or legal investment memorandum, (iv) any fees
charged by rating agencies for the rating of the Securities, (v) the fees and expenses, if any,
incurred in connection with the admission of the Securities for listing on the Stock Exchange and
trading in PORTAL or any appropriate market system, (vi) the costs and charges of the Trustee and
any transfer agent, registrar or depositary, (vii) the cost of the preparation, issuance and
delivery of the Securities, (viii) the costs and expenses of the Company relating to investor
presentations on any “road show” undertaken in connection with the marketing of the offering of the
Securities, including, without limitation, expenses associated with the preparation or
dissemination of any electronic road show, expenses associated with production of road show slides
and graphics, fees and expenses of any consultants engaged in connection with the road show
presentations with the prior approval of the Company, travel and lodging expenses of the Initial
Purchaser and officers of the Company and any such consultants, and the cost of any aircraft chartered in connection with the road
show, (ix) the cost of the preparation, issuance and delivery of the Securities, (x) all of the
Initial Purchaser’s out of pocket expenses (including the fees and disbursements of its counsel
(including any local counsel)) reasonably incurred by the Initial Purchaser in connection with this
Agreement or the offering contemplated hereunder, (xi) any commission fees on Securities offered
and sold to retail private banks, (xii) the fees and expenses incurred in connection with the
appointment of any agent for service of process under this Agreement and the Indenture and other
agreements contemplated herein or therein and (xiii) all other cost and expenses incident to the
performance of the obligations of the Company hereunder for which provision is not otherwise made
in this Section. The Company will also pay or reimburse the Initial Purchaser (to the extent
incurred by them) for all travel expenses of the Initial Purchaser and the Company’s officers and
employees and any other expenses of the Initial Purchaser and the Company in connection with
attending or hosting meetings with prospective purchasers of the Securities from the Initial
Purchaser.
15
(i) Neither the Company nor any Affiliate will sell, offer for sale or solicit offers to buy
or otherwise negotiate in respect of any security (as defined in the Securities Act) which could be
integrated with the sale of the Securities in a manner which would require the registration under
the Securities Act of the Securities.
(j) Not to solicit any offer to buy or offer or sell the Securities by means of any form of
general solicitation or general advertising (as those terms are used in Regulation D under the
Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of
the Securities Act.
(k) While any of the Securities remain “restricted securities” within the meaning of the
Securities Act, to make available, upon request, to any seller of such Securities the information
specified in Rule 144A(d)(4) under the Securities Act, unless the Company is then subject to
Section 13 or 15(d) of the Exchange Act.
(l) If requested by you, to use its best efforts to permit the Securities to be designated
PORTAL securities in accordance with the rules and regulations adopted by the National Association
of Securities Dealers, Inc. relating to trading in the PORTAL Market.
(m) None of the Company, its Affiliates or any person acting on its or their behalf (other
than the Initial Purchaser) will engage in any directed selling efforts (as that term is defined in
Regulation S) with respect to the Securities, and the Company and its Affiliates and each person
acting on its or their behalf (other than the Initial Purchaser) will comply with the offering
restrictions requirement of Regulation S.
(n) During the period of two years after the Closing Date, the Company will not, and will not
permit any of its affiliates (as defined in Rule 144 under the Securities Act) to resell any of the
Securities which constitute “restricted securities” under Rule 144 that have been reacquired by any
of them.
(o) Not to take any action prohibited by Regulation M under the Exchange Act in connection
with the distribution of the Securities contemplated hereby.
(p) The proceeds from the offering of the Securities shall be used as described in the Time of
Sale Memorandum under “Use of Proceeds”.
The Company also agrees that, without the prior written consent of the Initial Purchaser, it
will not, during the period beginning on the date hereof and continuing to and including the
Closing Date, offer, sell, contract to sell or otherwise dispose of any debt securities of the
Company or warrants to purchase debt securities of the Company substantially similar to the
Securities (other than the sale of the Securities under this Agreement).
7. Offering of Securities; Restrictions on Transfer. (a) The Initial Purchaser represents and
warrants that such Initial Purchaser is a qualified institutional buyer as defined in Rule 144A
under the Securities Act (a “QIB”). The Initial Purchaser agrees with the Company
16
that (i) it will not solicit offers for, or offer or sell, such Securities by any form of general solicitation or
general advertising (as those terms are used in Regulation D under the Securities Act) or in any
manner involving a public offering within the meaning of Section 4(2) of the Securities Act and
(ii) it will solicit offers for such Securities only from, and will offer such Securities only to,
persons that it reasonably believes to be (A) in the case of offers inside the United States, QIBs
and (B) in the case of offers outside the United States, to persons other than U.S. persons
(“foreign purchasers,” which term shall include dealers or other professional fiduciaries in the
United States acting on a discretionary basis for foreign beneficial owners (other than an estate
or trust)) in reliance upon Regulation S under the Securities Act that, in each case, in purchasing
such Securities are deemed to have represented and agreed as provided in the Final Memorandum under
the caption “Transfer Restrictions”. As used in this Section 7(a), the terms “United States” and
“U.S. Person” have the meanings set forth in Regulation S under the Securities Act.
(b) The Initial Purchaser represents, warrants, and agrees with respect to offers and sales
outside the United States that:
(i) such Initial Purchaser understands that no action has been or will be taken in any
jurisdiction by the Company that would permit a public offering of the Securities, or
possession or distribution of the Preliminary Memorandum, the Time of Sale Memorandum, the
Final Memorandum or any other offering or publicity material relating to the Securities, in any
country or jurisdiction where action for that purpose is required;
(ii) such Initial Purchaser will comply with all applicable laws and regulations in each
jurisdiction in which it acquires, offers, sells or delivers Securities or has in its
possession or distributes the Preliminary Memorandum, the Time of Sale Memorandum, the Final
Memorandum or any such other material, in all cases at its own expense;
(iii) the Securities have not been registered under the Securities Act and may not be
offered or sold within the United States or to, or for the account or benefit of, U.S. persons
except in accordance with Rule 144A or Regulation S under the Securities Act or pursuant to
another exemption from the registration requirements of the Securities Act;
(iv) such Initial Purchaser has offered the Securities and will offer and sell the
Securities (A) as part of their distribution at any time and (B) otherwise until 40 days after
the later of the commencement of the offering and the Closing Date, only in accordance
with Rule 903 of Regulation S or as otherwise permitted in Section 7(a); accordingly, neither
such Initial Purchaser, its Affiliates nor any persons acting on its or their behalf have
engaged or will engage in any directed selling efforts (within the meaning of Regulation S)
with respect to the Securities, and any such Initial Purchaser, its Affiliates and any such
persons have complied and will comply with the offering restrictions requirement of Regulation
S;
(v) such Initial Purchaser, in relation to each Member State of the European Economic Area
which has implemented the Prospectus Directive (each, a “Member State”), has represented and
agreed that with effect from and including the date on which the
17
Prospectus Directive is implemented in that Member State it has not made and will not make an offer of Securities to
the public in that Member State, except that it may, with effect from and including such date,
make an offer of Securities to the public in that Member State:
(A) at any time to legal entities which are authorized or regulated to operate
in the financial markets or, if not so authorised or regulated, whose corporate
purpose is solely to invest in securities;
(B) at any time to any legal entity which has two or more of (1) an average of
at least 250 employees during the last financial year; (2) a total balance sheet of
more than €43,000,000 and (3) an annual net turnover of more than €50,000,000, as
shown in its last annual or consolidated accounts; or
(C) at any time in any other circumstances which do not require the publication
by us of a prospectus pursuant to Article 3 of the Prospectus Directive.
For the purposes of the above, the expression an “offer of Securities to the public” in
relation to any Securities in any Member State means the communication in any form and by any
means of sufficient information on the terms of the offer and the Securities to be offered so
as to enable an investor to decide to purchase or subscribe the Securities, as the same may be
varied in that Member State by any measure implementing the Prospectus Directive in that Member
State and the expression “Prospectus Directive” means Directive 2003/71/EC and includes any
relevant implementing measure in that Member State;
(vi) such Initial Purchaser has represented and agreed that it has only communicated or
caused to be communicated and will only communicate or cause to be communicated an
invitation or inducement to engage in investment activity (within the meaning of Section 21
of the Financial Services and Markets Act 2000) in connection with the issue or sale of the
Securities in circumstances in which Section 21(1) of such Act does not apply to us and it
has complied and will comply with all applicable provisions of such Act with respect to
anything done by it in relation to any Securities in, from or otherwise involving the United
Kingdom;
(vii) such Initial Purchaser understands that the Securities have not been and will not
be registered under the Securities and Exchange Law of Japan, and represents that it has not
offered or sold, and agrees not to offer or sell, directly or indirectly, any
Securities in Japan or for the account of any resident thereof except pursuant to any
exemption from the registration requirements of the Securities and Exchange Law of Japan and
otherwise in compliance with applicable provisions of Japanese law; and
(viii) such Initial Purchaser agrees that, at or prior to confirmation of sales of the
Securities, it will have sent to each distributor, dealer or person receiving a selling
concession, fee or other remuneration that purchases Securities from it during the
restricted period a confirmation or notice to substantially the following effect:
18
“The Securities covered hereby have not been registered under
the U.S. Securities Act of 1933 (the “Securities Act”) and may not
be offered and sold within the United States or to, or for the
account or benefit of, U.S. persons (i) as part of their
distribution at any time or (ii) otherwise until 40 days after the
later of the commencement of the offering and the closing date,
except in either case in accordance with Regulation S (or Rule 144A
if available) under the Securities Act. Terms used above have the
meaning given to them by Regulation S.”
Terms used in this Section 7(b) have the meanings given to them by Regulation S.
8. Indemnity and Contribution. (a) Each of the Company and the Guarantors agrees, jointly and
severally, to indemnify and hold harmless the Initial Purchaser, each person, if any, who controls
any Initial Purchaser within the meaning of either Section 15 of the Securities Act or Section 20
of the Exchange Act, and each affiliate of any Initial Purchaser within the meaning of Rule 405
under the Securities Act from and against any and all losses, claims, damages and liabilities
(including, without limitation, any legal or other expenses reasonably incurred in connection with
defending or investigating any such action or claim) caused by any untrue statement or alleged
untrue statement of a material fact contained in the Preliminary Memorandum, the Time of Sale
Memorandum, any Additional Written Offering Communication prepared by or on behalf of, used by, or
referred to by the Company or any Guarantor, or the Final Memorandum or any amendment or supplement
thereto, or caused by any omission or alleged omission to state therein a material fact necessary
to make the statements therein in the light of the circumstances under which they were made not
misleading, except insofar as such losses, claims, damages or liabilities are caused by any such
untrue statement or omission or alleged untrue statement or omission based upon information
relating to any Initial Purchaser furnished to the Company in writing by such Initial Purchaser
through you expressly for use therein.
(b) The Initial Purchaser agrees to indemnify and hold harmless the Company and the
Guarantors, their respective directors and officers and each person, if any, who controls the
Company or any Guarantor within the meaning of either Section 15 of the Securities Act or Section
20 of the Exchange Act to the same extent as the foregoing indemnity from the Company to such
Initial Purchaser, but only with reference to information relating to such Initial Purchaser
furnished to the Company in writing by such Initial Purchaser through you expressly for use in the
Preliminary Memorandum, the Time of Sale Memorandum, any Additional Written Offering
Communication prepared by or on behalf of, used by or referred to by the Company or any
Guarantor, or the Final Memorandum or any amendment or supplement thereto.
(c) In case any proceeding (including any governmental investigation) shall be instituted
involving any person in respect of which indemnity may be sought pursuant to Section 8(a) or 8(b),
such person (the “indemnified party”) shall promptly notify the person against whom such indemnity
may be sought (the “indemnifying party”) in writing and the indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the
19
indemnified party to represent the indemnified party and any others the indemnifying party may
designate in such proceeding and shall pay the fees and disbursements of such counsel related to
such proceeding. In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified
party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the
retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded
parties) include both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential differing interests
between them. It is understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any proceeding or related proceedings in the
same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all such indemnified parties and that all such fees and expenses shall be
reimbursed as they are incurred. Such firm shall be designated in writing by Xxxxxx Xxxxxxx & Co.
Incorporated, in the case of parties indemnified pursuant to Section 8(a), and by the Company, in
the case of parties indemnified pursuant to Section 8(b). The indemnifying party shall not be
liable for any settlement of any proceeding effected without its written consent, but if settled
with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees
to indemnify the indemnified party from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses
of counsel as contemplated by the second and third sentences of this paragraph, the indemnifying
party agrees that it shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have
reimbursed the indemnified party in accordance with such request prior to the date of such
settlement. No indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been sought hereunder by
such indemnified party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in Section 8(a) or 8(b) is unavailable to
an indemnified party or insufficient in respect of any losses, claims, damages or liabilities
referred to therein, then each indemnifying party under such paragraph, in lieu of indemnifying
such indemnified party thereunder, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (i) in such proportion
as is appropriate to reflect the relative benefits received by the Company and the Guarantors on
the one hand and the Initial Purchaser on the other hand from the offering of the Securities or
(ii) if the allocation provided by clause 8(d)(i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred to in clause
8(d)(i) above but also the relative fault of the Company and the Guarantors on the one hand and of
the Initial Purchaser on the other hand in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable
considerations.
20
The relative benefits received by the Company and the Guarantors on the one hand
and the Initial Purchaser on the other hand in connection with the offering of the Securities shall
be deemed to
be in the same respective proportions as the net proceeds from the offering of the Securities
(before deducting expenses) received by the Company and the Guarantors and the total discounts and
commissions received by the Initial Purchaser bear to the aggregate offering price of the
Securities. The relative fault of the Company and the Guarantors on the one hand and of the Initial
Purchaser on the other hand shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or by the Initial Purchaser and the
parties’ relative intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
(e) The Company, the Guarantors and the Initial Purchaser agree that it would not be just or
equitable if contribution pursuant to this Section 8 were determined by pro rata allocation or by
any other method of allocation that does not take account of the equitable considerations referred
to in Section 8(d). The amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in Section 8(d) shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 8, no Initial Purchaser shall be required to
contribute any amount in excess of the amount by which the total price at which the Securities
resold by it in the initial placement of such Securities were offered to investors exceeds the
amount of any damages that such Initial Purchaser has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
The remedies provided for in this Section 8 are not exclusive and shall not limit any rights or
remedies which may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 8 and the
representations, warranties and other statements of the Company and the Guarantors contained in
this Agreement shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of any Initial
Purchaser, any person controlling any Initial Purchaser or any affiliate of any Initial Purchaser
or by or on behalf of the Company or any Guarantor, their respective officers or directors or any
person controlling the Company or any Guarantor and (iii) acceptance of and payment for any of the
Securities.
9. Termination. The Initial Purchaser may terminate this Agreement by notice given by you to
the Company, if after the execution and delivery of this Agreement and prior to the Closing Date
(i) trading generally shall have been suspended or materially limited on, or by, as the case may
be, any of the New York Stock Exchange, the American Stock Exchange, the NASDAQ Global Market, the
Chicago Board of Options Exchange, the Chicago Mercantile Exchange or the Chicago Board of Trade or
the Bolsa Mexicana de Valores, (ii) trading of any securities of the Company shall have been
suspended on any exchange or in any over-the-counter
21
market, (iii) a material disruption in
securities settlement, payment or clearance services in the United States or Mexico shall have
occurred, (iv) any moratorium on commercial banking activities shall have been declared by Federal
or New York State or Mexican authorities or (v) there shall have occurred any outbreak or
escalation of hostilities, or any change in financial
markets, currency exchange rates or controls or any calamity or crisis that, in your judgment,
is material and adverse and which, singly or together with any other event specified in this clause
(v), makes it, in your judgment, impracticable or inadvisable to proceed with the offer, sale or
delivery of the Securities on the terms and in the manner contemplated in the Time of Sale
Memorandum or the Final Memorandum.
10. Effectiveness. This Agreement shall become effective upon the execution and delivery
hereof by the parties hereto.
If this Agreement shall be terminated by the Initial Purchaser because of any failure or
refusal on the part of the Company to comply with the terms or to fulfill any of the conditions of
this Agreement, or if for any reason the Company or any Guarantor shall be unable to perform its
obligations under this Agreement, the Company will reimburse the Initial Purchaser for all
out-of-pocket expenses (including the fees and disbursements of their counsel) reasonably incurred
by the Initial Purchaser in connection with this Agreement or the offering contemplated hereunder.
11. Entire Agreement. (a) This Agreement, together with any contemporaneous written agreements
and any prior written agreements (to the extent not superseded by this Agreement) that relate to
the offering of the Securities, represents the entire agreement between the Company, the Guarantors
and the Initial Purchaser with respect to the preparation of the Preliminary Memorandum, the Time
of Sale Memorandum, the Final Memorandum, the conduct of the offering, and the purchase and sale of
the Securities.
(b) Each of the Company and the Guarantors acknowledges that in connection with the offering
of the Securities: (i) the Initial Purchaser has acted at arms length, are not agents of, and owe
no fiduciary duties to, the Company, the Guarantors or any other person, (ii) the Initial Purchaser
owes the Company and the Guarantors only those duties and obligations set forth in this Agreement
and prior written agreements (to the extent not superseded by this Agreement), if any, and (iii)
the Initial Purchaser may have interests that differ from those of the Company and the Guarantors.
Each of the Company and the Guarantors waives to the full extent permitted by applicable law any
claims it may have against the Initial Purchaser arising from an alleged breach of fiduciary duty
in connection with the offering of the Securities.
12. Counterparts. This Agreement may be signed in any number of counterparts, each of which
shall be an original, with the same effect as if the signatures thereto and hereto were upon the
same instrument.
13. Applicable Law. This Agreement shall be governed by and construed in accordance with the
internal laws of the State of New York.
22
14. Submission to Jurisdiction; Appointment of Agent for Service. Each of the Company and the
Guarantors irrevocably submit to the non-exclusive jurisdiction of any New York State or United
States Federal court sitting in The City of New York over any suit, action or proceeding arising
out of or relating to this Agreement, the Time of Sale Memorandum, the Final Memorandum, the
Indenture or the offering of the Securities. Each of the Company and the Guarantors irrevocably
waive, to the fullest extent permitted by law, any objection which it
may now or hereafter have to the laying of venue of any such suit, action or proceeding
brought in such a court and any claim that any such suit, action or proceeding brought in such a
court has been brought in an inconvenient forum. To the extent that the Company has or hereafter
may acquire any immunity (on the grounds of sovereignty or otherwise) from the jurisdiction of any
court or from any legal process with respect to itself or its property, each of the Company and the
Guarantors irrevocably waive, to the fullest extent permitted by law, such immunity in respect of
any such suit, action or proceeding.
Each of the Company and the Guarantors hereby irrevocably appoint CT Corporation System, with
offices at 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, as its authorized agent (“Authorized
Agent”) for service of process in any suit, action or proceeding described in the preceding
paragraph and agrees that service of process in any such suit, action or proceeding may be made
upon it at the office of such agent. Each of the Company and the Guarantors waive, to the fullest
extent permitted by law, any other requirements of or objections to personal jurisdiction with
respect thereto. Each of the Company and the Guarantors represent and warrant that such Authorized
Agent has agreed to act as the Company’s and the Guarantor’s agent for service of process for the
Company, and the Company agrees to take any and all action, including the filing of any and all
documents and instruments, that may be necessary to continue such appointment in full force and
effect.
15. Judgment Currency. If for the purposes of obtaining judgment in any court it is necessary
to convert a sum due hereunder into any currency other than United States dollars, the parties
hereto agree, to the fullest extent permitted by law, that the rate of exchange used shall be the
rate at which in accordance with normal banking procedures the Initial Purchaser could purchase
United States dollars with such other currency in The City of New York on the business day
preceding that on which final judgment is given. The obligation of the Company and the Guarantors
with respect to any sum due from it to the Initial Purchaser or any person controlling the Initial
Purchaser shall, notwithstanding any judgment in a currency other than United States dollars, not
be discharged until the first business day following receipt by the Initial Purchaser or
controlling person of any sum in such other currency, and only to the extent that the Initial
Purchaser or controlling person may in accordance with normal banking procedures purchase United
States dollars with such other currency. If the United States dollars so purchased are less than
the sum originally due to the Initial Purchaser or controlling person hereunder, the Company and
the Guarantors agree as a separate joint and several obligation and notwithstanding any such
judgment, to indemnify the Initial Purchaser or controlling person against such loss. If the
United States dollars so purchased are greater than the sum originally due to the Initial Purchaser
or controlling person hereunder, the Initial Purchaser or controlling person agrees to pay to the
Company and the Guarantors an amount equal to the excess of the
23
dollars so purchased over the sum
originally due to the Initial Purchaser or controlling person hereunder.
16. No Additional Fees. All payments to be made by the Company under this Agreement shall be
paid free and clear of and without deduction or withholding for or on account of, any present or
future taxes, levies, imposts, duties, fees, assessments or other charges or whatever nature,
imposed by Mexico or by any department, agency or other political subdivision or taxing authority
thereof or therein (the “Taxing Jurisdiction”), and all interest, penalties or similar liabilities
with respect thereto (collectively, “Taxes”), except to the extent required by
law. If any Taxes are required by law to be deducted or withheld in connection with such
payments, the Company will increase the amount paid so that the full amount of such payment is
received by the Initial Purchaser; except to the extent that such Taxes were imposed due to (i)
some connection of the Initial Purchaser or any agent thereof with the Taxing Jurisdiction other
than the mere entering into of this agreement or receipt of payments hereunder, or (ii) the failure
of such Initial Purchaser or its agent, as the case may be, upon the reasonable request of the
Company, to provide any form, certificate, document, or other information that would have reduced
or eliminated such deduction or withholding of Taxes. If the Company pays any additional amount
under this Section 16 to an Initial Purchaser and such Initial Purchaser has received or realized
in connection therewith any refund or any reduction of, or credit against, its Tax liabilities or
other tax benefit with respect to such additional amount (a “Tax Benefit”), such Initial Purchaser
shall, within thirty (30) days of realization of such Tax Benefit, pay to the Company an amount
that is equal to the net benefit, after tax and expenses, as determined in the sole discretion of
the Initial Purchaser, which was obtained by the Initial Purchaser as a consequence of such Tax
Benefit; provided, however, that no amounts shall be owed to the Company in excess of the
additional amount paid by the Company pursuant to this Section 16.
17. Headings. The headings of the sections of this Agreement have been inserted for
convenience of reference only and shall not be deemed a part of this Agreement.
18. Notices. All communications hereunder shall be in writing and effective only upon receipt
and if to the Initial Purchaser shall be delivered, mailed or sent to you in care of Xxxxxx Xxxxxxx
& Co. Incorporated, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: High Yield Syndicate Desk,
with a copy to the Legal Department; and if to the Company shall be delivered, mailed or sent to
Xxxxxxxxx Xxxxxxxx Xxxxxxxx No. 2000, Colonia Centro de Ciudad Santa Fe, Xxxxxx, X.X. 00000,
Xxxxxx.
24
| Very truly yours, MAXCOM TELECOMUNICACIONES, S.A. de C.V. |
||||
| By: | /s/ Xxxxxxx Xxxxxxx I. | |||
| Name: | Xxxxxxx Xxxxxxx I. | |||
| Title: | General Counsel | |||
| MAXCOM SERVICIOS ADMINISTRATIVOS, S.A. de C.V. |
||||
| By: | /s/ Xxxxxxx Xxxxxxx I. | |||
| Name: | Xxxxxxx Xxxxxxx I. | |||
| Title: | General Counsel | |||
| OUTSOURCING OPERADORA de PERSONAL, S.A. de C.V |
||||
| By: | /s/ Xxxxxxx Xxxxxxx I. | |||
| Name: | Xxxxxxx Xxxxxxx I. | |||
| Title: | General Counsel | |||
| TÉCNICOS ESPECIALIZADOS en TELECOMUNICACIONES, S.A. de C.V. |
||||
| By: | /s/ Xxxxxxx Xxxxxxx I. | |||
| Name: | Xxxxxxx Xxxxxxx I. | |||
| Title: | General Counsel | |||
| CORPORATIVO en TELECOMUNICACIONES, S.A. de C.V. |
||||
| By: | /s/ Xxxxxxx Xxxxxxx I. | |||
| Name: | Xxxxxxx Xxxxxxx I. | |||
| Title: | General Counsel | |||
| MAXCOM SF, S.A. de C.V., |
||||
| By: | /s/ Xxxxxxx Xxxxxxx I. | |||
| Name: | Xxxxxxx Xxxxxxx I. | |||
| Title: | General Counsel | |||
| MAXCOM TV, S.A. de C.V. |
||||
| By: | /s/ Xxxxxxx Xxxxxxx I. | |||
| Name: | Xxxxxxx Xxxxxxx I. | |||
| Title: | General Counsel | |||
| MAXCOM USA, Inc. |
||||
| By: | /s/ Xxxxxxx Xxxxxxx I. | |||
| Name: | Xxxxxxx Xxxxxxx I. | |||
| Title: | General Counsel | |||
| Accepted as of the date hereof Xxxxxx Xxxxxxx & Co. Incorporated |
||||
| By: | /s/ Xxxxxx Xxxxxxxxxxx | |||
| Name: | Xxxxxx Xxxxxxxxxxx | |||
| Title: | Managing Director | |||
SCHEDULE I
Time of Sale Memorandum
| 1. | Final Memorandum dated December 13, 2006 | |
| 2. | Preliminary Supplement dated January 5, 2007 to the Final Memorandum |
Schedule II
None.
EXHIBIT A
OFFICER’S CERTIFICATE
[MAXCOM TELECOMUNICACIONES, S.A. DE C.V./GUARANTOR]
This certificate is being furnished pursuant to Section 5(b) of the Purchase Agreement dated as of
January 5, 2007 (the “Purchase Agreement”) among [Maxcom Telecomunicaciones, S.A. de
C.V./Guarantor] (the “Company”), [the guarantors named therein / Maxcom Telecomunicaciones, S.A. de
C.V. and the other guarantors named therein] and Xxxxxx Xxxxxxx & Co. Incorporated (the “Initial
Purchaser”).
Terms used and not otherwise defined herein shall have the meaning given to them in the Purchase
Agreement.
The undersigned does hereby certify:
| 1. | A true, correct and complete copy of the incorporation deed, by-laws and other organizational documents of the Company, as amended, is attached hereto as Exhibit A. The by-laws of the Company have been in effect in such form since [ ] and at all subsequent times to and including the date hereof. | ||
| 2. | A true, correct and complete copy of the resolutions duly adopted by the [board of directors / shareholders’ meeting] on [ ], 2006 is attached hereto as Exhibit B. Such resolutions were duly adopted and duly authorized (i) the Indenture, (ii) the issuance and delivery of the Securities, (iii) the execution and delivery of the Purchase Agreement and the Registration Rights Agreement, and (iv) the taking of such other actions and the execution of such further documents in connection with the issuance of the Securities as might be necessary or desirable. Such resolutions have not been amended, modified or rescinded and are in full force and effect on the date hereof. | ||
| 3. | Each person who, as an officer of the Company, signed the Purchase Agreement, the Registration Rights Agreement or any other document or certificate delivered in connection with the issuance of the Securities, was duly appointed, qualified and acting as such officer at the respective times of the signing and delivery thereof and was duly authorized to sign each document on behalf of the Company, and the signature of each such |
| person appearing on each such document is the genuine signature of such officer. | |||
| 4. | As of the date hereof, each person named below is a duly appointed and qualified officer of the Company holding the office or offices set forth opposite each such person’s name, and the signature set forth opposite each such person’s name is his or her genuine signature. |
| Name | Office | Signature | ||
[ ] |
||||
[ ] |
IN WITNESS WHEREOF, the undersigned has caused this certificated to be executed on this
10th day of January, 2007.
| [MAXCOM TELECOMUNICACIONES, S.A. DE
C.V./GUARANTOR] |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
I, ,
of [Maxcom Telecomunicaciones S.A. de C.V./Guarantor],
in my capacity as do hereby certify that is the duly elected , qualified
and acting of [Maxcom Telecomunicaciones S.A. de C.V./Guarantor] and that the signature
set forth above is his genuine signature.
EXHIBIT B
OPINION OF XXXXXXXX & XXXXX LLP,
U.S. COUNSEL FOR THE COMPANY
U.S. COUNSEL FOR THE COMPANY
EXHIBIT C
OPINION OF SOLERTIA ASESORES, S.C. (XXXXXXX ABOGADOS),
MEXICAN COUNSEL FOR THE COMPANY
MEXICAN COUNSEL FOR THE COMPANY
EXHIBIT D
OPINION OF XXXXXXX, ANGOITIA, XXXXXX X XXXXXXX, S.C.
