Contract
EXHIBIT
4.27
PURCHASE
AGREEMENT dated as of March 31, 2005, (the “Agreement”),
among
ABN
AMRO
BANK (MEXICO), S.A., Institución de Banca Múltiple,
Division Fiduciara, not in its individual capacity but solely as trustee
(the
“Trustee”)
of,
and in satisfaction of the purposes of, the irrevocable administration, issuance
and payment trust (the “Trust”
or the
“Issuer”)
created pursuant to the Trust Agreement referred to below, COMPAÑÍA VIDRIERA,
S.A.
DE C.V., a corporation organized under the laws of the United Mexican States
(“Covisa”),
INDUSTRIA DEL ÁLCALI, S.A. DE C.V., a corporation organized under the laws of
the United Mexican States (“Álcali”),
COMERCIALIZADORA ÁLCALI, S. DE X.X. DE C.V., a limited liability company
organized under the laws of the United Mexican States (“Comercializadora”), and
Coöperatieve Centrale Raiffeisen-Boerenleenbank B.A. “Rabobank International”,
New York Branch, a financial institution organized under the laws of the
Kingdom
of the Netherlands, acting through its branch office licensed by the State
of
New York (the “Purchaser”).
WHEREAS,
Covisa, Álcali and Comercializadora, as settlors (individually, a “Settlor”
and
collectively, the “Settlors”),
the
Trustee and
Banco
Invex, S.A., Institución de Banca Múltiple, Invex Grupo Financiero, as
common
representative (the “Common
Representative”),
have
entered into an Irrevocable Administration, Issuance and Payment Trust Agreement
(Contrato
de Fideicomiso Irrevocable de Emisión, Administración y
Pago)
dated
as of March 23,
2005
(the
“Trust
Agreement”),
providing for the establishment of the Trust;
WHEREAS,
the
assets of the
Trust
will include, among other things, a pool of receivables
(the “Receivables”)
generated from time to time
by
the
Settlors and sold to the Trust pursuant
to the Assignment Agreement (Contrato
de Cesion de Derechos al Cobro)
dated
as of March
23,
2005 (the “Assignment
Agreement”),
among
the Settlors and the Trustee;
WHEREAS,
pursuant to the Trust Agreement, the Trust will issue $19,000,000.00 Dollars
(nineteen million Dollars 00/100, currency of the United States of America)
principal
amount of its ten point seventy five per cent (10.75%)
Subordinated Certificates (Certificados
Subordinados)
(the
“Certificates”),
each
of which Certificates will constitute a Trust payment obligation, backed
by the
Trust's
ownership interest in the Receivables and the other assets of the Trust (the
Receivables and such other assets, the “Trust
Assets”);
and
WHEREAS,
the Issuer wishes to sell to the Purchaser, and the Purchaser wishes to buy
from
the Issuer, the Certificates on the terms and subject to the conditions
hereinafter set forth:
NOW,
THEREFORE, in consideration of the premises and the mutual covenants herein
contained, the parties hereby agree as follows:
ARTICLE
1
Definitions
SECTION
1.1 Certain
Terms. The
following terms when used in this Agreement, including its preamble and
recitals, shall have the following meanings (such definitions to be equally
applicable to the singular and plural forms thereof):
“Basic
Documents”
shall
mean the Trust Agreement, the Assignment Agreement, this Agreement, the
Acta
de Emisión
(as such
term is defined in the Trust Agreement) and the Guaranty Agreement,
collectively.
SECTION
1.2 The
Trustee.
All
references herein to the Trustee shall mean the Trustee acting to satisfy
the
purposes of the Trust.
ARTICLE
2
The
Certificates
SECTION
2.1 Sale
and Delivery of the Certificates. (a)
On
the
basis of the representations and warranties and subject to the terms and
conditions set forth herein and in the Trust Agreement, the Issuer agrees
that
it will sell to the Purchaser, and the Purchaser agrees that it will purchase
from the Issuer, on the Closing Date (as defined in Section 2.2), the
Certificates, which on the Closing Date shall represent an aggregate principal
amount of $19,000,000.00 Dollars (nineteen million Dollars 00/100, currency
of
the United States of America). On the Closing Date, the Issuer shall deliver
to
the Purchaser the Certificates, duly executed by one or more officers of
the
Trustee authorized to act on behalf of the Trust (delegados
fiduciarios),
and
registered in the name of the Purchaser or its nominee.
(b)
As
payment in full for the Certificates, on the Closing Date, the Purchaser
shall
deliver to or upon the order of the Trustee, by wire transfer of immediately
available funds, $19,000,000.00 Dollars (nineteen million Dollars 00/100,
currency of the United States of America) (the “Purchase
Price”).
It is
understood and agreed that the Trustee shall deliver the Certificates to
the
Purchaser simultaneously with the delivery to the Trustee of the Purchase
Price.
SECTION
2.2 Closing
Date.
The
purchase and sale of the Securities will take place at a closing to be held
at
the offices of Cravath, Swaine & Xxxxx, LLP, 000 Xxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000; at 11:00am on March 31, 2005 (the “Closing
Date”).
ARTICLE
3
Representations
and Warranties of the
Issuer
The
Trustee, acting to satisfy the purposes of the Trust, hereby affirms each
of its
representations, warranties and covenants set forth in the other
Basic
2
Documents
for the benefit of the Purchaser, as though each such representation, warranty
and covenant were set forth herein; provided
that,
the
remedy for breach of any such representation, warranty or covenant shall
be the
remedy set forth in the relevant Basic Document, but shall be enforceable
directly by the Purchaser against the Trustee, acting to satisfy the purposes
of
the Trust. The Trustee, acting to satisfy the purposes of the Trust, further
represents and warrants to, and agrees with, the Purchaser as
follows:
(a)
The
Issuer is an irrevocable administration, issuance and payment trust (fideicomiso)
that
has
been duly established under the laws of the United Mexican States. The Trustee
is a banking institution that has been duly established and is validly existing
under the laws of the United Mexican States, has all requisite power and
authority to enter into the Trust Agreement, to act as trustee thereunder
and to
perform and observe the provisions of the Trust Agreement to be performed
and
observed by it as trustee thereunder. The Trust Agreement has been duly
authorized, executed and delivered by the Trustee, and, assuming due
authorization, execution and delivery by the Settlors and the Common
Representative, constitutes a valid and legally binding obligation of the
Trustee, enforceable against the Trustee in accordance with its terms, subject
to applicable bankruptcy, insolvency, reorganization, moratorium and other
similar laws relating to or affecting creditors’ rights generally, and the
Trustee, acting to satisfy the purposes of the Trust, has all requisite power
and authority and all necessary consents, approvals, authorizations, orders,
registrations, qualifications, licenses and permits of and from all public,
regulatory or governmental agencies and bodies to establish the Trust and
to
own, lease and operate the Trust’s properties and conduct the Trust’s business
as now being conducted, is duly qualified to hold the Trust Assets and to
enter
into and deliver each of the Basic Documents and this Agreement, and to perform
its obligations hereunder and thereunder.
(b)
On
the
Closing Date, the Issuer will have duly authorized by all necessary action
the
execution, delivery and performance of each Basic Document to which it is
a
party, each other document required to be delivered pursuant hereto and thereto
and the consummation of the transactions provided for herein and therein.
The
Issuer has duly executed and delivered each Basic Document to which it is
a
party. Each such Basic Document constitutes a legal, valid, and binding
obligation of the Issuer, enforceable against the Issuer in accordance with
its
terms, except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium and other similar laws now or hereafter
in effect affecting the enforcement of creditors’ rights generally.
(c)
The
Trustee (i) is not in violation of the Trust Agreement, (ii) in its
capacity as Trustee is not a party to nor bound by, nor are the Trust Assets
subject to, any agreement, indenture, mortgage, deed of trust, loan agreement
or
instrument other than the Trust Agreement, the Assignment Agreement and any
other agreement contemplated under the Trust Agreement to be entered into
by the
Trustee in furtherance of the purpose of the Trust and the Basic Documents
and
is not in default, and no event has occurred which, with notice or lapse
of time
or both, would constitute such a default, in the due performance or observance
of any term, covenant or condition contained in the Trust Agreement or in
any
Basic Document and (iii) is not in violation of any law,
ordinance,
3
governmental
rule, regulation or court decree to which the Trust or the Trust Assets is
subject.
(d)
All
material approvals, authorizations, consents, orders and other actions of
any
Person, any governmental body or official and any third party required in
connection with the execution and delivery by the Issuer of the Basic Documents
and the Trust Agreement, the performance by the Issuer of the transactions
contemplated hereby and thereby and the fulfillment by the Issuer of the
terms
hereof and thereof have been obtained, including, without limitation, the
approval of Banco de México., except for (i) the registration of the
Certificates with the Special Section of the National Registry of Securities
maintained by the Mexican National Banking and Securities Commission (the
“CNBV”)
(which
approval has been obtained, subject to filing any necessary documents) and
(ii) the delivery by the Issuer to the Secretaría de Hacienda y Crédito
Público (the Ministry of Finance and Public Credit; the “Ministry”)
of
certain information so that withholding taxes in respect of the Certificates
may
be reduced to 4.9% for the period prescribed by applicable Mexican law.
(e)
The
Certificates have been duly authorized by the Issuer and, when duly executed,
authenticated, issued and delivered in accordance with the Trust Agreement
and
paid for in accordance with the terms hereof, will constitute legal, valid
and
binding obligations of the Issuer, enforceable against the Issuer in accordance
with their terms.
(f)
The
execution, delivery and performance of the Basic Documents, the issue, sale
and
delivery of the Certificates and the consummation of the other transactions
contemplated by the Basic Documents (and compliance with the terms thereof)
do
not and will not conflict with or result in a breach of any of the terms
or
provisions of any law applicable to the Issuer or any of the terms or provisions
of any law applicable to the Issuer or any of the terms or provisions of,
or
constitute (with or without notice or lapse of time or both) a default under,
any governing documents of the Issuer.
(g)
Except
for withholding taxes payable in connection with interest payments in respect
of
the Certificates, there is no tax, duty, levy, impost, deduction, charge
or
withholding imposed by Mexico or any political subdivision or taxing authority
thereof or therein by virtue of the issuance, execution, delivery, performance
or enforcement of any of the Basic Documents or of any other document to
be
furnished thereunder, other than fees for registration of the Trust Agreement
and the Assignment Agreement in the Public Registry of Commerce.
(h)
Each
of
the Basic Documents to which the Issuer is a party is in proper legal form
for
the enforcement thereof against the Trustee, as trustee under the Trust,
in the
United Mexican States; provided
that,
any legal proceedings in Mexican courts would be based upon a Spanish
translation of any Basic Documents executed in English, which translation
would
be prepared by a court-approved translator and approved by the court after
the
defendant had been given an opportunity to be heard with respect to the accuracy
of the translation.
4
(i)
It
is not
necessary under the laws of Mexico that any of the holders of the Certificates
be licensed, qualified or entitled to carry on business in Mexico by reason
of
execution, delivery, performance or enforcement of any of the Basic
Documents.
(j)
The
Issuer is not required to be registered under the U.S. Investment Company
Act of
1940, as amended.
(k)
The
Trust
Assets as of the Closing Date will be held by the Trustee (on behalf of the
Trust) free and clear of all liens, security interests, charges, encumbrances,
defects and claims, except as expressly permitted by the Basic
Documents.
(l)
Neither
the Issuer nor the Trustee nor any of its properties or assets has any immunity
from the jurisdiction of any court or from any legal process (whether through
service or notice, attachment prior to judgment, attachment in aid of execution,
execution or otherwise).
(m)
The
Issuer shall obtain, make and keep in full force and effect all authorizations
from and registrations with governmental authorities that may be required
for
the issuance, validity or enforceability against the Issuer of the Basic
Documents.
(n)
The
Trust
is not subject to tax (including without limitation, income and asset tax
and
except for value-added taxes imposed on the relevant obligor under the
Receivables) imposed by Mexico or any political subdivision or taxing
jurisdiction thereof.
(o)
The
Issuer shall, as soon as practicable, complete registration of the Securities
with the Special Section of the National Registry of Securities maintained
by
CNBV.
ARTICLE
4
Representations
and Warranties of the Settlors
Each
of
the Settlors hereby affirms each of its representations, warranties and
covenants set forth in the other Basic Documents for the benefit of the
Purchaser, as though each such representation, warranty and covenant were
set
forth herein; provided
that,
the
remedy for breach of any such representation, warranty or covenant shall
be the
remedy set forth in the relevant Basic Document, but shall be enforceable
directly by the Purchaser against the Settlors. Each of the Settlors further
represents and warrants to, and agrees with, the Purchaser as
follows:
(a)
On
the
Closing Date, each of the Settlors will have duly authorized by all necessary
action the execution, delivery, and performance of each Basic Document to
which
it is a party, each other document required to be delivered by it pursuant
thereto and the consummation of the transactions provided for herein and
therein.
5
(b)
Each
of
the Settlors has the power and authority to enter into each of the Basic
Documents to which it is a party.
(c)
Each
of
the Settlors has duly executed and delivered each Basic Document to which
it is
a party. Each such Basic Document constitutes a legal, valid, and binding
obligation of such party, enforceability against such party in accordance
with
its terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium and other similar laws
now or
hereafter in effect affecting the enforcement of creditors’ rights
generally.
(d)
There
are
no proceedings or investigations pending or, to the best knowledge of the
Settlors, threatened against the Issuer or the Settlors, before any court,
regulatory body, administrative agency, or other tribunal or governmental
instrumentality (A) asserting the invalidity of any of the Basic Documents,
(B) seeking to prevent the issuance of the Certificates or the consummation
of any of the transactions contemplated hereby, (C) seeking any
determination or ruling that, in the reasonable judgment of the Settlors,
would
materially and adversely affect the performance by the Issuer or any of the
Settlors of its obligations under the Basic Documents, (D) seeking
any
determination or ruling that would materially and adversely affect the validity
or enforceability of any of the Basic Documents or the Certificates or
(E) seeking to affect adversely the income tax or franchise tax attributes
of the Trust under Mexican federal or state income or franchise tax
systems.
(e)
The
Trust
Assets are not subject to, any agreement, indenture, mortgage, deed of trust,
loan agreement or instrument other than the Trust Agreement and any other
agreement contemplated under the Trust Agreement to be entered into by the
Trustee in furtherance of the purposes of the Trust and the Basic Documents
and
is not in default, and no event has occurred which, with notice or lapse
of time
or both, would constitute such a default, in the due performance or observance
of any term, covenant or condition contained in the Trust Agreement or in
any
Basic Document.
(f)
All
material approvals, authorizations, consents, orders or other actions of
any
person or of any governmental body or official required in connection with
the
execution and delivery by the Settlors of this Agreement and the other Basic
Documents, the performance by the Settlors of this Agreement and the other
Basic
Documents, the performance by the Issuer and the Settlors of the transactions
contemplated hereby and thereby, the fulfillment by the Settlors of the terms
hereof and thereof have been obtained, including, without limitation, the
approval of Banco de México., except for (i) the Registration of the
Certificates with the Special Section of the National Registry of Securities
maintained by the CNBV (which approval has been obtained, subject to filing
any
necessary documents) and (ii) the delivery by the Issuer to the Ministry
of
certain information so that withholding taxes in respect of the Securities
may
be reduced to 4.9% for the period prescribed by applicable Mexican
law.
(g)
Each
of
the Settlors has been duly organized and is validly existing under the laws
of
Mexico, with all requisite power and authority to own its properties, to
conduct
its business and to perform its obligations under the Basic
Documents.
6
(h)
The
Certificates have been duly authorized by the Issuer and, when duly executed,
authenticated, issued and delivered in accordance with the Trust Agreement
and
paid for in accordance with the terms hereof, will constitute legal, valid
and
binding obligations of the Issuer; enforceable against the Issuer in accordance
with their terms.
(i)
None
of
the Settlors is in violation of its governing documents or in default in
any
material respect in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage, loan
agreement, note or any other agreement or instrument to which it is a party
or
by which it may be bound or to which any of its material properties or assets
may be subject.
(j)
The
execution, delivery and performance of the Basic Documents, the issue, sale
and
delivery of the Certificates and the consummation of other transactions
contemplated by the Basic Documents (and compliance with the terms thereof)
do
not and will not conflict with or result in a breach of any of the terms
or
provisions of any law applicable the Settlors or any of the terms or provisions
of, or constitute (with or without notice or lapse of time or both) a default
under, the governing documents the Settlors, or any indenture, trust deed,
mortgage or other agreement or instrument to which any of the Settlors is
a
party or by which any of them may be bound or to which any of them or any
of
their respective material properties or assets may be subject or contravene
any
applicable law, rule, regulation, judgment, order or decree of any government,
governmental body or agency or court, domestic or foreign, having jurisdiction
over any of the Settlors or any of their respective material properties or
assets, except for such conflicts or breaches which, individually or in the
aggregate, would not have a material adverse affect on the business, operations,
properties, financial condition, results of operations or prospects of the
Settlors, taken as a whole.
(k)
Neither
the Settlors nor any of their respective properties or assets has any immunity
from the jurisdiction of any court or from any legal process (whether through
service or notice, attachment prior to judgment, attachment in aid of execution,
execution or otherwise).
(l)
Except
for withholding taxes payable in connection with interest payments in respect
of
the Certificates and for payment of fees hereunder, there is no tax, duty,
levy,
impost, deduction, charge or withholding imposed by Mexico or any political
subdivision or taxing authority thereof or therein by virtue of the issuance,
execution, delivery, performance or enforcement or any of the Basic Documents
or
of any other document to be furnished thereunder, other than fees for
registration of the Trust Agreement and the Assignment Agreement in the Public
Registry of Commerce.
(m)
Each
of
the Basic Documents to which any of the Settlors is a party is in proper
legal
form for the enforcement thereof against the Settlors in the United Mexican
States; provided
that,
any legal proceedings in Mexican courts would be based upon a Spanish
translation of any Basic Documents executed in English, which translation
would
be prepared by a court-approved translator and approved by the
court
7
after
the
defendant had been given an opportunity to be heard with respect to the accuracy
of the translation.
(n)
It
is not
necessary under the laws of Mexico for any of the holders of the Certificates
to
be licensed, qualified or entitled to carry on business in Mexico by reason
of
the execution, delivery, performance or enforcement of any of the Basic
Documents.
(o)
Neither
the holders of the Certificates nor any paying agent in respect of the
Certificates will be deemed resident, domiciled, carrying on business or
subject
to taxation in Mexico solely by reason of the execution, delivery, performance
or enforcement of any of the Basic Documents.
(p)
The
Trust
Assets as of the Closing Date will be held by the Trustee (on behalf of the
Trust) free and clear of all liens, security interests, charges, encumbrances,
defects and claims, except as expressly permitted by the Basic
Documents.
(q)
None
of
the Trust Assets is subject to tax (including, without limitation, income
and
asset tax and except for value-added taxes imposed on the relevant obligor
under
the Receivables) imposed by Mexico or any political subdivision or taxing
jurisdiction thereof.
(r)
No
event
has occurred which may affect the validity or enforceability of any of the
Basic
Documents;
(s)
Each
of
the Settlors acknowledges and agrees that the terms of this Agreement and
the
Trust Agreement are the basis for the execution by the Purchaser of this
Agreement and for the purchase of the Certificates.
(t)
None
of
the Settlors is in violation of any statute, regulation, directive, resolution,
decree or judgment, which violation could have a material adverse effect
on such
Settlor or its financial condition.
(u)
None
of
the Settlors has knowledge of any materially adverse circumstance that may
affect its financial condition, or the validity, effectiveness or enforceability
of this Agreement or any other Basic Document.
ARTICLE
5
Representations
and
Warranties of the Purchaser
In
order
to induce the Issuer to sell the Certificates to the Purchaser, the Purchaser
hereby agrees, acknowledges, represents, warrants and covenants with and
to the
Issuer and the Settlors that:
(a)
The
Securities have not been and will not be registered under the U.S. Securities
Act of 1933 (the “Securities
Act”)
or any
other applicable securities law and
8
may
not
be offered, sold, reoffered or resold except in accordance with Rule 144A
under
the Securities Act or pursuant to any other exemption from, or in a transaction
not subject to, the registration requirements of the Securities Act and,
accordingly, that the Certificates may not be offered, sold, transferred,
pledged, hypothecated or otherwise disposed of except as permitted herein
and in
the Trust Agreement.
(b)
It
has
such acknowledge and experience in financial and business matters that it
is
capable of evaluating the merits and risks of an investment in the Certificates.
It is aware that it may be required to, and it is able to, bear the economic
risk of an investment in the Certificates for an indefinite period.
(c)
It
is
purchasing the Certificates for its own account and not with a view to, or
for
offer or sale in connection with, any resale, distribution or other disposition
thereof, subject to the disposition of its property being at all times within
its control, and subject to paragraph (d) below.
(d)
It
will
not offer, sell, transfer, pledge, hypothecate or otherwise dispose of the
Certificates except in accordance with the provisions of the Trust
Agreement.
(e)
The
Purchaser represents and warrants (i) it is duly authorized and empowered
to execute, deliver and perform this Agreement and to purchase the Certificates,
and as duly taken all requisite action in connection therewith; (ii) the
person signing this Agreement on behalf of the Purchaser has been duly
authorized by the Purchaser to do so; (iii) this Agreement is a valid
and
binding legal obligation of the Purchaser, enforceable against the Purchaser
in
accordance with its terms except as such enforceability maybe limited by
applicable bankruptcy, insolvency, reorganization, moratorium and other similar
laws relating to or affecting creditors’ rights generally, and subject as to
enforceability to general equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or at law); and
(iv) the execution, delivery and performance of this Agreement and
the
purchase of the Certificates do not and will not conflict with, violate or
constitute a default under any applicable law or regulation, the Purchaser’s
constitutive documents or any agreement or arrangement to which the Purchaser
is
a party or by which it may be bound.
(f)
The
Purchaser is not acting in a fiduciary capacity in purchasing the
Certificates.
(g)
The
Purchaser acknowledges that the Issuer will rely upon the truth and accuracy
of
the foregoing acknowledgements, agreements, representations and warranties
and
agrees that, if any of the acknowledgements, agreements, representations
or
warranties made or deemed to have been made by it or by its purchase of the
Certificates are no longer accurate, it shall promptly notify the Issuer
and the
Settlors.
(h)
The
Purchaser is not an employee benefit plan. No part of the funds to be used
by
the Purchaser to pay the purchase price of the Certificates purchased hereunder,
directly or indirectly, constitutes “plan assets” of any employee benefit plan
or
9
its
related trust. The term “employee benefit plan” shall have the meaning assigned
to such term in Section 3 of ERISA; and the term “plan assets” shall have
the meaning specified in Department of Labor Regulation Section
2510.3-101.
ARTICLE
6
Conditions
Section
6.1 Conditions to Purchase.
The
obligations of the Purchaser to purchase and pay for the Certificates being
purchased by it hereunder are, at its option, subject to the satisfaction,
on or
before the Closing Date, of the following conditions:
(a) the
representations and warranties of the Trustee and the Settlors contained
in the
Basic Documents shall be true and correct in all material respects on and
as of
the Closing Date as if made on and as of such date, except to the extent
such
representations and warranties expressly relate to a particular date, in
which
case such representations and warranties shall be true and correct on and
as of
such date, and the Purchaser shall received a certificate dated the closing
date
from an officer of each of the Issuer and the Settlors to such
effect;
(b) on
or
prior to the Closing Date, there shall have been delivered to the Purchaser
in
form and substance satisfactory to the Purchaser copies of (i) the approval
given by Banco de México to the Trustee for the creation of the Trust and the
issuance of the Certificates thereby and (ii) the approval given by the CNBV
for
the registration of the Securities with the Special Section of the National
Registry of Securities and Intermediaries maintained by the CNBV;
(c) each
Basic Document and any other agreements necessary for the consummation of
the
transactions contemplated hereby and thereby shall have been executed and
delivered on or prior to the Closing Date in a form satisfactory to the
Purchaser;
(d) at
the
Closing Date, (i) there shall have been no material adverse change,
or any
development involving a prospective material adverse change, in the condition
(financial or otherwise), business prospects, results of operations or business
affairs of the Settlors taken as a whole since December 31, 2004,
and
(ii) there shall have been delivered to the Purchaser a certificate
of each
of the Settlors, dated the closing Date, signed by a duly authorized officer
thereof to such effect;
(e) the
Certificates shall have been executed, authenticated and delivered on or
prior
to the Closing Date;
(f) on
or
prior to the Closing Date, there shall have been delivered to the Purchaser,
in
form and substance satisfactory to the Purchaser, opinions of counsel with
respect to such matters as the Purchaser may reasonably request from: (i)
Forastieri Abogados, S.C., Mexican counsel to the Purchaser; and (ii)
00
Xxxx
Xxxxx, Xxxxxxx Xxxxxx, Xxxxxxxx y Xxxxx, S.C., Mexican counsel to the Issuer and
the Settlors;
(g) on
or
prior to the Closing Date, there shall have been delivered to the Purchaser,
in
form and substance satisfactory to the Purchaser, a copy of a notarized
power-of-attorney relating to the authority of each Settlor;
(h) on
or
prior to the Closing Date, the Trust Assets shall be free and clear of all
liens, security interests, charges, encumbrances, defects and claims, except
as
expressly permitted by the Basic Documents;
(i) on
or
prior to the Closing Date, there shall have been delivered to the Purchaser,
in
form and substance satisfactory to the Purchaser, a certificate of a duly
authorized officer of each of the Issuer and the Settlors as to the authority,
incumbency and specimen signatures of the persons who have executed or will
execute each of the Basic Documents and the other instruments and documents
to
be executed and delivered hereunder and thereunder by the Issuer and the
Settlors, and such other documents, opinions and certificates as the Purchaser
or its counsel may reasonably require;
(j) there
shall have been delivered to the Purchaser a certificate, dated the Closing
Date, signed by a duly authorized officer of each of the Issuer and the Settlors
to the effect that (x) the representations and warranties of such party herein
are true, accurate and correct in all material respects at, and as if made
on,
the Closing date and (y) such party has performed in all material
respects
all of its obligations hereunder to be performed on or before the Closing
Date;
(k) there
shall have been delivered to the Purchaser a copy of any notarized
power-of-attorney of the Trustee whereby officers of the Trustee are appointed
attorneys-in-fact of the Trustee will power to execute the Certificates,
the
Basic Documents and any other documents necessary or advisable in connection
with the issuance of the Certificates;
(l) on
the
Closing Date, the Purchaser shall have received from CT Corporation System
(i) a
letter, dated on or prior to the Closing Date to the effect that is accepts
the
appointment to receive on behalf of the Issuer and the Settlors, respectively,
service of process which may be served in any legal action or proceeding
arising
out of or in connection with the Basic Documents, and (ii) a copy of the
public
deed or public deeds granted by the Trustee, in its capacity as Trustee,
and by
the Settlors whereby the granting of general powers of attorney for lawsuits
and
collections in accordance with the first paragraph of section 2,554 of the
Civil
Code for the Federal District of Mexico (Código
Civil para el Distrito Federal)
and its
correlative sections of the Federal Civil Code of Mexico (Código
Civil Federal)
and the
Civil Codes of the States of Mexico in favor of such agent for service of
process are notarized; and
11
(m) Vitro,
S.A. de C.V., shall have duly executed and delivered the Guaranty dated as
of
the Closing Date in favor of the holders of the Certificates.
The
Purchaser may, at its discretion and upon such terms as it deems fit, waive
compliance with the whole or any part of this Section.
ARTICLE 7
Miscellaneous
SECTION
7.1 Survival
of Agreements.
All
covenants, agreements, representations, warranties and indemnities made herein
shall survive the execution and delivery of this Agreement and the sale of
the
Certificates pursuant hereto and notwithstanding any investigation made by
or on
behalf of the Purchaser or its agents, representatives or
affiliates.
SECTION
7.2 Expenses.
The
Settlors shall pay (i) the reasonable and documented costs incident
to the
authorization, issuance, sale and delivery of the Certificates and any stamp,
value added or transfer taxes payable in Mexico in connection therewith;
(ii) the reasonable and documented costs incident to negotiating,
preparing
and executing the Basic Documents and all other documents required in connection
therewith; (iii) any fees payable to the CNBV in connection with the
registration of the Securities with the Special Section of the National Registry
of Securities maintained by the CNBV; (iv) the fees and expenses of
Mexican
counsel to the Trust and the Settlors, and of Cravath, Swaine & Xxxxx, U.S.
counsel to the Trust and the Settlors; (v) the reasonable and documented
out-of-pocket expenses of the Purchaser, including the reasonable fees and
expenses of U.S. counsel to the Purchaser, and Forastieri Abogados, S.C.,
Mexican counsel to the Purchaser, incurred in connection with the Basic
Documents and the transactions contemplated thereby; and (vi) all
other
reasonable and documented costs and expenses incident to the performance
of the
obligations of the Issuer and the Settlors under the Basic
Documents.
SECTION
7.3 Indemnification.
(a)
Each
of
the Settlors, jointly and severally, agrees that it will indemnify and hold
harmless the Purchaser and its directors, officers, employees and controlling
persons from and against any and all losses, liabilities, costs, claims,
damages
and expenses (including reasonable attorney’s fees) which any of them may incur
(as incurred) or which may be made against any of them, insofar as such losses,
liabilities, costs, claims, damages or expenses arise out of or are in relation
to or are in connection with any breach or alleged failure to perform the
representations, warranties, covenants and agreements given or made by the
Issuer or the Trustee, acting to satisfy the purposes of the Trust, or the
Settlors in any of the Basic Documents or any other agreement executed pursuant
thereto and will reimburse each such indemnified party for all reasonable
and
documented costs, charges and expenses (as incurred) incurred by it in
connection with investigating, disputing or defending any such action or
claim.
This indemnity will be in addition to any liability that the Settlors and
the
Issuer may otherwise have hereunder and under the other Basic
Documents.
12
(b)
If
any
action, claim or demand shall be brought or alleged against an indemnified
party
in respect of which indemnity is to be sought against the indemnifying party
under this Section 7.3, the indemnified party shall promptly notify
the
indemnifying party in writing, but the failure so to notify an indemnifying
party shall not relieve such indemnifying party from any obligation or liability
it may otherwise have. The indemnified party shall have the right to retain
counsel of its own choice to represent it in connection with such action,
claim
or demand, and the indemnifying party will reimburse the indemnified party
for
the reasonable fees and expenses of such counsel as incurred.
(c)
An
indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened action, claim or demand
in
respect of which indemnification may be sought hereunder (whether or nor
the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or judgment includes an unconditional
release
of each indemnified party from all liability arising out of such action,
claim
or demand.
(d)
To
the
fullest extent permitted by law, each of the Settlors agrees to indemnify
the
Purchaser and its directors, officers, employees and controlling persons
for any
loss arising out of any judgment in respect of which indemnification is provided
pursuant to this Section 7.3 being paid in a currency (the “Judgment
Currency”)
other
than United States dollars and resulting from any variation between (i) the
rate of exchange at which United States dollars are converted into the Judgment
Currency for the purpose of such judgment or order and (ii) the rate
of
exchange at which the indemnified party is able to purchase United States
dollars with the amount of the Judgment Currency actually received by the
indemnified party. The foregoing indemnity shall constitute a separate and
independent obligation of the Settlors and shall continue in full force and
effect notwithstanding any such judgment or order as aforesaid. The term
“rate
of exchange” shall include any premiums and costs of exchange payable in
connection with the purchase of, or conversion into, the relevant currency.
The
Purchaser agrees that, to the extent that the amount of United States dollars
that it may purchase exceeds the amount originally due to the Purchaser,
it will
return such excess amount to the Settlors.
SECTION
7.4 Additional
Amounts.
If any
amounts to be received by the Purchaser under this Agreement solely as a
result
of entering into, or performing under, this Agreement are subject to any
present
or future taxes, assessments, deductions, withholdings or charges of any
nature
enacted by Mexico or any political subdivision thereof or taxing authority
therein (“Mexican
Taxes”),
then
the Issuer agrees to pay to the Purchaser an additional amount so that the
Purchaser shall retain or receive, after taking into consideration all such
Mexican Taxes, an amount equal to the amounts owed to it under this Agreement
as
if such amounts had not been subject to Mexican Taxes. If any Mexican Taxes
are
collected by deduction or withholding, the party making the payment required
by
the preceding sentence shall provide to the Purchaser copies of documents
evidencing the transmittal to the proper authorities of the amount of Mexican
Taxes deducted or withheld.
13
SECTION
7.5 Parties
in Interest.
All
covenants and agreements contained in this Agreement by or on behalf of any
of
the parties hereto shall bind and inure to the benefit of the respective
successors and assigns of the parties hereto whether so expressed or
not.
SECTION
7.6 Notices.
All
notices, requests, consents and other communications hereunder to any party
shall be in writing and shall be delivered in person, or sent by fax or
recognized international courier service to such party at the address or
fax
number set forth below its signature to this Agreement, or, in any case,
at such
other address or fax number as shall have been furnished in writing to the
other
parties hereto.
SECTION
7.7 Submission
to Jurisdiction; Waivers. (a)
Any
suit,
action or proceeding relating in any way to this Agreement may be brought
and
enforced in any United States Federal or New York State court sitting in
the
City and County of New York, and each party to this Agreement irrevocably
submits to the jurisdiction of each such court in respect of any such suit,
action or proceeding; provided
that, if
for whatever reason any United States Federal court sitting in the City and
County of New York will not or cannot hear such suit, action or proceeding,
it
may be brought and enforced in the courts of the State of New York in the
City
and County of New York, and each party to this Agreement hereby irrevocably
submits to the jurisdiction of each such court in respect of any such suit,
action or proceeding and, to the extent permitted by law, waives any defense
or
objection to such jurisdiction. Each party hereto irrevocably waives, to
the
fullest extent permissible under applicable law, any objection that it may
now
or hereafter have to the venue of any such suit, action or proceeding in
any
such court, or the defense of an inconvenient forum to the maintenance of
such
suit, action or proceeding. Until the payment in full of the Certificates,
each
of the Issuer and the Settlors agrees to maintain an office or appoint an
agent
in New York City where or upon whom process may be served in any such suit,
action or proceeding. Each of the Issuer and the Settlors hereby irrevocably
appoints CT Corporation System, with offices at the date hereof at
000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Xxxxxx Xxxxxx, , as its
agent
to receive service or process or other legal summons for purposes of any
such
suit, action or proceeding. For purposes of the foregoing, the Issuer and
the
Settlor shall grant general powers of attorney for lawsuits and collections
to
such agent for service of process in accordance with the first paragraph
of
section 2,554 of the Civil Code for the Federal District of Mexico (Código
Civil para el Distrito Federal)
and its
correlative sections of the Federal Civil Code of Mexico (Código
Civil Federal)
and the
Civil Codes of the States of Mexico before a Mexican Notary Public to the
satisfaction of the Purchaser.
(b)
Each
of
the Issuer and the Settlors has irrevocably agreed, to the extent permitted
by
applicable law, that, in any legal action or proceeding arising out of or
in
connection with the Basic Documents (the “Proceedings”)
anywhere (whether for an injunction, specific performance, damages or
otherwise), no immunity (to the extent that it may at any time exist, whether
on
the grounds of sovereignty or otherwise) from those Proceedings, from attachment
(whether in aid of execution, before judgment or otherwise) or from judgment
shall be claimed by it or on its behalf or with respect to its
14
assets,
any such immunity being irrevocably waived. Each of the Issuer and the Settlors
has irrevocably waived any right to which it may be entitled under the laws
of,
or on account of, its place of residence or domicile. Each of the Issuer
and the
Settlors has irrevocably agreed, to the extent permitted by applicable law,
that
it is and its assets are, and shall be, subject to such Proceedings, attachment
or execution in respect of its obligations under the Basic
Documents.
(c)
EACH
OF THE PURCHASER, THE ISSUER AND THE SETTLORS IRREVOCABLY WAIVES ANY RIGHT
IT
MAY NOW OR HEREAFTER HAVE TO A TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING
ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT.
(d) The
parties hereto hereby irrevocably consent to the service of any and all process
in any suit, action or proceeding in any manner permitted by law except by
mail,
and agree that nothing contained herein shall limit the parties right to
xxx in
any jurisdiction. The parties agree that a final judgment in such suit, action
or proceeding shall be conclusive and may be enforced in other jurisdictions
by
suit on the judgment or in any manner provided by law.
SECTION
7.8 GOVERNING
LAW.
THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF
THE
STATE OF NEW YORK (WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAW PRINCIPLES
THEREOF).
SECTION
7.9 Entire
Agreement; Modifications.
This
Agreement and the agreements referred to herein constitute the entire agreement
of the parties with respect to the subject matter hereof, and this Agreement
may
not be modified or amended except in writing.
SECTION
7.10 Counterparts.
This
Agreement may be executed in one or more counterparts, which shall together
constitute one and the same instrument.
SECTION
7.11 Limitation
of Liabilities.
It is
expressly understood and agreed by the parties hereto that (a) this
Agreement is executed and delivered by ABN AMRO Bank (México) S.A. not
individually or personally but solely as Trustee acting to satisfy the purposes
of the Trust, in the exercise of the power and authority conferred and vested
in
it, (b) each of the representations, undertakings and agreements herein
made on the part of the Trustee is made and intended not as a personal
representation, undertaking or agreement by ABN AMRO Bank (México) S.A. but
is made in satisfaction of the purposes of the Trust and intended for the
purpose of binding only the Trust and (c) under no circumstances shall
ABN
AMRO Bank (México) S.A. be personally liable for the payment of any
indebtedness or expenses of the Trust.
[SIGNATURE
PAGE FOLLOWS]
15
IN
WITNESS WHEREOF, the Issuer, the Settlors and the Purchaser have executed this
Agreement as of the day and year first above written.
|
ABN
AMRO BANK (MEXICO) S.A., AS TRUSTEE, ACTING TO SATISFY THE PURPOSES
OF THE
TRUST,
|
|
|
By
|
|
|
Name:
|
|
|
Title:
|
|
|
Address
and Fax Number for Notices:
ABN
AMRO Bank (México), S.A.
Institución
de Banca Múltiple,
División
Fiduciaria
Avenida
Paseo de la Reforma Xx. 000-000
Xxxxxx,
X.X. 00000
Phone:
0000-0000
Facsimile:
5257-7829
Attention:
Xxxxxxxx Xxxxxxxxxx
|
|
00
|
XXXXXXXX
XXXXXXXX, X.X. XX C.V.,
|
||||
|
By
|
By
|
|||
|
Name: Claudio
del Xxxxx
Title: Attorney-in-Fact
|
Name: Xxxxxx
Xxxxxxxxx
Title: Attorney-in-Fact
|
|||
|
Address
and Fax Number for Notices:
Xxxxxxx
Xxxxxxx No. 440
Colonia
Xxxxx del Campestre
San
Xxxxx Xxxxx Xxxxxx, XX 00000, Xxxxxx
Fax:
x00 00 0000 0000
|
||||
|
INDUSTRIA
DEL ÁLCALI, S.A. DE C.V.,
|
||||
|
By
|
By
|
|||
|
Name: Claudio
del Xxxxx
Title: Attorney-in-Fact
|
Name: Xxxxxx
Xxxxxxxxx
Title: Attorney-in-Fact
|
|||
|
|
|
|||
|
Address
and Fax Number for Notices:
Xxxxxxx
Xxxxxxx No. 440
Colonia
Xxxxx del Campestre
San
Xxxxx Xxxxx Xxxxxx, XX 00000, Xxxxxx
Fax:
x00 00 0000 0000
|
||||
|
COMERCIALIZADORA
ÁLCALI, S. DE X.X. DE C.V.,
|
||||
|
By
|
By
|
|||
|
Name: Claudio
del Xxxxx
Title: Attorney-in-Fact
|
Name: Xxxxxx
Xxxxxxxxx
Title: Attorney-in-Fact
|
|||
|
Address
and Fax Number for Notices:
Xxxxxxx
Xxxxxxx No. 440
Colonia
Xxxxx del Campestre
San
Xxxxx Xxxxx Xxxxxx, XX 00000, Xxxxxx
Fax:
x00 00 0000 0000
|
||||
17
|
18
|
