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Trust No. 111174-2
CLOSED-END INVESTMENT TRUST AGREEMENT ENTERED INTO BY THE FIRST PARTY XXXXXXX
XXXXXXX XXXXXXXX IN HIS CAPACITY AS TRUSTOR - TRUSTEE AND THE OTHER PARTY BANCO
NACIONAL DE MEXICO, S.A., MEMBER OF THE BANAMEX FINANCIAL GROUP FIDUCIARY
DIVISION, REPRESENTED IN THIS ACT BY XXXXX DE LOS ANGELES MONETMAYOR XXXXX AND
XXXX XXXXX XXXX XXXXXXX AS FIDUCIARY, IN ACCORDANCE WITH THE FOLLOWING
DECLARATIONS AND SECTIONS:
DECLARATIONS:
I. The Trustor - Trustee, sworn to tell the truth, declares individually and
directly that:
(a) he is a physical person (i) whose personal information is stated in the
document that is attached to this Agreement as Appendix A; (ii) with full
legal capacity to enter into agreements and bind himself under the terms
and conditions of this Agreement; (iii) with full powers to encumber the
property in question herein, and (iv) that he is married under the terms
stated on the respective signatures page of this Agreement so that if
necessary his spouse can give her consent to enter into this Agreement
under the terms provided in the signature pages hereof;
(b) it is his will to enter into this Agreement and place in trust the Initial
Contribution as well as all other Contributions which may become necessary
for the fulfillment of the Purposes of the Trust as set forth in Section
Four of this Agreement;
(c) he manifests that the property and rights placed in this Trust for the
purposes stipulated in this agreement are of lawful origin and moreover he
undertakes to provide to the Fiduciary any information that may be required
of him for the purpose of compliance with the stipulations of article 115
of the Law of Credit Institutions and any and all other regulatory
provisions and internal policies of the Banco Nacional de Mexico, S.A., a
member of the Banamex Financial Group;
(d) it is his will to name Banco Nacional de Mexico, S.A., Banamex Financial
Group, as Fiduciary, to instruct and to authorize it to act in accordance
with the instructions received in writing from the Technical Committee; and
(e) he understands and agrees that (i) this Agreement does not have any legal
force until the Fiduciary, the Trustor - Trustee, and also Trustors -
Trustees who may become parties hereto, and if necessary, their respective
spouses, have given their consent by autographic signatures on the
signature pages of this Agreement and (ii) the only parties to this
Agreement shall be Trustors - Trustees who authorize the Technical
Committee to become party to this agreement, who at the time of their
becoming a party should be executives or persons who provide a service to
Grupo Cemex and under no circumstances shall third parties be permitted to
become members.
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II. The Fiduciary, sworn to tell the truth, declares that:
(a) it is a corporation duly formed and legally existing pursuant to the laws
of Mexico and that it is authorized to be formed and to operate as a
multiple banking institution;
(b) it accepts its designation as Fiduciary, and agrees to take whatever
actions may be necessary to fulfill the purposes of the Trust in accordance
with the instructions it receives from the Technical Committee, and
(c) its representatives possess all the powers and authority necessary to enter
into this Agreement in representation of the Fiduciary, and that said
powers and authority have not been revoked or limited in any way.
Based on the above Declarations, the parties to this Agreement agree to execute
and submit to the provisions of the following:
SECTIONS:
One.- Definitions. The terms used with initial capital letters in this Agreement
shall have the meanings shown below:
"Contributions" means the Initial Contributions and any and all other
amounts of money in Dollars that the Member Trustors place in trust by
deposit in the Trust Account, under the terms set forth in Section Two and
Section Ten of this Agreement.
"Initial Contributions" means the amounts of money in Dollars that
both the Trustor as well as the Member Trustors place in trust on the
Closing Date by deposit in the Trust Account under the terms set forth
in Section Two of this Agreement.
"Agreement" means this Closed-End Investment Trust Agreement.
"CSC's" means (i) the Common Stock Certificates of Cemex, S.A. de C.V.
that are purchased in accordance with the instructions made in that
regard by the Technical Committee; or (ii) any other securities issued
in substitution of, or exchangeable for, said Common Stock
Certificates and which are backed by or are representative shares of
the capital stock of Cemex, S.A. de C.V.
"Purchased CSC's" shall have the meaning that is set forth in
subsection (a) number 5 paragraph (i) of Section Five of this
Agreement.
"Technical Committee" means the Technical Committee of this Trust,
formed under the terms and conditions of Section Nine of this
Agreement.
"Stock Brokerage Agreement" means the stock brokerage agreement that
the Fiduciary shall enter into with the Stock Broker, in accordance
with the
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Brokerage Agreement Instruction, under the terms and conditions of the
provisions of subsection (a) number 6 of Section Five of this
Agreement.
"Option Agreement" means the CSC purchase option agreement planned to
be attached to this Agreement as Appendix B, by virtue of which the
Fiduciary shall have the right to purchase the CSC's of any third
party with whom it is instructed to enter into the Option Agreement,
under the terms indicated by the Technical Committee.
"Trust Account" means the account in CITIBANK NEW YORK, in which the
Trustor and the Member Trustors shall make their deposits in American
Dollars in accordance with the following details: ABA No. 02100089 or
Swift Code XXXXXX00 maintained as an agent of the Fiduciary, Citibank,
N.A., 000 Xxxx Xxxxxx 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx, 00000,
Beneficiary Bank: XXXXXXXX SWIFT CODE) BANCO NACIONAL DE MEXICO, S.A.
(BANAMEX); Beneficiary Customer: Account 0525 0000000, FIDICUIARY
DIVISION, Detail of payment: FFC* Agreement #111174-2.
"Securities Account" means account number 6908 (six thousand nine
hundred eight) in Indeval maintained by the Fiduciary on the Closing
Date.
"Purchase Rights" means the right to purchase the CSC's under the
terms set forth in the Option Agreement.
"Business Day" means any day (excluding Saturdays and Sundays) in which
the credit institutions in Mexico City, Federal District, and in New
York City, New York, USA, are open to the public, and are not
authorized or required to close by law, regulation, decree or any other
provision issued by competent authority.
"Dollars" means the legal currency of the United States of America.
"Closing Date" means the date on which the Fiduciary, the Trustor, and
each and every one of the Member Trustors, and if necessary, their
respective spouses, have given their consent to enter into this
Agreement by autographic signature on the signature page hereof.
"Exercise Date" means each date in which the Fiduciary is empowered to
exercise the Purchase Rights in accordance with the provisions of
Section Twelve herein.
"Trust" means the Trust formed under the terms and conditions of this
Agreement.
"Trustor - Trustee" means Xx. Xxxxxxx Xxxxxxx Xxxxxxxx.
"Member Trustor - Trustee" means any person who upon authorization by
the Technical Committee becomes a party to this Trust Agreement,
understanding the terms and conditions hereof and making their own all
the rights and obligations arising herefrom. At the time of becoming
members said persons should be executives or persons providing
services to Grupo Cemex, and should also sign the Membership Card
which is attached hereto as Appendix C.
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"Trustors - Trustees" means all physical persons who through their
initial contributions become parties to this agreement and therefore
acquire such capacity and make their own the rights and obligations
set forth herein, together with the Trustor - Trustee.
"Fiduciary" means Banco Nacional de Mexico, S.A., member of the
Banamex Financial Group, Fiduciary Division.
"Purposes of the Trust" means collectively the purposes that are set
forth in Section Five of this Agreement.
"Indeval" means S.D. Indeval, S.A. de C.V., institution for Securities
Deposits.
"Instruction for entering into the Brokerage Agreement" shall have the
meaning set forth in subsection (a) number 6 of Section Five of this
Agreement.
"Instruction for entering into the Option Agreement" shall have the
meaning set forth in subsection (a) number 2 of Section Five of this
Agreement.
"Exercise Instruction" shall have the meaning set forth in subsection
(b) number 6 of Section Nine of this Agreement.
"CSC's Delivery Instruction" means the instruction that both the
Trustor and each Member Trustor includes in an Exercise Notice for
following the procedure provided in subsection (a) number 1 of Section
Twelve of this Agreement.
"Investment Instruction" shall have the meaning set forth in
subsection (b) number 5 of Section Nine of this Agreement.
"Modification Instruction" shall have the meaning set forth in
subsection (a) number 2 of Section Five of this Agreement.
"Payment Instruction" shall have the meaning set forth in subsection
(a) number 3 of Section Five of this Agreement.
"CSC's Sale Instruction" means the instruction that both the Trustor
and each Member Trustor includes in an Exercise Notice for following
the procedure provided in subsection (a) number 2 of Section Twelve of
this Agreement.
"Stock Broker" means the exchange house with whom the Fiduciary enters
into the Stock Brokerage Agreement.
"Mexico" means the United Mexican States.
"Exercise Notice" shall have the meaning set forth in subsection (a)
of Section Twelve of this Agreement.
"Liquidation Notice" shall have the meaning set forth in Section Seven
of this Agreement.
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"Trust Assets" means collectively (i) the Initial Contribution; (ii)
any and all of the Contributions of the Member Trustors that are
deposited in the Trust Account; (iii) the Purchase Rights and all
other rights of the Fiduciary according to the Option Agreement; and
(iv) the Purchased CSC's and the proceeds of the sale of the Purchased
CSC's up to the time in which they are distributed to the Trustor
and/or the Member Trustors in accordance with the provisions of this
Contract.
"Internal Policies" shall have the meaning set forth in subsection (m)
of Section Twenty-Three of this Agreement.
"Exercise Price" means the price at which the Fiduciary has the right
to purchase the CSC's according to the Option Agreement.
"Premium" means the premium payable in Dollars by the Fiduciary to the
corresponding third party for the Purchase Rights in accordance with
the Option Agreement.
"Initial Contributions Ratio" means the ratio reflected by the
individual Initial Contributions of each of the Trustors - Trustees to
be maintained by the Fiduciary and the Technical Committee.
"Beneficiaries Ratio" shall have the meaning set forth in Section
Eight of this Agreement.
Two.- Formation of the Trust. The Trustor - Trustee in this act forms the
Revocable Closed-End Investment Trust. For this purpose the Trustor - Trustee
deposits the Initial Contribution of US$ 1,472,976.70 Dollars (ONE MILLION FOUR
HUNDRED SEVENTY-TWO THOUSAND NINE HUNDRED SEVENTY-SIX DOLLARS 70/100 DOLLARS
U.S.) by transfer to the Trust Account. Subsequently, the Member Trustors -
Trustees shall deposit in the same Trust Account the corresponding amounts in
the proportions indicated in the Initial Contributions Ratio, in compliance with
the Purposes of the Trust, and shall also deposit in the Trust Account the
additional Contributions required in accordance with the provisions of Section
Twelve of this Agreement.
The Trust assets, upon authorization by the Technical Committee and the
Fiduciary, may be increased subsequent to their signing, with cash and/or
securities, by the initial and/or additional contributions made by the Trustors
- Trustees.
The Fiduciary shall confirm with the Technical Committee [the] amounts received
as Initial Contributions in the Trust Account no later than 2 (two) Business
Days after the date in which the total amount of the Initial Contributions are
duly deposited in the Trust Account.
The parties understand that the Trust Assets are transferred to the Fiduciary in
compliance with the Purposes of the Trust. The Fiduciary does not assume, and in
this act is released from any liability or obligation, express or implied, with
respect to the authenticity, ownership or legitimacy of the Trust Assets.
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Three.- Trust Assets. The assets of this Trust agreement shall be comprised of
the following property:
i) the initial contribution made by the Trustor - Trustee in this act;
ii) the additional contributions that increase the assets from Initial
Contributions of the Member Trustors - Trustees;
iii) by the purchase rights [exercised and] recorded on behalf of one of
the Trustors - Trustees, under the terms and conditions of this
agreement.
iv) by the interest earned on existing investments in the trust assets;
v) by the securities that are purchased in compliance with the purposes
of this agreement.
Four.- Parties to the Trust. The parties to this Agreement are:
(i) the Trustor - Trustee, Xxxxxxx Xxxxxxx Xxxxxxxx
(ii) the other Trustors - Trustees who upon authorization by the Technical
Committee become parties to this agreement and whose membership shall
be announced in writing to the Fiduciary by separate instruction, and
(iii) the Fiduciary, Banco Nacional de Mexico, S.A., member of the Banamex
Financial Group, Fiduciary Division.
Any physical person, upon authorization in writing by the Technical Committee,
and who knows the terms and conditions hereof and makes their own all the rights
and obligations arising herefrom, may become a party to this Agreement. At the
time of becoming parties hereto, said persons should be executives or persons
who provide services to the Cemex Group and also sign the Membership Card
attached hereto as Appendix C.
Five.- Purposes of the Trust.
a) The Trustor - Trustee in this act instructs and authorizes the Fiduciary to
take any acts or measures which may be necessary for compliance with the
following Purposes of the Trust:
1. the receipt and disposal of the Contributions and the Purchased CSC's in
the Trust Account and the Securities Account, if any, in accordance with
the written instructions received by the Fiduciary from the Technical
Committee, under the terms and conditions of the provisions in number 5 of
this Section and Section Twelve below;
2. entering into the Option Agreement substantially under the terms and
conditions of the plan attached to this Agreement as Appendix B, but in all
instances in accordance with the instructions and under the terms and
conditions indicated in writing by the Technical Committee, using for such
purpose the instruction form attached to this Agreement as Appendix D (the
"Option Agreement Instruction"), as well as signing amendments to the
Option Agreement indicated in writing by the Technical Committee, using for
such purpose the instruction form that is attached as Appendix E (each one
of said instructions, an "Amendment Instruction");
3. payment of the Premium, under the terms and conditions provided or which
may be provided in the Option Agreement by disposal of the Initial
Contributions deposited in the Trust Account, in accordance with the
instructions stated in writing by the
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4. [sic] Technical Committee, using for such purpose the instruction form
attached to this Agreement as Appendix F (the "Payment Instruction");
5. the exercise of the Purchase Rights in accordance with the provisions
of Section Twelve of this Contract, exclusively in the instances and in
accordance with the instructions received in writing from the Technical
Committee, and only to the degree in which the Fiduciary has received
in the Trust Account the additional Contributions necessary to cover
the costs, commissions and other expenses corresponding, directly or
indirectly, to the exercise of said Purchase Rights and, if necessary,
the Exercise Price, in accordance with the provisions of number 5
below;
6. in the terms and conditions indicated in writing by the Technical
Committee in accordance with the provisions of Section Twelve of this
Agreement, the receipt and custody of the Purchased CSC's in the
Securities Account;
(i) subject to the provisions of subsection (d) of Section
Twelve of this Agreement, the distribution of the Purchased
CSC's to the Trustor - Trustee and to the Member Trustors -
Trustees as applicable, only to the extent that the
Fiduciary has received the additional Contributions
necessary to cover the corresponding Exercise Price,
expenses, commissions and other costs arising from the
receipt and deposit of the Purchased CSC's; and/or
(ii) subject to the provisions in subsection (d) of Section
Twelve of this Agreement, allocate the proceeds from the
sale of the Purchased CSC's through the Stock Broker and the
distribution of the proceeds of said sale to : (1) One,
payment of the corresponding Exercise Price to the legally
corresponding third party in accordance with the Option
Agreement; (2) Two, cover the expenses, commissions and
other costs arising or that may arise from receipt and sale
of the Purchased CSC's; and (3) the remainder, if any, for
deposit in the account of the Trustor - Trustee and/or of
the Member Trustors - Trustees indicated by the Technical
Committee for such purpose in the respective Exercise
Instruction.
6. [sic] entering into the Stock Brokerage Agreement under the terms and
conditions indicated by the Technical Committee in writing, using for
such purpose the instruction form attached to this Agreement as
Appendix G (the "Brokerage Agreement Instruction").
7. the investment, exclusively through the treasury of Banco Nacional de
Mexico, S.A., member of the Banamex Financial Group, of the liquid
assets in Dollars comprising the Trust Assets and which are deposited
in the Trust Account, in readily convertible instruments denominated in
Dollars as indicated by the Technical Committee in the respective
Investment Instruction or Instructions, with the understanding that
(i) in no case shall it be invested, directly or indirectly, in other
trusts or in commercial paper without [a] bank guarantee and (ii)
only amounts not less than US$ 100,000.00 dollars (One Hundred Thousand
Dollars 00/100) or more in immediately available funds, shall be
invested no later than 10:00 a.m. (Mexico City time);
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8. once the expenses arising from this Contract have been deducted,
including without limitation the Trustee's fees and expenses, the
Trust Assets will be returned and/or distributed to the
Trustor-Beneficiary and/or to the Concurrent Trustors-Beneficiaries,
under the terms and ratios indicated by the Technical Committee in
the Notice of Liquidation.
(b) The Trustee shall record in his own accounting as well as under
separate accounting the activities in the Trust Account, the Securities
Account, and keep those records and the Record of Initial Contributions at
the Trustee's registered address as indicated in the appropriate signature
page of this Contract, available to the Technical Committee and to the
Trustors-Beneficiaries.
(c) The Trustor-Beneficiary and/or the Concurrent Trustors-Beneficiaries
specifically accept and acknowledge that the Trustee will only be obligated
to proceed pursuant to the instructions received by the Trustee in writing
from the Technical Committee, in the manner and under the terms expressly
provided for in this Contract.
(d) The Trustee shall open and keep an individualized record of (i) Initial
Contributions and other Contributions from the Trustors-Beneficiaries that
are deposited in the Trust Account and (ii) of the distributions made by
the Trustee from the Trust Account and from the Securities Account to them
under instructions from the Technical Committee.
(e) The Trustee shall maintain the Record of Beneficiaries and a record of
Trustors-Beneficiaries, establishing therein (i) the interest of each one
of the Trustors-Beneficiaries in the Trust Assets, including without
limitation Purchase Rights; (ii) the provisions of the Trust Assets
pertaining to the contributions from each of the Trustors-Beneficiaries,
made by the Trustee under instructions from the Technical Committee, either
for payment of the Premium, Price for Fiscal Year or any other reason; and
(iii) the number of CPOs acquired which, if applicable, may pertain to each
of the Trustors-Beneficiaries.
Six.- Investment of Assets. The Trustee shall invest the Trust Assets
pursuant to the express and written instructions received from the
Technical Committee by the Trustee.
When the Trustee does not receive instructions for handling the investment
from the Technical Committee at least 24-hours ahead of time, the Trustee
shall invest the Trust Assets pursuant to the following: (i) maximum term
of investment shall be 7 days; (ii) investments will be made in the
currency that the liquid resources are designated in; (iii) in all cases
where the Trustee performs investment transactions, the actual treasury of
the Banco Nacional de Mexico, S.A., part of the Grupo Financiero Banamex,
will act as the other party, and (iv) the Trustee shall carry out the
investments in the securities and at the rates available in the market at
the time of the investment, pursuant to applicable terms of time and
amounts and pursuant to provisions in Section five, paragraph a), number 7
of this Contract, either in local currency or in Dollars in the order
established below, with the understanding that provisions in this paragraph
shall be deemed by the parties as a permanent instruction during the time
the Trustee does not receive written instructions from the Technical
Committee for purposes of investing the trust assets:
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Pesos (Local Currency)
(1) Liabilities under Banco Nacional de Mexico, S.A., part of the Grupo
Financiero Banamex;
(2) Instruments of banking debt, either directly or as repurchase
agreement;
(3) Securities under the Federal Government, either directly or as
repurchase agreement.
U.S. Dollars
(1) Liabilities under Banamex, Citigroup, Inc. or any of their
subsidiaries, stated in US Dollars.
Seven.- Life of the Contract. This Contract shall be deemed as expired when all
expenses arising therefrom have been covered, including without limitation the
Trustee's fees and expenses, for any of the following reasons: (i) for complying
with the Purposes of the Trust; (ii) return and/or distribution of the Trust
Assets to the Trustors-Beneficiaries, pursuant to instructions submitted by the
Technical Committee to the Trustee in the notification format terms attached to
this Contract as Appendix H (the "Notice of Liquidation"), (iii) the Trustee's
resignation under the terms provided in Section twenty-three of this Contract;
(iv) express and written revocation on the part of the Trustors-Beneficiaries;
or (v) for the reasons provided in Article 392 of the General Law on Negotiable
Instruments and Credit Transactions; but in any case, in term not to exceed
thirty (30) years, starting from the Date of Closing.
Eight.- Beneficiaries in the event of Death. Each of the Trustors-Beneficiaries
shall designate the person or persons identified in Appendix I of this Contract
(the "Record of Beneficiaries"), as his/her beneficiaries in the event of death.
The Technical Committee will be responsible for updating the Record of
Beneficiaries pursuant to the instructions received in writing from the
Trustors-Beneficiaries. The Trustors-Beneficiaries expressly acknowledge that in
all matters pertaining to the Record of Beneficiaries the Trustee's
responsibility is in any case limited to complying with instructions received in
writing from the Technical Committee.
Nine.- Technical Committee. (a) Pursuant to provisions in paragraph three,
article 80, Lending Institutions Act, the Trustor-Beneficiary hereby sits as a
Technical Committee (the "Technical Committee") consisting of three full members
and six alternate members, and any of the alternates may equally serve as
substitute for any of the full members, pursuant to the following:
1. The Technical Committee will meet as often as necessary and no formal meeting
will be required; for this purpose a written communication shall suffice, signed
by three of the members, one of which must be a full member, clearly stating the
agreements and decisions made for purposes of their being deemed valid;
2. A hand-signed copy of said written communication, duly signed by the
appropriate parties, shall be delivered to the Trustee, with specific
instructions as may be pertinent;
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3. the Trustee and those advisors deemed appropriate by the Technical Committee
may attend the actual meetings of the Technical Committee, with the awareness
that they will have a voice but no vote;
4. in the event of resignation, disability, removal, death or any other
situation resulting in the definitive absence of any of the Technical
Committee's full or alternate members, the Technical Committee itself shall
designate at the appropriate time the successor or successors required for
purposes of maintaining at all times a minimum of three full and six alternate
members. The Chairman of the Technical Committee shall be responsible for
notifying the Trustee in writing as to the name, personal information and
signature samples of all its members; and
5. the position of Technical Committee member will be honorary.
(b) The Technical Committee shall have the following powers:
1. can open and maintain an individualized record of (i) the Initial
Contributions and other Contributions from the Trustors-Beneficiaries; and (ii)
of the distributions made by the Trustee from the Trust Account and from the
Securities Account to the Trustors-Beneficiaries under instructions from the
Technical Committee;
2. can maintain a Record of Beneficiaries and a record of
Trustors-Beneficiaries, establishing therein (i) the interest of each one of the
Trustors-Beneficiaries in the Trust Assets, including without limitation
Purchase Rights; (ii) the provisions of the Trust Assets pertaining to the
contributions from each of the Trustors-Beneficiaries, made by the Trustee under
instructions from the Technical Committee, either for payment of the Premium,
Price for Fiscal Year or any other reason; and (iii) the number of CPOs acquired
which, if applicable, may pertain to each of the Trustors-Beneficiaries;
3. shall formally assist the Trustee as coadjutor in preparing, updating and
confirming the records and other documents referred to in paragraphs (b), (d)
and (e) in Section five of this Contract;
4. shall keep a file containing originals of all resolutions, written
communications and instructions from the Technical Committee;
5. shall provide instructions in writing to the Trustee, using the instruction
format attached to this contract as Appendix J (the "Investment Instruction"),
which shall be signed by three members of the Technical Committee, one of which
shall be a full member, concerning the manner and proportion in which [the
Trustee] shall invest the Contributions deposited into the Trust Account;
6. shall provide instructions in writing to the Trustee, in order for the
Trustee to proceed, totally or partially, to exercise the Purchase Rights, using
for said purpose the instruction format attached to this contract as Appendix K
(each of said instructions being an "Exercise Instruction"), which in any case
shall be signed by three members of the Technical Committee, one of which shall
be a full member;
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7. shall notify the Trustee at the appropriate time concerning all requirements
or requests from the Trustee in connection with this Contract;
8. shall request from the Trustee on a quarterly basis information and
documentation concerning the status of the Trust Assets;
9. shall submit to the Trustee (i) the Notice of Liquidation pursuant to
provisions in the Section Seven of this Contract; (ii) the Instruction for
Entering into Option Contract; (iii) the Instruction for Entering into
Intermediation Contract; and (iv) the Instruction for Payment, and if
appropriate can submit to the Trustee Instruction for Modification;
10. in all cases when a Trustor-Beneficiary submits to the Technical Committee a
Notice of Exercise in which an Instruction for Delivery of CPOs is included, the
Technical Committee shall notify the Trustors-Beneficiaries who have instructed
the Technical Committee to deliver the CPOs, as to the amount of additional
Contributions that will need to be deposited into the Trust Account in order for
the Trustee to cover, pursuant to provisions in section (a) number 1 of Section
Twelve in this Contract, all expenses, commissions and other costs arising or
that may arise from receiving and delivering the CPOs Acquired;
11. pursuant to provisions in paragraph (d) below, the Technical Committee will,
on behalf and in representation of the Trustors-Beneficiaries, be able to
precisely in writing enter into with the Trustee, all agreements modifying this
Contract as the Technical Committee may deem appropriate, always safekeeping the
interests and benefits of the Trustors-Beneficiaries;
12. shall exercise in general all powers that may be necessary or appropriate
for purposes of attaining the Goals of the Trust.
(c) The following persons are appointed as full and as alternate members of the
Technical Committee:
Full Position
Engineer Xxxxxxx Xxxxxxx Xxxxxxxx Chairman
Eng. Xxxx Xxxxxxxx Xxxxxxx Secretary
Eng. Xxxxxxx X. Xxxxxx Xxxxxxx Member of the Board
Alternates
Eng. Xxxxxxxx X. Xxxxxxx Xxxxxxxxx
X.X. Xxxxxx Xxxxxxx Xxxxxxx
Lic. Xxxx Xxxxxxxx Xxxxxxx Xxxxxxxx
Lic. Xxxxxxx Xxxxxxx Xxxxxx Xxxxxx
Eng. Xxxxxx Xxxxxxx Xxxxxxxxx
Lic. Xxxx Xxxxxx Del Xxxxx Xxxxxx
The personal information, signature samples of each of the members of the
Technical Committee, full as well as alternate, as well as the designated
address for hearing and receiving all types of notices and service of notice
related to this Contract, are contained in the document that, duly signed by the
Chairman
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of the Technical Committee, are attached to this Contract as Appendix L.
(d) The Trustor-Beneficiary in this proceeding grants a Special Power of
Attorney in favor of the Technical Committee, so that in the name and on behalf
of the Trustors-Beneficiaries it may enter into with the Trustee, precisely in
writing, all agreements modifying this Contract that it deems appropriate,
always safekeeping the interests and benefits of the Trustors-Beneficiaries. The
parties agree that said Special Power of Attorney shall not earn any fee
whatsoever in favor of the Technical Committee or any of its members; therefore,
the Technical Committee and each of its members expressly and irrevocably waive
any fee that may arise from this entrustment.
Ten.- Fiscal Obligations. All taxes, fees, and other obligations of a fiscal
nature that as a consequence of the life of this contract as well as the
proceedings in execution thereof, are set forth or imposed by the appropriate
fiscal provisions, shall be strictly the responsibility of the
Trustors-Beneficiaries, as may be pertinent to comply with pursuant to legal
provisions in effect.
The Trustee shall not be at all responsible for non-compliance of those
obligations under the charge of the Trustors-Beneficiaries. In terms of the
fiscal obligations the Trustee must comply with as a consequence of carrying out
the steps pertaining to the goals of the trust or those executed due to
instructions from the actual Trustors-Beneficiaries or from the Technical
Committee if applicable, the Trustee shall comply with said fiscal obligations
with charge to the resources subject of the trust, and in the case of
insufficient resources, the Trustors-Beneficiaries and the Technical Committee
if applicable are required to increase the trust with resources sufficient to
bring about compliance with the fiscal obligations indicated in this section.
The Trustors-Beneficiaries and the Technical Committee if applicable, shall
provide to the Trustee upon request all documents necessary or sufficient for
showing that the fiscal obligations under their charge have been properly and
fully complied with.
Eleven.- Collection of Revenues and Form of Application. The Trustee shall be
authorized to collect the interests and other products of the investments it
makes pursuant to the Investment Instructions, and to deduct the amounts
necessary for payment of duly documented and reasonable taxes and expenses that
if applicable may result from said investments and from handling the Trust
Assets.
Twelve.- Exercise of Purchase Rights; Distribution of the Trust Assets. For
purposes of exercising the Purchase Rights provided under the Option Contract,
the parties hereto submit to the following procedure:
(a) at least one Working Day prior to each Exercise Date, the Technical
Committee shall receive from the Trustors-Beneficiaries who wish to exercise the
proportional share of Purchase Rights as may pertain to them, an individual
irrevocable notice per each Trustor-Beneficiary, pursuant to the notification
format attached to this Contract as Appendix M (each of said notices being a
"Notice of Exercise"). Each
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Notice of Exercise shall establish, (i) an irrevocable instruction to the
Technical Committee for it to submit the Exercise Instruction or Instructions
that may be necessary for duly exercising the Purchase Rights; (ii) the number
of CPOs the Trustee will need to acquire in exercising the Purchase Rights;
(iii) an irrevocable instruction to the Technical Committee so that the
Technical Committee in turn instructs the Trustee, by means of the appropriate
Exercise Instruction, to carry out the acts and transactions that may be
necessary for the acceptance, by depositing into the Securities Account, the
number of Acquired CPOs that may be appropriate; and (iv) (A) an Instruction for
Delivery of CPOs, or (B) an Instruction to Sell CPOs.
1. Subject to provisions in paragraph (d) of this Section, whenever a Notice of
Exercise contains an Instruction for Delivery of CPOs, the appropriate
Trustor-Beneficiary shall (i) provide irrevocable instructions to the Technical
Committee so that the Technical Committee in turn instructs the Trustee, by
means of the appropriate Exercise Instruction, to carry out the acts and
transactions that may be necessary for the acceptance by the Trustee of the
Acquired CPOs; (ii) deposit into the Trust Account the Contributions necessary
to cover the Exercise Price pertaining to the Acquired CPOs, the expenses,
commissions and other costs arising or that may arise from the purchase and
deposit of said Acquired CPOs; and (iii) indicate the information pertaining to
the account where the Trustee is to deposit said Acquired CPOs.
2. Subject to provisions in paragraph (d) of this Section, whenever a Notice of
Exercise contains an Instruction to Sell CPOs, the appropriate
Trustor-Beneficiary shall provide irrevocable instructions to the Technical
Committee so that the Technical Committee in turn instructs the Trustee, by
means of the appropriate Exercise Instruction, for it to (a) carry out the acts
and transactions that may be necessary for the acceptance by the Trustee of the
Acquired CPOs resulting from said redemption; and (b) sell the Acquired CPOs as
may be appropriate, and the product of the sale of said Acquired CPOs be applied
in the following order (i) first, for payment to the third party who may legally
be entitled pursuant to the Option Contract; (ii) second, to cover expenses,
commissions and other costs arising or that may arise from the purchase and the
deposit of said Acquired CPOs, as well as from the sale of the appropriate
Acquired CPOs; and (iii) third, the remainder, if any, shall be deposited, in
pesos, Local Currency, into the account of the appropriate Trustor-Beneficiary
as indicated by the Technical Committee for said purpose in the Instruction to
Sell CPOs contained in the appropriate Exercise Instruction.
(b) In the case provided under paragraph (a) number 1 of this Section, the
Trustors-Beneficiaries shall deposit into the Trust Account, no later than the
Working Day immediately preceding each Exercise Date, the Dollar amounts
immediately available that may be necessary for purposes of the Trustee
exercising the appropriate Purchase Rights pursuant to each Exercise
Instruction;
(b) [sic] the Technical Committee shall submit to the Trustee an Exercise
Instruction, no later than the Working Day immediately preceding each Exercise
Date, wherein (i) the Trustee is irrevocably instructed to exercise the
appropriate Purchase Rights before the third party with whom the Option Contract
has been entered; (ii) the number of CPOs to be acquired by the Trustee in
exercising the Purchase Rights is specified; (iii) it receives the appropriate
Acquired CPOs into the Trustee Account; (iv) the Trustee is
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irrevocably instructed to carry out the acts and transactions that may be
necessary on the part of the Trustee for receiving the CPOs; and (v) to carry
out the acts as instructed by the Technical Committee in the appropriate
Exercise Instruction, pursuant to each Instruction for Delivery of CPOs or
Instruction to Sell CPOs, as may be appropriate.
(d) under the terms indicated by the Technical Committee in each Exercise
Instruction, the Trustee shall exercise the Purchase Rights, pursuant to
provisions in the Option Contract; with the understanding, however, that (i) in
cases when the Trustee needs to perform a transaction of purchasing Dollars by
means of Local Currency pesos, pursuant to an Exercise Instruction, the Trustee
shall quote prices and perform each of said transactions exclusively through
Banco Nacional de Mexico, S.A.; and (ii) the Trustee shall transfer the Acquired
CPOs, or the result of their sale, as appropriate, in to the account or accounts
indicated in each Exercise Instruction, within the two Working Days following
the date when the Trustee receives the Acquired CPOs or the result of the sale
thereof, as the case may be;
(e) there is express agreement that the Trustee is released from any and all
responsibility arising or that may arise from exercising the Purchase Rights
pursuant to provisions herein. Each of the Trustors-Beneficiaries must severally
and without limits hold harmless and indemnify the Trustee from any arising or
that may arise from acts or omissions by the Trustee in connection with
complying with the instructions issued by the Technical Committee; however, the
Trustee must indemnify the Trustors-Beneficiaries for acts of bad faith or
beyond the powers pertaining to the Trustee in the execution of the Trust, by
virtue of the essential act, the law or the instructions issued by the Technical
Committee, carried out in a manner harmful to the Trustors-Beneficiaries.
Thirteen.- Authorizations to the Trustee. The Trustors-Beneficiaries authorize
and irrevocably instruct the Trustee to proceed under the terms provided in this
Contract, including without limitation, pursuant to provisions in the Section
Twelve, pursuant to prior and written instructions from the Technical Committee.
Fourteen.- Defense of Trust Assets. (a) The Trustee shall always act as a good
parent, and shall not abandon, leave unprotected or allow or cause any demerit
to the Trust Assets. The Trustors-Beneficiaries shall be responsible for prompt
and timely payment of any taxes, assessments, impositions and charges,
determined or charged by any governmental entity, directed to or arising from
this Contract, from the Option Contract, from the Exercise of Purchase Rights or
from the Trust Assets. The Trustors-Beneficiaries shall in addition provide the
Trustee with reliable evidence that each and every one of said taxes,
assessments, impositions and charges have been covered in due time and proper
form and in their entirety.
(c) Should the defense of Trust Assets be required, including without limitation
defense of the Contributions, the Option Contract, the Purchase Rights, the
Acquired CPOs, the Trustee will only be obligated to grant the power or powers
in favor of the person or persons designated in writing by the Technical
Committee (the "Representatives") without this creating in the Trustee any
responsibility for
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the steps taken by the Representatives, a provision to be transcribed into the
document that sets forth the power or powers granted, and provided that the
Representatives accept that the fees and expenses arising from their
transactions be covered directly by the Trustors-Beneficiaries, without the
Trustee being responsible for any of said items.
Fifteen.- Expenses, Costs, Taxes, Commissions and Fees. All expenses,
commissions, taxes and fees, reasonably and duly documented, arising from the
preparation, entering into, noticing and if pertinent registering of this
Contract, as well as in connection with any modification thereof, or due to any
act or document that according to this Contract needs to be prepared, signed or
noticed, including fees of legal counselors for the Trustee, as well as all
reasonable and duly documented expenses incurred by the Trustee in the process
of complying with his obligations and in exercising his rights pursuant to this
Contract will be exclusively under the Trustors-Beneficiaries account.
For his involvement in this Contract, the Trustors-Beneficiaries will pay the
Trustee the following commissions:
1. A one-time payment for accepting the charge of Trustee under this Contract,
in the amount of US$ 5,000 Dollars (Five thousand dollars 00/100), payable on
the date of signing this contract.
2. For administering the Trust Assets, the amount of US$18,000.00 Dollars
(Eighteen thousand dollars 00/100) annually, payable in advance. The first of
such payments shall be made on the date of signing this contract, and subsequent
payments shall be made within the first 5 (five) Working Days of May of each
year during the life of this Contract.
3. The amount of US$100.00 Dollars (One hundred dollars 00/100) annually, for
each of the Trustors-Beneficiaries, payable in advance. The first of such
payments shall be made on the Closing Date, and subsequent payments shall be
made within the first 5 (five) Working Days of May of each year during the life
of this Contract.
Each and every one of the commissions previously described will give rise to the
Value Added Tax, and must be paid in immediately available funds, by means of
electronic transfer to the Trust Account, under the terms provided in the
document which, duly signed, has been delivered to the Trustee on the Closing
Date.
Sixteen.- Modifications to the Contract. This Trust contract may be modified by
the Technical Committee, in exercising the Special Mandate that was granted in
its favor under the terms of Section Nine, paragraph (d) of this contract, being
responsible for its performance in safeguarding the interests and benefits of
the Trustors-Beneficiaries.
Seventeen.- Rendering of Accounts. The Trustee will prepare and send monthly to
the Technical Committee, to the address indicated in Section Eighteen of this
contract, an account statement showing movements that have occurred in this
Trust during the pertinent period.
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The Technical Committee will have a period of 15 (fifteen) calendar days counted
from the date of receiving the aforementioned account statement, in order to add
clarifications thereto, if pertinent. After said period has elapsed without any
objection on the part of the Technical Committee, each of the movements
reflected in said Account Statement shall be deemed accepted by said Committee.
Eighteen.- Addresses. All communications the parties must provide each other
under the terms of this contract, including changes of address, shall be made
specifically in writing and submitted (i) personally with acknowledgment of
receipt; (ii) by special messenger service with acknowledgment of receipt; or
(iii) by fax, followed by special messenger service or personal notification,
with acknowledgment of receipt. All notices and notifications shall be submitted
to the following conventional addresses and fax numbers:
Trustor-Beneficiary: Ave. Constitucion Xx. 000 Xxx.
00000 Xxxxxxxxx, Xxxxx Xxxx, Xxxxxx
Fax Number: 8328.7163
Technical Committee: Ave. Constitucion No. 444 Pte.
64000 Monterrey, Nuevo Xxxx, Mexico
Attn.: Ing. Xxxxxxxx Xxxxxxx Xxxxxxxxx
Fax Number: 8328.7162
Trustee: Xxxxxxx del Xxxxx No. 350 Ote.
Col. Del Xxxxx X.X. 66220
San Xxxxx Xxxxx Xxxxxx, Nuevo Xxxx
Fax Number: 1226.2097
All notices sent pursuant to this contract, will be deemed properly delivered at
the addresses listed. Any change of address must be notified in writing between
the parties.
Nineteen.- Assignment. The rights and duties arising from this Contract cannot
be assigned or transferred to any third parties. Only in the event of death of
any of the Trustors-Beneficiaries the exercise of the rights and compliance with
the appropriate obligations will be acknowledged in favor of the Beneficiaries
designated pursuant to Section Eight.
Twenty. - Appendices and Titles. All documents enclosed herewith or made
reference to herein, are an integral part of this Contract as if literally
inserted. The titles and headings for the Sections in this Contract are used
only for reference and should not affect the interpretation of this Contract.
Twenty-One.- Applicable Law and Courts of Competent Jurisdiction. For all
matters pertaining to the interpretation and compliance of this Contract, the
parties expressly and irrevocably submit to the applicable laws of Mexico, and
to the courts of competent jurisdiction of Monterrey, Nuevo Xxxx, expressly and
irrevocably waiving any other venue that may pertain by reason of their
respective domiciles, present or future, or for any other reason.
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Clause Twenty-Two - Fax Transmittals. The Trustee shall have the power to carry
out acts or activities as instructed by the Technical Committee, through
communications transmitted by fax, provided the authenticity of such transmittal
is verified. Notwithstanding the aforementioned, the parties hereby acknowledge
that the Trustee shall have certain internal policies regarding the use of
manual procedures for receiving and processing any instructions which are
transmitted by telefax or other manual methods. Consequently, the person
designated by the Technical Committee for such effects shall sign the document
where such policies are found simultaneously together with the Trustee.
Clause Twenty-Three - Terms and Conditions of the Trusteeship Service. In order
to induce the Trustee to execute this Contract, the Trustors-Beneficiaries
hereby agree with the Trustee upon the following:
(a) the Trustee shall no be a part of the Technical Committee, and shall
only be obligated to act in accordance with the instructions that it
receives in writing from the Technical Committee, and shall not be
obliged to determine the authenticity of the content or the signature
of any of such instructions. The Trustors-Beneficiaries acknowledge
that the Trustee has certain internal policies regarding the use of
manual procedures for receiving and processing any instructions
transmitted by fax or other manual means. Consequently, the
Trustors-Beneficiaries and the owner members and the substitutes of
the Technical Committee shall submit and be subject to, and be bound
to the terms of the document in which such policies are contained,
which they have executed with the Trustee before the signing of this
Contract;
(b) the Trustee shall not be obligated to exert a higher degree of care in
the preservation of the Trustee Estate that such degree of care that
it should apply to the assets belonging to its own property. The
Trustee shall not be obliged to invest the amounts that are deposited
in the Trusteeship Account, except for the provisions foreseen in
Clause Six of this Contract;
(c) the Trustee shall be expressly and irrevocably authorized, through
prior notification to the Technical Committee, to use the amounts
deposited in the Trusteeship Account, for the payment of any costs,
fees, commission and other expenses that may derive directly or
indirectly from this Contract, subject to the terms and conditions
established in the clause of this Contract;
(d) this Contract expressly establishes all the obligations pertaining to
the Trustee. The Trustee shall not assume any implicit obligation
under this Contract, nor any obligations that may directly or
indirectly derive from any agreement of the Trustors-Beneficiaries
among themselves or with any other third party;
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(e) the Trustors-Beneficiaries shall be jointly and severally liable to
indemnify and to hold harmless the Trustee, its subsidiaries,
affiliates and related companies and their corresponding consultants,
officers, employees, mandatory parties and agents, from any loss,
liability, claim, action, damage and expense, including any lawyer
fees and expenses, which arise or may derive from this Contract;
however, the Trustee shall be bound to indemnify the
Trustors-Beneficiaries of any acts of bad faith or in excess of the
power that may correspond for the execution of the Trusteeship, by
virtue of the constitutive act, by law or by the instructions given by
the Technical Committee, by which it may cause and damage to the
Trustors-Beneficiaries .
(f) The Trustors-Beneficiaries shall be severally and jointly be liable,
unlimitedly, for any tax, right, contribution, or fiscal
responsibility of any nature that may derive or that could derive from
or in relation to this Contract or the Trusteeship Estate, and shall
severally and jointly be bound, unlimitedly, to indemnify and hold the
Trustee Beneficiary harmless for any amounts whose payment is obliged
to make by virtue of such taxes. The obligations of the
Trustors-Beneficiaries foreseen in this paragraph and in the previous
paragraph shall continue to be in full force even after the date of
termination of this Contract or after the resignation of the Trustee;
but, in any case, shall be for a maximum period of three (3) years
counted from the date of termination of this Contract;
(g) That the Trustee made know unequivocally to the parties that intervene
in this Contract, the scope and legal consequences of the provisions
set forth in the first three paragraphs of item (b) of section XIX of
article 106 (one hundred and six) of the Law of Credit Institutions,
which textually state:
"Art. 106. - the Credit institutions shall be forbidden to:
XIX. - in the performance of the operations that are referred to in
section XV of article 46 of this law:
(b) To respond to the trustors, mandatory or principal parties, for
any default of the debtors, for the credits granted, or of the
issuers, for the securities that may be purchased, except that the
aforementioned is their fault, according to the provisions set forth
at the end of article 356 of the General Law of Titles and Credit
Transactions, or guarantee the return for the funds whose investment
has been commissioned.
If at the end of the trusteeship, mandate or commission constituted
for the granting of such credits, if such had not been liquidated by
the debtors, the institution shall transfer these to the trustors or
trusteeship beneficiaries, depending on the specific case, and shall
abstain from covering their amount.
Any other agreement, contrary to the provisions set forth in the two
previous paragraphs, shall not have any legal effect.
In trusteeship, mandate or commission contracts, a visible statement
by the Trustee shall be inserted in the prior paragraphs to this
section, to indicate that it made the content unequivocally known to
the persons from whom it has received financial resources for
investment purposes."
By virtue of the addition to the General Law of Titles and Credit
Transactions published in the Official Gazette dated on May 23, 2000,
and in consideration that item b, in fraction XIX of article 106 to
which this clause refers to, has not been revised accordingly to
reflect such revisions, for all legal effects that may
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arise, the reference to articles 356 of the General Law of Titles and
Credit Transactions shall be understood as a reference to article 351
of such law.
(h) The Trustee shall not be responsible in any event for the validity,
value or enforceability of the Options Contract, of the Rights of
Purchase, of the Purchased CPOs or of any other instrument or right
that may directly or indirectly be related to this Contract;
(i) The Trustors-Trustee Beneficiaries agree and acknowledge that the
Trustee shall not be responsible (i) in the event that the Trusteeship
Estate or any part of such is expropriated, nationalized or seized;
(ii) for any non-compliance of its obligations under this Contract for
causes or circumstances beyond its control; or (iii) for the legal
capacity of the other parties to this Contract to purchase or maintain
the property of the Trusteeship Estate;
(j) The Trustee shall not render, nor shall it be responsible for
rendering, any consultancy to the Trustors-Trustee Beneficiaries with
regards to the convenience or inconvenience of investing, selling,
maintaining or taking or abstaining from taking any action or decision
with regards to the Options Contract, the Rights of Purchase or any
other instrument or right that is directly or indirectly related with
this Contract;
(k) The Trustee (and any other trustee that may substitute it) may resign
at any time to their position as Trustee by (i) providing a written
notification to the Technical Committee, and (ii) by handing over the
Trusteeship Estate in the terms that the Technical Committee may
indicate in writing. In the event that the Technical Committee does
not submit any written instructions to the Trustee for such effect
within 60 (sixty) calendar days following the date of resignation of
the aforementioned Trustee, the Trustee shall consign the Trusteeship
Estate before any competent authority without any liability
whatsoever, and the Trustee shall be released from each and every one
of its responsibilities deriving from this Contract.
(l) In the event of any dispute between the Trustors-Beneficiaries and/or
the Technical Committee that gives rise to or might give rise to
claims or lawsuits in relation to this Contract, the Trustee shall
have power to (i) hold the Assets of the Trust until receiving a final
ruling from a court with jurisdiction in the matter, ordering
distribution of the Assets of the Trust; or a written agreement by all
of the Trustors-Beneficiaries instructing the Trustee to distribute
the Assets of the Trust; or else (ii) remanding the Assets of the
Trust before any authority with jurisdiction in the matter, with no
legal responsibility. In any case, the Trustee shall be freed of each
and every one of his obligations deriving from this Contract;
(m) The Trustors-Beneficiaries acknowledge that the Trustee forms part of
Grupo Financiero Banamex, an integral part of the group recognized
internationally as "Citicorp" and therefore is subject to the internal
policies and regulations of Citicorp and its subsidiary Citibank,
N.A., where the management and performance of trust department
services ("internal policies"), should any instruction from either of
the parties or any other act to be performed by the Trustee pursuant
to this Contract be contrary to the Internal
(n) in case of any dispute between the Trustors-Beneficiaries and/or the
Technical Committee that gives rise to or might give rise to claims or
lawsuits in relation to this Contract, the Trustee shall have power to
(i) hold the Assets of the Trust until receiving a final ruling from a
court with jurisdiction in the matter, ordering distribution of the
Assets of the Trust; or a written agreement by all of the
Trustors-Beneficiaries instructing the Trustee to distribute the
Assets of the Trust; or else (ii) remanding the Assets of the Trust
before any authority with jurisdiction in the matter, with no legal
responsibility. In any case, the Trustee shall be freed of each and
every one of his obligations deriving from this Contract;
(o) The Trustors-Beneficiaries acknowledge that the Trustee forms part of
Grupo Financiero Banamex, an integral part of the group recognized
internationally as "Citicorp" and therefore is subject to the internal
policies and regulations of Citicorp and its subsidiary Citibank,
N.A., where the management and performance of trust department
services ("internal policies"), should any instruction from either of
the parties or any other act to be performed by the Trustee pursuant
to this Contract be contrary to the Internal
Policies that are in force at that time, the Trustee shall immediately
notify such circumstance to the parties involved in order for such to
agree upon the way forward, in such manner that would prevent the
Trustee to incur in a violation of the Internal Policies.
(p) The Trustors-Trustee Beneficiaries and the Technical Committee members
are bound not to utilize in any manner whatsoever the name or logo of
the Trustee or of any of its subsidiaries or related companies,
without the prior consent or authorization in writing from the
Trustee.
IN WITNESS WHEREOF the aforementioned, and having read this Contract and
informed of its content and legal scope, the parties involved hereby subscribe
below in accordance to the provisions set forth in this Contract on February 27,
2003.
Trustor-Trustee Beneficiary
[signature]
Ing. Xxxxxxx Xxxxxxx Xxxxxxxx
Trustee:
Banco Nacional de Mexico, S.A.
Grupo Financiero Banamex
Division Fiduciaria
[signature]
Lic. Xxxxx de los Angeles Xxxxxxxxxx Xxxxx
Trustee Delegate
[signature]
Lic. Xxxx Xxxxx Xxxx Xxxxxxx
Special Power of Attorney
(q)
20
Banamex Appendix A
GENERAL INFORMATION
NAME: ING. XXXXXXX XXXXXXX XXXXXXXX
R.F.C.: TEMR-560930-AYO
IFE FOLIO No.: 35233891
NATIONALITY: MEXICAN
CIVIL STATUS: MARRIED
OCCUPATION: PROFESSIONAL (ENGINEER)
FROM: MONTERREY, NUEVO XXXX
ADDRESS: AVE. CONSTITUCION No. 444 PTE.
MONTERREY, NUEVO XXXX
X.X. 64000
Banamex Appendix B
Options Contract
Trust No. 111174-2
CLOSED INVESTMENT TRUST AGREEMENT BY AND BETWEEN THE PARTY OF THE FIRST PART,
XXXXXXX XXXXXXX XXXXXXXX, IN HIS CAPACITY AS TRUSTOR-TRUSTEE, AND THE PARTY OF
THE SECOND PART, BANCO NACIONAL DE MEXICO, S.A., A MEMBER OF THE BANAMEX
FINANCIAL GROUP, TRUST DIVISION, REPRESENTED AT THIS EVENT BY LICENCIADAS XXXXX
DE LOS ANGELES XXXXXXXXXX XXXXX AND XXXX XXXXX XXXX XXXXXXX AS TRUSTEE,
ACCORDING TO THE FOLLOWING REPRESENTATIONS AND CLAUSES:
REPRESENTATIONS:
1. The Trustor-Trustee represents individually and directly, under oath, that:
(a) he is an individual (i) whose personal details are indicated in the
document added to this Agreement as Appendix "A"; (ii) with full legal
capacity to enter into contracts and be bound by the terms of this
Agreement; (iii) with full power to place in this trust the property that
is the subject hereof, and (iv) that he is married according to the
matrimonial contract indicated on the respective signature page of this
Agreement, and, hence, if necessary, his spouse grants her consent for the
execution of this Agreement according to the terms set forth in the
signature pages hereof;
(b) he wishes to execute this Agreement and place in trust the Initial
Contribution, as well as all other Contributions that are necessary in
order to fulfill the Purposes of the Trust set forth in Clause Four of this
Agreement;
(c) he states that the property and rights that are placed in this Trust for
the purposes stipulated in this Agreement are of lawful origin and, in
addition, he agrees to furnish to the Trustee any information required of
him by the latter in order to fulfill the stipulations of Article 115 of
the Credit Institutions Act and other regulatory provisions and internal
policies of the Banco Nacional de Mexico, a member of the Banamex Financial
Group;
(d) he wishes to designate Banco Nacional de Mexico, Banamex Financial Group,
as Trustee, to instruct and authorize it to act in accordance with
instructions that it receives in writing from the Technical Committee; and
(e) he is aware of and agrees that (i) this Agreement shall have no legal
effect until the Trustee, the Trustor-Trustee, as well as the
Trustors-Trustees that adhere to this Agreement and, if necessary, their
respective spouses, have granted their consent through a handwritten
signature on the signature pages of this Agreement and (ii) only
Trustors-Trustees authorized by the Technical Committee to adhere to this
Agreement shall be parties to this Agreement, which Trustors-Trustees, at
the time of their adherence, must be executives or persons who provide a
service to the Cemex Group, and under no circumstance may third parties
join.
II. The Trustee represents, under oath, that:
(a) it is a public limited company duly established and validly existing under
the laws of Mexico, and it is authorized to establish itself and do
business as a multiple banking institution;
(b) it accepts its designation as Trustee and agrees to take the necessary
steps to fulfill all the Purposes of the Trust in accordance with the
instructions that it receives from the Technical Committee, and
(c) its representatives have all the powers and authorizations necessary to
execute this Agreement in representation of the Trustee and such powers and
authorizations have not been revoked or limited in any way.
Based on the above representations, the parties to this Agreement agree to
execute and be bound by the stipulations of the following:
CLAUSES:
One.- Definitions. The following terms used with initial uppercase in this
Agreement shall have the meaning indicated below:
"Contributions" shall mean the Initial Contributions and other amounts
of money in Dollars that the Trustor and the Affiliated Trustors place
in trust, through a deposit to the Trust Account, in accordance with the
terms stipulated in Clause Two and Clause Ten of this Agreement.
"Initial Contributions" shall mean the amounts of money in Dollars that
both the Trustor, as well as the Affiliated Trustors place in trust on
the Closing Date through a deposit to the Trust Account according to the
terms stipulated in Clause Two of this Agreement.
"Agreement" shall mean this Closed Investment Trust Agreement.
"CPO's" shall mean (i) the Ordinary Participation Certificates
(Certificados de Participacion Ordinaria) of Cemex, S.A. de C.V. that
are acquired in accordance with the instructions on this matter
indicated by the Technical Committee; or (ii) any other securities
issued in lieu of, or exchanged for, such Ordinary Participation
Certificates and that cover or are shares representing the capital stock
of Cemex, S.A. de C.V.
"Acquired CPO's" shall have the meaning set forth in paragraph (a),
paragraph 5, paragraph (i) of Clause Five of this Agreement.
"Technical Committee" shall mean the Technical Committee of this Trust,
organized according to the terms of Clause Nine of this Agreement.
"Brokerage Agreement" shall mean the brokerage agreement executed
between the Trustee and the Brokerage in accordance with the
2
Instruction for Execution of the Brokerage Agreement according to the
terms of subsection (a), paragraph 6 of Clause Five of this Agreement.
"Option Agreement" shall mean the CPO purchase option agreement that, as
a draft, is added to this Agreement as Appendix " B", under which the
Trustee shall have the right to acquire the CPO's of any third party
where instructions are given to execute the Option Agreement according
to the terms indicated by the Technical Committee.
"Trust Account" shall mean the account at CITIBANK NEW YORK to which the
Trustor and the Affiliated Trustors shall make their deposits in U.S.
dollars according to the following details: ABA No. 000000000 or Swift
Code XXXXXX00, which is maintained, as the Trustee's agent, by Citibank,
N.A., 000 Xxxx Xxxxxx, 21st Floor, New York, N.Y. 10143, Beneficiary
Bank: XXXXXXXX SWIFT CODE) BANCO NACIONAL DE MEXICO, S.A. (BANAMEX);
Beneficiary customer: Account 0525 0000000, TRUST DIVISION, DETAILS OF
PAYMENT: FFC*Agreement # 111174-2.
"Securities Account" shall mean account No. 6908 (six nine zero eight)
at Indeval kept by the Trustee on the Closing Date.
"Purchase Rights" shall mean the right to acquire the CPO's according to
the terms set forth in the Option Agreement.
"Working Day" shall mean any day (excluding Saturdays and Sundays) on
which the credit institutions in Mexico City, Federal District, and in
Xxx Xxxx Xxxx, Xxx Xxxx, Xxxxxx Xxxxxx of America, are open to the
public, and are not authorized or required to close by Law, regulation,
decree or any other provision issued by an appropriate authority.
"Dollars" shall mean the lawful currency of the United States of
America.
"Closing Date" shall mean the date on which the Trustee, the Trustor and
each and every one of the Affiliated Trustors and, if necessary, their
respective spouses, have granted their consent for the execution of this
Agreement, through a handwritten signature on the signature pages
hereof.
"Exercise Date" shall mean each date on which the Trustee is empowered
to exercise the Purchase Rights in accordance with the provisions of
Clause Twelve of this instrument.
"Trust" shall mean the Trust that is established in accordance with this
Agreement.
"Trustor-Trustee" shall mean Xx. Xxxxxxx Xxxxxxx Xxxxxxxx, Engineer.
"Affiliated Trustor-Trustee" shall mean any person who, with the prior
authorization of the Technical Committee, adheres to this Trust
agreement, knowing the terms and conditions hereof and assuming all the
rights and obligations arising herefrom. At the time they adhere, such
persons must be executives or persons who provide a service to the Cemex
Group and who, in addition, sign the Letter of Adherence that is added
to this instrument as "Appendix C."
3
"Trustors-Trustees" shall mean all individuals who, through their
initial contributions, adhere to this Agreement and, for such reasons,
acquire such capacity, assuming the rights and obligations stipulated
herein, together with the Trustor-Trustee.
"Trustee" shall mean Banco Nacional de Mexico, S.A. a member of the
Banamex Financial Group, Trust Division.
"Purposes of the Trust" shall mean all the purposes set forth in Clause
Five of this Agreement.
"Indeval" shall mean the S.D. Indeval, S.A. de C.V., an Institution for
the Deposit of Securities.
"Instruction for the Execution of the Brokerage Agreement" shall have
the meaning set forth in subsection (a) paragraph 6 of Clause Five of
this Agreement.
"Instruction for the Execution of the Option Agreement" shall have the
meaning set forth in subsection (a) paragraph 2 of Clause Five of this
Agreement.
"Exercise Instruction" shall have the meaning set forth in subsection
(b) paragraph 6 of Clause Nine of this Agreement.
"Instruction for the Delivery of CPO's" shall mean the instruction that
both the Trustor as well as each Affiliated Trustor includes in an
Exercise Notification so that the procedure set forth in subsection (a)
paragraph 1 of Clause Twelve of this Agreement is followed.
"Investment Instruction" shall have the meaning set forth in subsection
(b) paragraph 5 of Clause Nine of this Agreement.
"Amendment Instruction" shall have the meaning set forth in subsection
(a) paragraph 2 of Clause Five of this Agreement.
"Payment Instruction" shall have the meaning set forth in subsection (a)
paragraph 3 of Clause Five of this Agreement.
"Instruction for the Sale of CPO's" shall mean the instruction that both
the Trustor as well as each Affiliated Trustor includes in an Exercise
Notification so that the procedure set forth in subsection (a) paragraph
2 of Clause Twelve of this Agreement is followed.
"Brokerage" shall mean the brokerage firm with which the Trustee
executes the Brokerage Agreement.
"Mexico" shall mean the United Mexican States.
"Exercise Notification" shall have the meaning set forth in subsection
(a) of Clause Twelve of this Agreement.
"Settlement Notification" shall have the meaning set forth in Clause
Seven of this Agreement.
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"Trust's Assets " means (i) the Initial Contribution; (ii) each and
every one of the Contributions of the Affiliated Trustors that is
deposited in the Trust Account; (iii) the Purchase Rights and other
Trustee rights under the Option Agreement; and (iv) the Acquired CPO's
and the proceeds from the sale of the Acquired CPO's up to the time when
they are distributed to the Trustor and/or the Affiliated Trustors in
accordance with the stipulations of this Agreement.
"Internal Policies" shall have the meaning set forth in subsection (m)
of Clause Twenty-three of this Agreement.
"Exercise Price" shall mean the price at which the Trustee has the right
to acquire the CPO's in accordance with the Option Agreement.
"Premium" shall mean the premium payable in Dollars by the Trustee to
the relevant third party for the Purchase Rights in accordance with the
Option Agreement.
"List of Initial Contributions" shall mean the list reflecting the
individual Initial Contributions of each of the Trustors-Trustees that
the Trustee and Technical Committee shall keep.
"List of Beneficiaries" shall have the meaning set forth in Clause Eight
of this Agreement.
Two.- Organization of the Trust. The Trustor-Trustee hereby organizes the
Revocable Closed Investment Trust. For such purpose, the Trustor-Trustee
deposits the Initial Contribution of U.S. $1,472,976.70 (ONE MILLION FOUR
HUNDRED SEVENTY-TWO THOUSAND NINE HUNDRED SEVENTY-SIX US DOLLARS AND 70/100)
through a transfer to the Trust Account. The Affiliated Trustors-Trustees shall
then deposit, in the same Trust Account, the relevant amounts, in the
proportions indicated in the List of Initial Contributions in order to fulfill
the Purposes of the Trust, and they shall also deposit, in the Trust Account,
the additional Contributions that are required under the provisions of Clause
Twelve of this Agreement.
With the prior authorization of the Technical Committee and the Trustee, the
Trust assets may be increased after its execution, with cash and/or securities,
through the initial and/or additional contributions made by the
Trustors-Trustees.
The Trustee shall confirm to the Technical Committee the receipt of the amounts
that, as Initial Contributions, are received in the Trust Account, no later than
2 (two) Working Days following the date on which the total amount of the Initial
Contributions are duly deposited in the Trust Account.
The parties acknowledge that the Assets placed in Trust are conveyed to the
Trustee to comply with the Purposes of the Trust. The Trustee does not assume
and is hereby relieved of any liability or obligation, express or implied, with
respect to the authenticity, ownership or legitimacy of the Assets placed in
Trust.
5
Three.- Trust's Assets. The assets of this Trust Agreement shall be made up of
the following:
i) the initial contribution that the Trustor-Trustee hereby delivers;
ii) the additional contributions that are added to the assets as
Initial Contributions by the Affiliated Trustors-Trustees;
iii) the purchase rights recorded in favor of each of the Trustors-
Trustees according to the terms of this Agreement;
iv) the interest earned by existing investments in the assets placed
in trust;
v) the securities that are acquired in fulfillment of the purposes of
this Agreement.
Four.- Parties to the Trust. The following are parties to this Agreement:
(i) the Trustor-Trustee, Xxxxxxx Xxxxxxx Xxxxxxxx, Engineer
(ii) the rest of the Trustors-Trustees who, with the prior
authorization of the Technical Committee, adhere to this Agreement
and whose adherence is notified in writing to the Trustee through
a separate instruction, and
(iii) the Trustee, Banco Nacional de Mexico, S.A., a member of the
Banamex Financial Group, Trust Division.
Any individual who, with the prior written authorization of the Technical
Committee, knows the terms and conditions hereof and assumes all the rights and
obligations arising herefrom, may adhere to this Agreement. At the time of their
adherence, such persons must be executives or persons who provide a service to
the Cemex Group and who also sign the Letter of Adherence that is added to this
instrument as Appendix "C."
Five.- Purposes of the Trust.
a) The Trustor-Trustee hereby instructs and authorizes the Trustee to perform
the acts or take the steps that are necessary to fulfill the following
Purposes of the Trust:
1. the receipt and disposal of the Contributions and the Acquired CPO's in the
Trust Account and the Securities Accounts, as applicable, according to the
written instructions that the Trustee receives from the Technical Committee
according to the terms set forth in paragraph 5 of this Clause and in the
following Clause Twelve;
2. the execution of the Option Agreement substantially according to the terms
and conditions of the draft that is added to this Agreement as Appendix
"B," but in any event in accordance with the instructions and according to
the terms indicated in writing by the Technical Committee, using for such
purpose the instruction form that is added to this Agreement as Appendix
"D" (the "Instruction for Execution of the Option Agreement"), as well as
the execution of agreements that amend the Option Agreement indicated in
writing by the Technical Committee, using for such purpose the instruction
form that is added to this Agreement as Appendix "E" (each of such
instructions, an "Amending Instruction");
3. the payment of the Premium according to the terms that are or will be
stipulated in the Option Agreement, through disposal of the Initial
Contributions deposited in the Trust, according to the instructions
indicated in writing by the
6
4. Technical Committee, using for such purpose the instruction form that is
added to this Agreement as Appendix "F" (the "Payment Instruction");
5. the exercise of the Purchase Rights in accordance with the stipulations of
Clause Twelve of this Agreement, solely in the cases and in accordance with
the instructions that he receives in writing from the Technical Committee
and only to the extent that the Trustee has received, in the Trust Account,
the additional Contributions necessary to cover the costs, fees and other
expenses that are relevant, directly or indirectly, to the exercise of such
Purchase Rights and, if necessary, the Exercise Price, in accordance with
the stipulations of paragraph 5 below;
6. according to the terms and conditions indicated by the Technical Committee
in writing in accordance with the stipulations of Clause Twelve of this
Agreement, the receipt and custody of the Acquired CPO's in the Securities
Accounts;
(i) subject to the provisions of subsection (d) of Clause Twelve of
this Agreement, the distribution of the Acquired CPO's to the
Trustor-Trustee and to the Affiliated Trustors-Trustees, as
applicable, only to the extent that the Trustee has received the
additional Contributions necessary to cover the pertinent Exercise
Price, the expenses, fees and other costs arising out of the
receipt and deposit of the Acquired CPO's; and/or
(ii) subject to the provisions of subsection (d) of Clause Twelve of
this Agreement, to apply the proceeds from the sale of the
Acquired CPO's through the Brokerage and the distribution of the
proceeds of such sale to: (1st) first, to payment to the third
party that is legally applicable according to the Option Agreement
of the pertinent Exercise Price; (2nd) second, to cover the
expenses, fees and other costs that arise or could arise out of
the receipt and sale of the Acquired CPO's; and (3rd) the rest, if
any, for deposit in the account of the Trustor-Trustee and/or the
Affiliated Trustors-Trustees indicated by the Technical Committee
for such purpose in the respective Exercise Instruction.
6. execution of the Brokerage Agreement according to the terms and conditions
indicated by the Technical Committee in writing, using for such purpose the
instruction form that is added to this Agreement as Appendix "G" (the
"Instruction for the Execution of the Brokerage Agreement").
7. The investment, solely through the Treasury of the Banco Nacional de
Mexico, S.A., member of the Banamex Financial Group, of the liquid funds in
Dollars that make up the Trust's Assets and that are deposited in the Trust
Account, in readily realizable instruments denominated in Dollars indicated
by the Technical Committee in the respective Investment Instruction(s),
with the understanding that (i) in no event shall an investment be made,
directly or indirectly, in other trusts or in commercial paper without a
bank guarantee and (ii) only amounts of not less than U.S. $100,000.00 (one
hundred thousand Dollars and 00/100) or more shall be invested, in readily
available funds no later than 10:00 a.m. (Mexico City time);
7
8. once the expenses arising from this Agreement are deducted, including,
without limitation, the Trustee's expenses and fees, the return and/or
distribution of the Trust's Assets shall be made to the Trustor-Trustee
and/or to the Affiliated Trustors-Trustees according to the terms and in
the proportions indicated by the Technical Committee in the Settlement
Notification.
(b) The Trustee shall record the movements of the Trust Account and the
Securities Accounts both in its own books and in separate books, and shall keep
such records and the List of Initial Contributions at the Trustee's domicile
indicated on the respective signature page of this Agreement, at the disposal of
the Technical Committee and of the Trustors-Trustees.
(c) The Trustor-Trustee and/or the Affiliated Trustors-Trustees accept and
expressly acknowledge that the Trustee shall only be required to act in
accordance with instructions that it receives in writing from the Technical
Committee, in the manner and other terms expressly stipulated in this Agreement.
(d) The Trustee shall open and keep a detailed record of (i) the Initial
Contributions and other Contributions of the Trustors-Trustees that are
deposited in the Trust Account and (ii) the distributions that are made from the
Trust Account and the Securities Account by the Trustee to them at the Technical
Committee's instructions.
(e) The Trustee shall keep the List of Beneficiaries and a list of the
Trustors-Trustees showing (i) the interest of each of the Trustors-Trustees in
the Trust's Assets, including, without limitation, in the Purchase Rights; (ii)
the disposals of the Trust's Assets corresponding to the Contributions of each
of the Trustors-Trustees made by the Trustee at the Technical Committee's
instructions, whether for the payment of the Premium, of the Exercise Price or
for any other reason; and (iii) the number of Acquired CPO's that, as the case
may be, belong to each of the Trustors-Trustees.
Six.- Investment of the Assets. The Trustee shall invest the Assets placed in
Trust in compliance with the express written instructions that are received from
the Technical Committee.
When the Trustee does not receive instructions from the Technical Committee to
handle the Investment at least 24 hours in advance the Trustee shall invest the
Assets placed in Trust according to the following: (i) the maximum investment
terms shall be 7 days; (ii) the investment shall be made in the currency in
which the liquid funds are denominated, (iii) in all cases in which the Trustee
carries out investment operations, the Treasury of the Banco Nacional de Mexico,
S.A., Member of the Banamex Financial Group, shall act as the counterparty, and
(iv) the Trustee shall make the investments in the securities and with the rates
that are available on the market at the time of the investment according to the
applicable terms and amounts and in accordance with the provisions of Clause
Five, subsection (a), paragraph 7 of this Agreement, whether in national
currency or in Dollars, in the following order, with the understanding that what
is stipulated in this paragraph shall be deemed by the parties as a permanent
instruction so long as the Trustee does not receive written instructions from
the Technical Committee to invest the assets placed in trust:
8
Mexican Pesos
1) Liabilities of the Banco Nacional de Mexico, S.A., Member
of the Banamex Financial Group;
2) Bank debt instruments, whether direct or repurchase
agreements;
3) Securities issued by the Federal Government, whether
direct or repurchase agreements.
U.S. dollars
1) Liabilities of Banamex, City Group, Inc. or any other of
its subsidiaries, denominated in U.S. dollars.
Seven.- Term of the Agreement. This Agreement shall be terminated, once all the
expenses that arise herefrom are covered, including but not limited to the
Trustee's expenses and fees, for any of the following reasons: (i) the Purposes
of the Trusts are fulfilled; (ii) because of the return and/or distribution of
the Trust's Assets to the Trustors-Trustees in accordance with instructions that
the Technical Committee presents to the Trustee according to the terms of the
notification form that is added to this Agreement as Appendix "H" (the
"Settlement Notification"), (iii) because of the Trustee's resignation according
to the terms set forth in Clause Twenty-three of this Agreement; (iv) through
express written revocation by the Trustors-Trustees; or (v) for the reasons set
forth in Article 392 of the General Credit Instruments and Transactions Act that
are consistent with the nature of this Agreement; but, in any event, in a period
not to exceed 30 (thirty) years as from the Closing Date.
Eight.- Beneficiaries in case of Death. Each of the Trustors-Trustees shall
designate one or more persons who are identified in Appendix "I" of this
Agreement (the "List of Beneficiaries"), as their beneficiaries in case of
death. The Technical Committee shall be responsible for keeping the List of
Beneficiaries updated according to the instructions that it receives in writing
from the Trustors-Trustees. The Trustors-Trustees expressly acknowledge that, in
all matters related to the List of Beneficiaries, the Trustee's responsibility
is limited in all cases to complying with the instructions that it receives in
writing from the Technical Committee.
Nine.- Technical Committee. (a) In accordance with the stipulations of the third
paragraph of Article 80 of the Credit Institutions Act, the Trustor-Trustee
hereby organizes a Technical Committee (the "Technical Committee"), made up of
three regular members and six alternate members, any of which may replace one of
the regular members, according to the following:
1. The Technical Committee shall meet as many times as necessary, and no
formal meeting shall be required. For that purpose, a written notice signed
by three of its members, one of whom must be a regular member, clearly
setting out the resolutions and decisions that were made shall be
sufficient for them to be considered valid;
2. A handwritten copy of such written notice, duly signed by the pertinent
parties, shall be submitted to the Trustee, with precise instructions that,
as the case may be, are applicable; agreement
9
3. The Trustee and the advisers that the Technical Committee itself deems
appropriate may attend the Technical Committee's meetings, with the
understanding that they may speak out but may not vote;
4. In case of resignation, disability, removal, death or any other situation
that results in the permanent absence of any of the members, whether
regular or alternate, of the Technical Committee, the Technical Committee
itself shall appoint, in a timely manner, the successor(s) required in
order to have at all times at least three regular members and six alternate
members. The Chairman of the Technical Committee shall be responsible for
notifying the Trustee in writing of the name, particulars, and signature
samples of all of its members; and
5. The position of the Technical Committee members shall be honorary.
(b) The Technical Committee shall have the following powers:
1. it may open and keep a detailed record of (i) the Initial Contributions and
other Contributions by the Trustors-Trustees; and (ii) the distributions
that, from the Trust Account and the Securities Account, are made by the
Trustee to the Trustors-Trustees at the Technical Committee's instruction;
2. it may keep the List of Beneficiaries and a list of the Trustors-Trustees
noting (i) the interest of each of the Trustors-Trustees in the Trust's
Assets, including, without limitation, in the Purchase Rights; (ii) the
disposals of the Trust's Assets corresponding to the Contributions of each
of the Trustors-Trustees made by the Trustee at the Technical Committee's
instructions, whether for the payment of the Premium, of the Exercise Price
or for any other reason; and (iii) the number of Acquired CPO's that, as
the case may be, belong to each of the Trustors-Trustees;
3. it shall work together with the Trustee in the preparation, updating and
confirmation of the lists and other documents referred to in subsections
(b), (d) and (e) of Clause Five of this Agreement;
4. it shall keep a file containing the originals of the resolutions, written
communications and instructions of the Technical Committee;
5. it shall instruct the Trustee in writing, using the instruction form that
is added to this Agreement as Appendix "J" (the " Investment Instruction"),
which shall be signed by three of the members of the Technical Committee,
one of whom shall be a regular member, on the form and proportion in which
it must invest the Contributions that are deposited in the Trust Accounts;
6. it shall instruct the Trustee in writing so that the latter will proceed,
in whole or in part, with the exercise of the Purchase Rights, using for
such purpose the instruction form that is added to this Agreement as
Appendix "K" (each of such instructions an " Exercise Instruction"), which,
in any event, shall be signed by three of the members of the Technical
Committee, one of whom shall be a regular member;
10
7. it shall advise the Trustee in a timely manner of everything that the
latter requests or requires in connection with this Agreement;
8. it shall request, on a quarterly basis, information and documentation from
the Trustee on the status of the Trust's Assets;
9. it shall present to the Trustee (i) the Settlement Notification in
accordance with the stipulations of Clause Seven of this Agreement; (ii)
the Instruction for the Execution of the Option Agreement; (iii) the
Instructions for the Execution of the Brokerage Agreement; and (iv) the
Payment Instruction and, as applicable, it may submit the Amendment
Instruction to the Trustee;
10. in all cases in which any Trustor-Trustee presents to the Technical
Committee an Exercise Notification that includes an Instruction for the
Delivery of CPO's, the Technical Committee shall notify the
Trustors-Trustees that have instructed the Technical Committee to deliver
the CPO's of the amounts of the additional Contributions that they must
deposit in the Trust Account so that, in accordance with the provisions of
subsection (a) paragraph 1 of Clause Twelve of this Agreement, the Trustee
covers all the expenses, fees and other costs that arise or could arise
from the receipt and delivery of the Acquired CPO's;
11. in accordance with the provisions of subsection (d) below, the Technical
Committee may, on behalf and in representation of the Trustors-Trustees,
execute with the Trustee, precisely and in writing, all agreements amending
this Agreement that it deems appropriate, while safeguarding the interests
and benefits of the Trustors-Trustees;
12. Generally, it shall exercise all the powers that are necessary or
appropriate in order to achieve the Purposes of the Trust.
(c) The following persons are designated as regular and alternate members of
the Technical Committee:
Regular members Position
--------------- --------
Xx. Xxxxxxx Xxxxxxx Xxxxxxxx, Engineer Chairman
Xx. Xxxx Xxxxxxxxx Xxxxxxx, Engineer Secretary
Xx. Xxxxxxx X. Xxxxxx Xxxxxxx, Engineer Member
Alternate Members
-----------------
Xx. Xxxxxxxx X. Xxxxxxx Xxxxxxxxx, Engineer Xx. Xxxxxx Xxxxxxx Bandala, Public
Accountant Lic. Xxxx Xxxxxxxx Xxxxxxx Xxxxxxxx Lic. Xxxxxxx Xxxxxxx Xxxxxx
Xxxxxx Xx. Xxxxxx Xxxxxxx Xxxxxxxxx, Engineer Lic. Xxxx Xxxxxx Del Xxxxx Xxxxxx
The personal details and sample signatures for each of the regular and alternate
members of the Technical Committee, as well as the registered address for
receiving all the notices and notifications related to this Agreement, are
contained in the
11
document that, duly signed by the Chairman of the Technical Committee, is added
to this Agreement as Appendix "L."
(d) The Trustor-Trustee hereby grants a Special Power-of-Attorney in favor of
the Technical Committee so that, on behalf and in representation of the
Trustors-Trustees, it will execute with the Trustee, precisely and in writing,
all the amendments to this Agreement that it deems appropriate, always
safeguarding the interests and benefits of the Trustors-Trustees. The parties
agree that, in case of such a Special Power-of-Attorney, there shall be no
compensation whatsoever in favor of the Technical Committee or any of its
members, and the Technical Committee and each of its members expressly and
irrevocably waive any compensation that might arise from the task entrusted to
them.
Ten.- Tax Obligations. The Trustors-Trustees shall, in accordance with current
legal provisions, be strictly responsible for complying with all taxes, levies
and other obligations of a fiscal nature that, as a consequence of the validity
of and the performance of actions under this Agreement, are established or
imposed by the pertinent tax provisions.
The Trustee shall have no liability whatsoever for the failure to comply with
such obligations for which the Trustors-Trustees are responsible. With respect
to the tax obligations with which the Trustee must comply as a consequence of
the performance of actions relative to the purposes of the trust or those
performed at the instructions of the Trustors-Trustees themselves or of the
Technical Committee, as applicable, the Trustee shall comply with such tax
obligations as are related to the funds that are the object of the trust, and,
in the event that there are not enough funds, the Trustors-Trustees and
Technical Committee, as the case may be, agree to increase the trust with
sufficient funds to comply with the tax obligations indicated in this clause.
The Trustors-Trustees and the Technical Committee shall, as the case may be,
furnish the Trustee, when the latter requests it, with all documents necessary
or sufficient to show that the tax obligations for which it is responsible have
been duly and fully complied with.
Eleven.- Collection of Yields and Form of Application. The Trustee shall be
empowered to collect the interest and other proceeds from the investments that
it makes in accordance with the Investment Instructions and to deduct the
necessary sums to pay reasonable and duly documented expenses and taxes which,
if applicable, arise from such investments and handling of the Trust's Assets.
Twelve.- Exercise of Purchase Rights; Disposal of Trust's Assets. For the
purposes of the exercise of the Purchase Rights under the Option Agreement, the
parties agree to abide by the following procedure:
(a) at least one Business Day in advance of each Exercise Date, the
Technical Committee shall receive from such Trustors-Trustees as wish
to make use of the proportional part of the Purchase Rights that
pertain to them, irrevocable individual notification for each
Trustor-Trustee, pursuant to the notification form attached to this
Agreement as Appendix "M" (each of such notification, a "Exercise
Notification"). Each Exercise
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Notification shall establish: (i) an irrevocable instruction for the
Technical Committee to present to the Trustee such Exercise Instruction
or Instructions as are necessary for the due exercise of the Purchase
Rights; (ii) the number of CPO's which the Trustee shall acquire in
exercise of the Purchase Rights; (iii) an irrevocable instruction to
the Technical Committee for the Technical Committee, in turn, to
instruct the Trustee, through the respective Exercise Instruction, to
take the actions and steps required to receive, through a deposit in
the Securities Account, the corresponding number of Acquired CPO's; and
(iv) a CPO Delivery Instruction, or (B) a CPO Sale Instruction.
1. Subject to the provisions of paragraph (d) of this Clause, in
each case in which an Exercise Notification contains a CPO Delivery
Instruction, the respective Trustor-Trustee shall (i) irrevocably
instruct the Technical Committee for the Technical Committee in turn
to instruct the Trustee, through the respective Exercise
Instruction, to take the actions and steps required for the Trustee
to receive the Acquired CPO's; (ii) deposit in the Trustee's Account
such Contributions as are necessary to cover the Exercice Price
corresponding to the Acquired CPO's, expenses, commissions and other
costs derived or which may be derived from the purchase and
depositing of such Acquired CPO's; and (iii) indicate the data of
the account in which the Trustee shall deposit such Acquired CPO's.
2. Subject to the provisions of paragraph (d) of this Clause, in
each case in which an Exercise Notification contains a CPO Sale
Instruction, the respective Trustor-Trustee shall irrevocably
instruct the Technical Committee to instruct in turn the Trustee,
through the respective Exercise Instruction, to (a) take such
actions and steps as are necessary for the Trustee to receive such
Acquired CPO's as a result from such payment; and (b) sell the
corresponding Acquired CPO's, for the result of the sale of such
Acquired CPO's to be applied in the following order (i) first, to
the payment to the legally appropriate third party pursuant to the
Option Agreement, of the corresponding Exercice Price; (ii) second,
to cover such expenses, commissions and other costs derived or which
may derive from the purchase and deposit of such Acquired CPO's, as
well as from the sale of the respective Acquired CPO's; and (iii)
third, the remainder, if any, shall be deposited, in Mexican Pesos,
in the respective account of the Trustor-Trustee indicated by the
Technical Committee for such purpose in the CPO Sale Instruction
contained in the respective Exercise Instruction.
(b) In the case stipulated in paragraph (a) number 1 of this Clause, the
Trustors-Trustees shall deposit in the Trust Account, no later than the
Business Day immediately prior to each Exercise Date, such immediately
available amounts in Dollars as are required for the Trustee to
exercise the corresponding Purchase Rights pursuant to each Exercise
Instruction;
(b) the Technical Committee shall present to the Trustee an Exercise
Instruction, by no later than the Business Day immediately prior to the
Exercise Date, in which it (i) irrevocably instructs the Trustee to
exercise the respective Purchase Rights with respect to the third party
with which the Option Agreement has been entered into; (ii) specify the
number of CPO's which the Trustee shall acquire in exercise of the
Purchase Rights; (iii) receive the respective Acquired CPO's in the
Securities Account; (iv)
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irrevocably instruct the Trustee to take such actions and steps as are
necessary for the Trustee to receive the CPO's; and (v) perform such
actions as the Technical Committee indicates to it in the respective
Exercise Instruction, pursuant to each CPO Delivery Instruction or CPO
Sale Instruction, as the case may be.
(d) under the terms indicated by the Technical Committee in each Exercise
Instruction, the Trustee shall exercise the Purchase Rights pursuant to
the provisions of the Option Agreement; with the understanding,
however, that (i) in the cases in which the Trustee should undertake a
Dollar purchase transaction with Mexican Pesos, pursuant to an Exercise
Instruction, the Trustee shall quote and perform each one of such
transactions exclusively through Banco Nacional de Mexico, S.A.; and
(ii) the Trustee shall transfer the Acquired CPO's, or the result of
the sale thereof, as the case may be, into the account or accounts
indicated on each Exercise Instruction, within two Business Days after
the date on which the Trustee receives the Acquired CPO's or the
proceeds of the sale thereof, as the case may be.
(e) it is expressly agreed that the Trustee is released from any and all
liability that may be derived or derives from the exercise of the
Purchase Rights pursuant to the provisions of this Clause. Each of the
Trustors-Trustees shall be obligated jointly and severally and without
limitation to indemnify and hold the Trustee harmless from any
liability which derives or may be derived from the Trustee's actions or
omissions in the performance of the instructions granted by the
Technical Committee; however, the Trustee shall be obligated to
indemnify the Trustors-Trustees for bad faith acts or actions beyond
the authorities that pertain to it for the performance of the Trust, in
virtue of the trust contract, the law or the instructions given by the
Technical Committee, which it makes to the detriment of the
Trustors-Trustees.
Thirteen.Trustee Authorizations. The Trustors-Trustees irrevocably authorize and
instruct the Trustee to act under the terms stipulated in this Agreement,
including, but not limited to, pursuant to the provisions of Clause Twelve,
pursuant to the prior written instructions from the Technical Committee.
Fourteen.Defense of Trust's Assets. (a) The Trustee shall always operate with
due diligence and shall not abandon, leave unprotected, or allow or cause any
harm to the Trust's Assets. The Trustors-Trustees shall be liable for the timely
and correct payment of any taxes, contributions, fees and charges, assessed or
charged by any government entity, which are levied on or derived from this
Agreement, the Option Agreement, the Exercise of the Purchase Rights or the
Trust's Assets. The Trustors-Trustees shall also provide the Trustee with
certifiable proof that each and all such taxes, contributions, fees and charges
have been paid timely, properly and in full.
(c) If the Trust's Assets must be defended, including, but not limited to
the defense of the Contributions, the Option Agreement, the Purchase
Rights, the Acquired CPO's, the Trustee shall only be obligated to
grant a power or powers of attorney to the person or persons designated
in writing by the Technical Committee (the "Agents"), without it
thereby assuming any responsibility
14
whatsoever for the actions of the Agents, which stipulation shall be
transcribed in the document containing the power or powers of attorney
granted, and provided that the Agents agree that the expenses and fees
caused by their actions be paid to them directly by the
Trustors-Trustees, without the Trustee being liable for any such items.
Fifteen. Expenses, Costs, Taxes, Commissions and Fees. All expenses,
commissions, taxes and fees which are reasonable and duly documented, derived
from the preparation, formalization, notification and, if applicable, recording
of this Agreement, as well as for any amendment hereto, and for any act or
document which pursuant to this Agreement must be prepared, signed or noticed,
including the fees of the Trustee's legal advisors, as well as all reasonable
and duly documented expenses incurred by the Trustee in the performance of its
obligations and in exercise of its rights pursuant to this Agreement, shall be
borne exclusively by the Trustors-Trustees.
For its participation in this Document, the Trustors-Trustees shall pay the
Trustee the following commissions:
1. For acceptance of the position of Trustee under this Agreement, the
amount of US$ 5,000.00 (five thousand Dollars and 00/100), payable in a
lump sum on the date this Agreement is signed.
2. For administering the Trust's Assets, the amount of US$ 18,000.00
(eighteen thousand Dollars and 00/100) per year, payable in advance.
The first of such payments shall be made on the date this Agreement is
signed, and subsequent ones, during the first 5 (five) Business Days of
the month of May of each year during the effective period of this
Agreement.
3. The amount of US$ 100.00 (one hundred Dollars and 00/100) per year, by
each of the Trustors-Trustees, payable in advance. The first of such
payments shall be made on the Closing Date, and subsequent ones, during
the first five (5) Business Days of the month of May of each year
during the effective period of this Agreement.
Each and every one of the commissions described above shall be subject to
Value-Added Tax, and shall be paid in immediately available funds, through an
electronic transfer to the Trust Account, under the terms stipulated in the
document which, duly signed, was delivered to the Trustee on the Closing Date.
Sixteen. Amendments to the Agreement . The present Trust Agreement may be
amended by the Technical Committee, in exercise of the Special Mandate that was
granted to it under the terms of Clause Nine, paragraph (d) of this Agreement,
as responsible for its actions to safeguard the interests and benefits of the
Trustors-Trustees.
Seventeen. Rendering of Accounts. On a monthly basis, the Trustee shall prepare
and send to the Technical Committee, at the address indicated in Clause Eighteen
of this contract, a statement of account which contains the transactions
performed in this Trust during the corresponding period.
15
The Technical Committee shall enjoy a period of 15 (fifteen) calendar days
calculated from the date the aforementioned statement of account is received to
make, if applicable, clarifications thereto. Once such time frame has lapsed
without there being any objection on the part of the Technical Committee, each
of the transactions reflected on such Statement of Account shall be deemed
accepted by such Committee.
Eighteen. Domiciles. All communications that the parties must make under the
terms of this Agreement, including changes of address, shall be made precisely
in writing and presented (i) in person with acknowledgment of receipt; (ii) by
messenger or personal notification, with acknowledgment of receipt. All notices
and notifications shall be presented at the following contractual domiciles and
faxes:
Trustor-
Trustee: Ave. Constitucion Xx. 000 Xxx.
00000 Xxxxxxxxx, Xxxxx Xxxx, Xxxxxx
Fax number: 8328.7163
Technical Committee: Ave. Constitucion No. 444 Pte.
64000 Monterrey, Nuevo Xxxx, Mexico
For the attention of Xx. Xxxxxxxx Xxxxxxx
Xxxxxxxxx, Engineer
Fax number: 8328.7162
Trustee: Xxxxxxx del Xxxxx No. 350 Ote.
Col. Del Xxxxx X.X. 66220
San Xxxxx Xxxxx Xxxxxx, Nuevo Xxxx
Fax number: 1226.2097
All notices sent pursuant to this Agreement shall be deemed validly delivered at
the aforementioned addresses. All changes of address shall be notified in
writing between the parties.
Nineteen. Assignment. The rights and obligations derived from this Agreement may
not be assigned or transferred to any third party. Only in case of death of any
of the Trustors-Trustees shall the exercise of the rights and performance of the
corresponding obligations be recognized for the Beneficiaries designated
pursuant to Clause Eight.
Twenty. Appendices and Titles. All documents attached to this Agreement or to
which reference is made, form an integral part hereof as if actually inserted
herein. The titles and headings of the Clauses of this Agreement shall be used
only for reference and shall not affect the interpretation of this Agreement.
Twenty-One. Applicable Law and Competent Courts. For all matters related to the
interpretation and performance of this Agreement, the parties expressly and
irrevocably agree to abide by the applicable laws of Mexico, and to the
jurisdiction of the competent courts of Monterrey, Nuevo Xxxx, expressly and
irrevocably waiving any other venue which may pertain to them by reason of their
respective domiciles, present or future, or for any other reason.
Twenty-Two. Fax communications. The Trustee is authorized to take actions or
steps, instructed by the Technical Committee, through communications transmitted
by fax, provided that the authenticity of such communications is verified.
Notwithstanding the aforesaid, the parties acknowledge that the Trustee has
certain internal policies with respect to the use of manual procedures for
receiving and processing instructions transmitted by fax or other manual
methods. As a result, the person designated by the Technical Committee to that
end shall sign with the Trustee the document where such policies are contained,
simultaneously with the signing of this Agreement.
Twenty-Three. Terms and Conditions of the Trustee Service. In order to induce
the Trustee to enter into this Agreement, the Trustors-Trustees agree the
following with the Trustee:
(a) the Trustee does not form part of the Technical Committee, wherefore it
shall only be obligated to act pursuant to the instructions received in
writing from the Technical Committee, and it shall not have any
obligation whatsoever to determine the authenticity of the content or
signature on any of such instructions. The Trustors-Trustees
acknowledge that the Trustee has certain internal policies regarding
the use of manual procedures to receive and process instructions
transmitted by fax or other manual means. As a result, the
Trustors-Trustees, and the full and alternate members of the Technical
Committee subject and bind themselves under the terms of the document
containing such policies, which they have entered into with the Trustee
prior to signing this Agreement;
(b) the Trustee shall not be obligated to exercise a greater degree of care
in conserving the Trustee Assets than that degree of care it uses for
its own property. The Trustee shall not be obligated to invest the
amounts that are deposited in the Trust Account except as stipulated in
Clause Six of this Agreement;
(c) the Trustee is expressly and irrevocably authorized, upon prior
notification to the Technical Committee, to use the amounts deposited
in the Trust Account, to pay any costs, fees, commissions and other
expenses directly or indirectly derived from this Agreement, subject to
the terms and conditions established in the clauses of this Agreement;
(d) this Agreement expressly establishes all the Trustee's obligations. The
Trustee does not assume any implicit obligation whatsoever under this
Agreement, nor obligations derived directly or indirectly from
agreements or contracts of the Trustors-Trustees among themselves or
with any third party;
(e) the Trustors-Trustees jointly and severally undertake to indemnify and
hold harmless the Trustee, its subsidiaries, affiliated and related
parties, and their respective directors, officers, employees,
mandataries and agents, from any loss, liability, claim, action, damage
or expense, including attorneys' fees and expenses, which derive or may
derive from this Agreement; however, the Trustee shall be obligated to
indemnify the Trustors-
17
Trustees for acts of bad faith or actions beyond the authorities that
pertain to it for the performance of the trust, in accordance with the
trust contract, the law or the instructions given by the Technical
Committee, which it makes to the detriment of the Trustors-Trustees;
(f) the Trustors-Trustees shall be jointly and severally liable without
limitation for any tax, fee, contribution or tax liability of any
nature derived or which may derive from or in relation to this
Agreement and the Trust's Assets, and undertake jointly and severally,
without limitation, to indemnify and hold the Trustee harmless for any
payments which the Trustee is obligated to make in virtue of such
taxes. The obligations of the Trustors-Trustees stipulated in this
paragraph and the preceding paragraph shall continue in full force and
effect even after the termination date of this Agreement or the
resignation of the Trustee; but in any case, for a maximum period of 3
(three) years calculated from the termination date of this Agreement;
(g) the Trustee unequivocally informed the parties appearing in this
Agreement of the legal scope and consequences of the provisions of the
first three paragraphs of paragraph (b) of Section XIX of Article 106
(one hundred six) of the Credit Institutions Act, which literally
state:
"Art. 106. Credit institutions shall be prohibited from:
XIX. In the performance of the transactions cited in Section XV of
Article 46 of this Act:
(b) Be liable to the trustors, constituents or principals, for default
by debtor of the loans granted, or of issuers, for securities acquired,
except if through their culpability, as stipulated in the last part of
Article 356 of the General Credit Instruments and Transactions Act, or
to guarantee receipt of income from funds whose investment is entrusted
to them.
If at the end of the trust, mandate or commission constituted for the
granting of loans, they have not been paid by their debtors, the
institution shall transfer them to the trustor or trustees, as the case
may be, or to the principal or constituent, refraining from paying the
amount thereof.
Any agreement contrary to the stipulations of the preceding two
paragraphs, shall not have any legal effect whatsoever.
The preceding paragraphs of this section shall be prominently inserted
in trust, mandate or commission agreements, in addition to a statement
from the Trustee to the effect that it unequivocally informed the
persons from whom it has received assets for investment of the content
thereof."
In accordance with amendments to the General Credit Instruments and
Transactions Act published in the Official Bulletin of May 23, 2000,
and considering that currently paragraph b, of Section XIX of Article
106 to which this clause refers has not been adjusted to those
amendments, for all applicable legal effects,
18
the mention made to Article 356 of the General Credit Instruments and
Transactions Act shall be deemed as referring to Article 391 of such
law.
(h) the Trustee shall not be liable in any case for the validity, value or
enforceability of the Option Agreement, the Purchase Rights, the
Acquired CPO's or any other instrument or right related directly or
indirectly to this Agreement;
(i) the Trustors-Trustees agree and acknowledge that the Trustee shall have
no liability (i) if the Trust's Assets or any part thereof is
expropriated, nationalized or confiscated; (ii) for a breach of its
obligations under this Agreement for causes or circumstances beyond its
control; or (iii) for the legal capacity of the other parties to this
Agreement to acquire and maintain ownership of the Trust's Assets;
(j) the Trustee shall not provide, nor shall it be responsible for
providing, any advice to the Trustors-Trustees with respect to the
appropriateness or inappropriateness of investing, selling, holding or
taking or not taking any action or decision with respect to the Option
Agreement, the Purchase Rights or any other instrument or right
directly or indirectly related to this Agreement;
(k) the Trustee (and any other trustee replacing it) may resign its
position of Trustee at any time through (i) written notification to the
Technical Committee, and (ii) delivery of the Trust's Assets under the
terms indicated by the Technical Committee in writing. If the Technical
Committee does not present written instructions to the Trustee to that
end within the 60 (sixty) calendar days after the date on which the
Trustee resigns, the Trustee shall give the Trust's Assets to any
competent authority without any liability whatsoever, and the Trustee
shall be released from any and all of its obligations derived from this
Agreement.
(l) in case of any dispute between the Trustors-Trustees and/or the
Technical Committee which results or may result in claims or demands in
relation to this Agreement, the Trustee shall be authorized (i) to
withhold the Trust's Assets until it receives a final and definitive
judgment from a competent court ordering delivery of the Trust's
Assets; or a written agreement entered into by all the
Trustors-Trustees instructing the Trustee to distribute the Trust's
Assets; or (ii) give the Trust's Assets to any competent authority
without any liability whatsoever. In any case, the Trustee shall be
released from each and every one of its obligations derived from this
Agreement;
(m) the Trustors-Trustees acknowledge that the Trustee forms part of the
Banamex Financial Group, an integral part of the group internationally
known as "Citicorp," and therefore is subject to the internal policies
and rules of Citicorp and its subsidiary Citibank, N.A., regarding the
administration and performance of trust services (the "Internal
Policies"), wherefore if any instruction from any of the parties or any
other act which the Trustee must perform pursuant to this Agreement
contradicts the Internal
19
Policies which are in effect on that date, the Trustee shall
immediately inform the parties of such circumstance to agree as
appropriate, so as to prevent the Trustee from committing a violation
of its Internal Policies.
(n) the Trustors-Trustees and the members of the Technical Committee
undertake not to use in any manner the name or logotype of the Trustee
or any of its subsidiaries or related companies, without prior written
consent from the Trustee.
IN WITNESS WHEREOF, having read this Agreement and aware of its legal content
and scope, the parties sign it in agreement on February 27, 2003.
Trustor-Trustee:
[signature]
Xx. Xxxxxxx Xxxxxxx Xxxxxxxx, Engineer
Trustee:
Banco Nacional de Mexico, S.A.
Banamex Financial Group
Trust Division
[signature]
Lic. Xxxxx de los Angeles Xxxxxxxxxx Xxxxx
Trust Officer
[signature]
Lic. Xxxx Xxxxx Xxxx Xxxxxxx
Special Agent
20
Appendix "A"
GENERAL IDENTIFICATION DATA
NAME: XX. XXXXXXX XXXXXXX XXXXXXXX
R.F.C.: TEMR-560930-AY0
IFE FOLIO No.: 35233801
NATIONALITY: MEXICAN
MARITAL STATUS: MARRIED
OCCUPATION: PROFESSIONAL
NATIVE OF: MONTERREY, NUEVO XXXX
ADDRESS: AVE. CONSTITUCION Xx. 000 XXX.
XXXXXXXXX, XXXXX XXXX
X.X. 00000
00
Xxxxxxxx "X"
Option Agreement
22
Appendix "C"
Letter of Adherence
Banco Nacional de Mexico, S.A.
Regional Fiduciario Norte
Xxxxxxx del Xxxxx No. 350 Ote.
Col. del Xxxxx X.X. 66220
San Xxxxx Xxxxx Xxxxxx, Nuevo Xxxx
Ref: Closed Investment Trust
No. 111174-2
For the attention of: Lic. Xxxxx Xxxx
I, (Enter the name of the Affiliated Trustor), for my own rights,
hereby declare my agreement to adhere to Closed Investment Trust No. 111174-2 as
a Trustor-Trustee and confirm that I understand its terms and conditions. As
such, I acquire all the corresponding rights and obligations without any
reserves or limits whatsoever.
By virtue of the above, in this act I deposit the sum of USD ____________ as my
Initial Contribution to the aforementioned Trust Agreement.
(________________________________ US dollars and 00/100) by means of the
transfer that I am making to the Trust Account.
The above is in accordance with the terms and conditions stipulated in Clause
Two and Clause Three of the said Trust Agreement.
This instruction is legally binding and shall be effective as of receipt of this
fax, and I undertake to deliver the original document as soon as possible.
Location and date
______________________________________________
(Name and signature of the Affiliated Trustor)
23
Appendix "D"
Instruction for the Execution of the Option Agreement
Banco Nacional de Mexico, S.A.
Regional Fiduciario Norte
Xxxxxxx del Xxxxx No. 350 Ote.
Col. del Xxxxx X.X. 66220
San Xxxxx Xxxxx Xxxxxx, Nuevo Xxxx
Ref: Closed Investment Trust
No. 111174-2
For the attention of: Lic. Xxxxx Xxxx
Dear Sirs,
This Instruction for the Execution of the Option Agreement is presented as
stipulated in Subsection (a)2 of Clause Four of the Closed Investment Trust
Agreement concluded on February 27, 2003 (hereinafter the "Agreement") by Xx.
Xxxxxxx Xxxxxxx Xxxxxxxx, Engineer, in his capacity as Trustor-Trustee (as
defined in the Agreement) and Banco Nacional de Mexico, S.A., Banamex Financial
Group, Trust Division, in its capacity as Trustee (hereinafter the "Trustee").
Any terms with the first letter in upper case in this document not expressly
defined herein, shall be used as defined in the Agreement.
By means of this document and as stipulated in subsection (a)2 of Clause Four of
the Agreement, the Technical Committee hereby authorizes and instructs this
institution, acting exclusively in its capacity as Trustee pursuant to the
Agreement, to exercise the Option Agreement with CENTRO DISTRIBUIDOR DE CEMENTO
S.A. DE C.V. "CEDICE" under the terms and conditions set forth in the definitive
version of the Option Agreement appended to the present document in Appendix
"1".
The Technical Committee hereby certifies under oath that the present Instruction
for the Execution of the Option Agreement is upheld in the Unanimous Resolutions
of the Technical Committee dated ______________________ 2003. A signed copy of
the minutes in which the aforementioned agreements are reported, duly signed by
the members of the Technical Committee who attended said meeting, is appended to
this document in Appendix "2".
The Technical Committee
By: _______________________ By: _______________________
Name: Xx. Xxxxxxx Xxxxxxx, Engineer Name:
Function: Chairman of the Technical Committee Function: Alternate Member
24
Appendix "E"
Instruction for Amendment of the Option Agreement
(Date)
Banco Nacional de Mexico, S.A.
Regional Fiduciario Norte
Xxxxxxx del Xxxxx No. 350 Ote.
Col. del Xxxxx X.X. 66220
San Xxxxx Xxxxx Xxxxxx, Nuevo Xxxx
Ref: Closed Investment Trust
No. 111174-2
For the attention of: Lic. Xxxxx Xxxx
Dear Sirs,
This Instruction for the Amendment of the Option Agreement is presented as
stipulated in subsection (a)2 of Clause Four of the Closed Investment Trust
Agreement concluded on February 27, 2003 (hereinafter the "Agreement") by Xx.
Xxxxxxx Xxxxxxx Xxxxxxxx, Engineer, in his capacity as Trustor-Trustee (as
defined in the Agreement) and Banco Nacional de Mexico, S.A., Banamex Financial
Group, Trust Division, in its capacity as Trustee (hereinafter the "Trustee").
Any terms with the first letter in upper case in this document not expressly
defined herein, shall be used as defined in the Agreement.
By means of this document and as stipulated in aubsection (a)2 of Clause Four of
the Agreement, the Technical Committee hereby authorizes and instructs this
institution, acting exclusively in its capacity as Trustee pursuant to the
Agreement, to execute the Option Agreement with CENTRO DISTRIBUIDOR DE CEMENTO
S.A. DE C.V. "CEDICE" under the terms and conditions set forth in the definitive
version of the Option Agreement appended to the present document in Appendix
"1".
The Technical Committee hereby certifies under oath that the present Instruction
for the Execution of the Option Agreement is upheld in the Unanimous Resolutions
of the Technical Committee dated ______________________ 2003. A signed copy of
the minutes in which the aforementioned agreements are reported, duly signed by
the members of the Technical Committee who attended said meeting, is appended to
the present document in Appendix "2".
The Technical Committee
By: _______________________ By: _______________________
Name: Xx. Xxxxxxx Xxxxxxx, Engineer Name:
Function: Chairman of the Technical Committee Function: Alternate Member
25
Appendix "F"
Instruction for Payment
(Date)
Banco Nacional de Mexico, S.A.
Regional Fiduciario Norte
Xxxxxxx del Xxxxx No. 350 Ote.
Col. del Xxxxx X.X. 66220
San Xxxxx Xxxxx Xxxxxx, Nuevo Xxxx
Ref: Closed Investment Trust
No. 111174-2
For the attention of: Lic. Xxxxx Xxxx
Dear Sirs,
This Instruction for Payment is presented as stipulated in Subsection (a)3 of
Clause Four of the Closed Investment Trust Agreement concluded on February 27,
2003 (hereinafter the "Agreement") by Xx. Xxxxxxx Xxxxxxx Xxxxxxxx, Engineer, in
his capacity as Trustor-Trustee (as defined in the Agreement) and Banco Nacional
de Mexico, S.A., Banamex Financial Group, Trust Division, in its capacity as
Trustee (hereinafter the "Trustee"). Any terms with the first letter in upper
case in this document not expressly defined herein, shall be used as defined in
the Agreement.
By means of this document and as stipulated in Subsection (a)2 of Clause Four of
the Agreement, the Technical Committee hereby authorizes and instructs this
institution, acting exclusively in its capacity as Trustee pursuant to the
Agreement, to pay the Premium, i.e. the sum of [______(____________Pesos)] to
CEDICE for the acquisition of the Optional Securities Acquired under the terms
set forth in the Issue Notice, subject to the provision of the said quantity of
the Initial Contributions deposited in the Trust Account.
The Technical Committee hereby certifies under oath that the present Instruction
for Payment is upheld in the Unanimous Resolutions of the Technical Committee
dated ___________________________. A signed copy of the minutes in which the
aforementioned Unanimous Resolutions are reported, duly signed by all regular
members of the Technical Committee, is appended to the present document in
Appendix 1.
The Technical Committee
By: _______________________
Name: Xx. Xxxxxxx Xxxxxxx Xxxxxxxx, Engineer
Function: Chairman of the Technical Committee
26
Appendix "G"
Instruction for the Execution of the Brokerage Agreement
(Date)
Banco Nacional de Mexico, S.A.
Regional Fiduciario Norte
Xxxxxxx del Xxxxx No. 350 Ote.
Col. del Xxxxx X.X. 66220
San Xxxxx Xxxxx Xxxxxx, Nuevo Xxxx
Ref: Closed Investment Trust
No. 111174-2
For the attention of: Lic. Xxxxx Xxxx
Dear Sirs,
This Instruction for the Execution of the Brokerage Agreement is presented as
stipulated in Subsection (a)6 of Clause Four of the Closed Investment Trust
Agreement concluded on February 27, 2003 (hereinafter the "Agreement") by Xx.
Xxxxxxx Xxxxxxx Xxxxxxxx, Engineer, in his capacity as Trustor-Trustee (as
defined in the Agreement) and Banco Nacional de Mexico, S.A., Banamex Financial
Group, Trust Division, in its capacity as Trustee (hereinafter the "Trustee").
Any terms with the first letter in upper case in this document not expressly
defined herein, shall be used as defined in the Agreement.
By means of this document and as stipulated in Subsection (a)6 of Clause Four of
the Agreement, the Technical Committee hereby authorizes and instructs this
institution, acting exclusively in its capacity as Trustee pursuant to the
Agreement, to execute the Brokerage Agreement with the Market Intermediary (Name
of the Intermediary), under the terms and conditions set forth in the definitive
version of the Brokerage Agreement appended to the present document in Appendix
1.
The Technical Committee hereby certifies under oath that the present Instruction
for the Execution of the Brokerage Agreement is upheld in the agreements adopted
at the Technical Committee meeting dated ___________________________. A signed
copy of the minutes in which the aforementioned agreements are reported, duly
signed by all regular members of the Technical Committee, is appended to the
present document in Appendix 2.
The Technical Committee
By: _______________________
Name: Xx. Xxxxxxx Xxxxxxx Xxxxxxxx, Engineer
Function: Chairman of the Technical Committee
27
Appendix "H"
Settlement Notification
(Date)
Banco Nacional de Mexico, S.A.
Regional Fiduciario Norte
Xxxxxxx del Xxxxx No. 350 Ote.
Col. del Xxxxx X.X. 66220
San Xxxxx Xxxxx Xxxxxx, Nuevo Xxxx
Ref: Closed Investment Trust
No. 111174-2
For the attention of: Lic. Xxxxx Xxxx
Dear Sirs,
This Settlement Notification is presented as stipulated in Clause Six of the
Closed Investment Trust Agreement concluded on February 27, 2003 (hereinafter
the "Agreement") by Xx. Xxxxxxx Xxxxxxx Xxxxxxxx, Engineer, in his capacity as
Trustor-Trustee (as defined in the Agreement) and Banco Nacional de Mexico,
S.A., Banamex Financial Group, Trust Division, in its capacity as Trustee
(hereinafter the "Trustee"). Any terms with the first letter in upper case in
this document not expressly defined herein, shall be used as defined in the
Agreement.
By means of this document and as stipulated in Clause Six of the Agreement, the
Technical Committee hereby instructs this institution, acting exclusively in its
capacity as Trustee pursuant to the Agreement, to return and/or distribute the
Trust's Assets in favor of the Trustor-Trustee and/or the Affiliated
Trustors-Trustees, as set forth in the terms and proportions indicated in the
document appended to the present document in Appendix 1, and pursuant to the
Agreement.
The Technical Committee hereby certifies under oath that (i) each and every one
of the conditions required for the completion of the Agreement, as set forth in
Clause Five therein, has been totally met and fulfilled and (ii) the present
Liquidation Notification is upheld in the Unanimous Resolutions of the Technical
Committee dated ___________________________. A signed copy of the minutes in
which the aforementioned Unanimous Resolutions are reported, duly signed by all
regular members of the Technical Committee, is appended to the present document
in Appendix 2.
The Technical Committee
By: _______________________
Name: Xx. Xxxxxxx Xxxxxxx Xxxxxxxx, Engineer
Function: Chairman of the Technical Committee
28
Appendix "I"
List of Beneficiaries
List of Beneficiaries drawn up on _______________ 2003 by the Technical
Committee of the trust set up pursuant to the Closed Investment Trust Agreement
concluded on February 27, 2003 (hereinafter the "Agreement") by the individuals
identified as Trustors-Trustees (as defined in the Agreement) and by Banco
Nacional de Mexico, S.A., Banamex Financial Group, Trust Division, in its
capacity as Trustee (hereinafter the "Trustee").
-----------------------------------------------------------------------------------
Name of Trustor Name of Domicile, Phone and Percentage
Beneficiary(ies) Fax
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29
Appendix "J"
Instruction for Investment
Mexico, D.F., _______________________2003
BANCO NACIONAL DE MEXICO, S.A.
Member of the Banamex Financial Group
Trust Division
Bosque de Duraznos 75 - P.H.
Colonia Xxxxxxx xx xxx Xxxxx
X.X. 00000, Xxxxxx D.F.
Ref: Permanent Investment Instruction
Dear Sirs,
By means of this document and with reference to the Trust Agreement number
111174-2 dated February 27, 2003 (hereinafter the "Trust"), concluded with Banco
Nacional de Mexico, S.A., Member of the Banamex Financial Group, Trust Division
(hereinafter "Banamex"), we hereby provide Banamex with permanent authorization,
until such time as there are instructions to the contrary, when it does not
receive express written instructions to invest the liquid resources contained in
the fiduciary assets in terms of the Trust, to invest such resources in any of
the securities identified hereafter, on the understanding that (i) the maximum
timeframe for investments shall be seven days, (ii) the investments shall be
made in the currency in which the liquid resources are denominated, (iii) in all
the cases in which Banamex conducts transactions for investments we accept that
it shall use as counterpart the cash assets of Banco Nacional de Mexico, S.A.,
Member of the Banamex Financial Group (hereinafter the "Bank"), and (iv) Banamex
shall carry out the investments based on the securities and rates that are
available on the market at the time of the investment, in accordance with the
timeframes and amounts applicable and in accordance with the following order:
Mexican Pesos
1) Liabilities covered by the bank
2) Bank debt instruments (direct or in a repurchase agreement)
3) Securities covered by the Federal Government (direct or in a repurchase
agreement)
US Dollars
1) Liabilities covered by Banamex, Citigroup Inc. or any other of its
subsidiaries, denominated in US dollars.
Regards,
30
The Technical Committee
By: _______________________
Name: Xx. Xxxxxxx Xxxxxxx Xxxxxxxx, Engineer
Function: Chairman of the Technical Committee
Appendix "K"
Exercise Instruction
(Date)
Banco Nacional de Mexico, S.A.
Regional Fiduciario Norte
Xxxxxxx del Xxxxx No. 350 Ote.
Col. del Xxxxx X.X. 66220
San Xxxxx Xxxxx Xxxxxx, Nuevo Xxxx
Ref: Closed Investment Trust
No. 111174-2
For the attention of: Lic. Xxxxx Xxxx
Dear Sirs,
This Exercise Instruction is presented as stipulated in Subsection (b)6 of
Clause Eight of the Closed Investment Trust Agreement concluded on February 27,
2003 (hereinafter the "Agreement") by Xx. Xxxxxxx Xxxxxxx Xxxxxxxx, Engineer, in
his capacity as Trustor-Trustee (as defined in the Agreement) and Banco Nacional
de Mexico, S.A., Banamex Financial Group, Trust Division, in its capacity as
Trustee (hereinafter the "Trustee"). Any terms with the first letter in upper
case in this document not expressly defined herein, shall be used as defined in
the Agreement.
By means of this document, the Technical Committee hereby informs this
institution that, in its capacity as Trustee pursuant to the Agreement, it has
received [______] ([____________]) Exercise Notifications as set forth in
Subsection (a) of Clause Eleven of the Agreement.
By virtue of the above and as stipulated in Subsection (c) of Clause Eleven of
the Agreement, the Technical Committee hereby irrevocably instructs this
institution, in its capacity as Trustee pursuant to the Agreement, (i) to
exercise the Purchase Rights corresponding to CEDICE to acquire a total of
[_____] ([__________]) CPOs ("CPOs Acquired"), (ii) to receive the CPOs Acquired
in the Securities Account by means of the deposit made directly by CEDICE in the
Securities Account, (iii) to proceed as indicated in each Instruction for the
Delivery of CPOs and Instruction for the Sale of CPOs, as relevant, contained in
the Exercise Notifications appended to the present document in Appendix 1.
By means of this document, the Technical Committee expressly and irrevocably
instructs the Trustee to transfer the Relevant CPOs Acquired or income from the
sale of such CPOs, as relevant, in the proportions and in the account(s)
indicated in the document appended to the present document in Appendix 2.
The Technical Committee hereby agrees that the Trustee shall be obliged to
exercise the Purchase Rights stipulated in this document, pursuant to the terms
and conditions contained herein and set forth in the Option Agreement, however,
on the understanding that the Trustee alone shall be
31
obliged to fulfill the Exercise Instructions that contain an Instruction for the
Delivery of CPOs, to the extent that the respective Trustor-Trustee deposits the
Additional Contributions required in the Trust Account in order to cover the
corresponding Exercise Price, as well as any expenses, commissions and other
costs incurred in connection with the purchase and the deposit of the CPOs
Acquired, in the form and within the timeframe set forth in Subsection (b) of
Clause Eleven of the Agreement.
The Technical Committee hereby certifies under oath that the present Exercise
Instruction (i) is presented in the form and within the timeframe set forth in
Clause Eleven of the Agreement, and (ii) is upheld in the Unanimous Resolutions
of the Technical Committee dated ___________________________. A signed copy of
the minutes in which the aforementioned Unanimous Resolutions are reported, duly
signed by the members of the Technical Committee who attended the said meeting,
is appended to the present document in Appendix 3.
The Technical Committee
By: _______________________ By: _______________________
Name: Xx. Xxxxxxx Xxxxxxx, Engineer Name:
Function: Chairman of the Technical Committee Function: Alternate Member
By: _______________________
Name:
Function:
32
Appendix "L"
Technical Committee
The following list contains the personal details and sample signatures for each
of the regular and alternate members of the Technical Committee, as well as the
registered address for receiving written or oral notifications in relation to
the Closed Investment Trust Agreement concluded on February 27, 2003
(hereinafter the "Agreement"), by the individuals identified as
Trustors-Trustees (as defined in the Agreement), and Banco Nacional de Mexico,
S.A., Banamex Financial Group, Trust Division, in its capacity as Trustee
(hereinafter the "Trustee").
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Regular Members Function Signature
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Xx. Xxxxxxx Xxxxxxx Xxxxxxxx, Chairman
Engineer
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Secretary
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Member
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Alternate Members Signature
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The registered address for the Technical Committee for receiving any written or
oral notifications in relation to the Agreement is as follows:
Xx. Xxxxxxxxxxxx Xx. 000 Xxx.
Xxxxxx Xxxxxxxxx, Xxxxx Xxxx
Phone: (00) 0000-0000
Fax: (00) 0000-0000
The present document is signed today February 27, 2003 in accordance with
Subsection (c) of Clause Eight of the Agreement.
Regards,
The Technical Committee
By: __________________________
Name: Xx. Xxxxxxx Xxxxxxx Xxxxxxxx, Engineer
Function: Chairman of the Technical Committee
Appendix "M"
Exercise Notification
____________. [DATE]
Technical Committee
Xx. Xxxxxxxxxxxx # 000 Xxx.
Xxxxxx xx la Cuidad
64000 Monterrey, N.L.
For the attention of: Xx. Xxxxxxx Xxxxxxx M., Engineer
Dear Sirs,
The present Exercise Notification is presented as stipulated in Subsection (a)
of Clause Eleven of the Closed Investment Trust Agreement concluded on February
27, 2003 (hereinafter the "Agreement"), by Xx. Xxxxxxx Xxxxxxx Xxxxxxxx,
Engineer, in his capacity as Trustor-Trustee (as defined in the Agreement) and
Banco Nacional de Mexico, S.A., Banamex Financial Group, Trust Division, in its
capacity as Trustee (hereinafter the "Trustee"). Any terms with the first letter
in upper case in this document not expressly defined herein, shall be used as
defined in the Agreement.
By means of this document and as stipulated in Subsection (a) of Clause Eleven
of the Agreement, I the undersigned, in my capacity as Trustor-Trustee pursuant
to the Agreement, irrevocably instruct the Technical Committee to present the
Trustee with an Exercise Instruction (i) to exercise the Purchase Rights
corresponding to CEDICE to acquire a total of [___] ([_______]) CPOs ("CPOs
Acquired"), (ii) to receive the CPOs Acquired in the Securities Account by means
of the deposit made directly by CEDICE in the Securities Account, (iii) and to
proceed as indicated in the [Instruction for the Delivery of CPOs] or the
[Instruction for the Sale of CPOs], appended to the present document in Appendix
1.
I the undersigned hereby certify under oath that the present Exercise
Notification is presented in the form and within the timeframe set forth in
Clause Eleven of the Agreement.
The Trustor-Trustee
By: __________________________
Name: __________________________
Appendix "1" to the Exercise Notification
Instruction for the Sale of CPOs
[DATE]
Technical Committee
Xx. Xxxxxxxxxxxx # 000 Xxx.
Xxxxxx xx la Cuidad
64000 Monterrey, N.L.
For the attention of: Xx. Xxxxxxx Xxxxxxx M., Engineer
Dear Sirs,
The present Instruction for the Sale of CPOs given in Appendix 1 to the Exercise
Notification issued by the undersigned on this same date, is presented as
stipulated in Subsection (a)1 of Clause Eleven of the Agreement.
In accordance with the terms and conditions set forth in the Exercise
Notification, by virtue of which this Instruction for the Delivery of CPOs
instructions is appended, I the undersigned, in my capacity as Trustor-Trustee
pursuant to the Agreement:
(A) hereby undertake to deposit the sum of USD [_________].00 ([___________ ]
Dollars 00/100) in the Trust Account, as an additional Contribution for the
payment of the Exercise Price, corresponding to the CPOs Acquired, and to cover
any expenses, commissions and other costs incurred in connection with the
purchase and the deposit of the CPOs Acquired.
(B) irrevocably instruct the Technical Committee so that it may in turn instruct
the Trustee, through the respective Exercise Instruction, so that the Trustee,
subject to the terms and conditions set forth in Subsection (C) below, shall
transfer the aforementioned Acquired CPOs to the following account [include the
Trustor-Trustee account data]; and
(C) understand and agree with the fact that the Trustee shall be obliged to
exercise the Purchase Rights stipulated in the appended Exercise Notification
and in this document, only insofar as I the undersigned, in my aforementioned
capacity, deposit Additional Contributions in the Trust Account as described in
Subsection (A) above, and in accordance with the form and within the timeframe
set forth in Subsection (b) of Clause Eleven of the Agreement.
The Trustor-Trustee
By: __________________________
Name: __________________________
Appendix "1" to the Exercise Notification
Instruction for the Sale of CPOs
[DATE]
Technical Committee
Xx. Xxxxxxxxxxxx # 000 Xxx.
Xxxxxx xx la Cuidad
64000 Monterrey, N.L.
For the attention of: Xx. Xxxxxxx Xxxxxxx M., Engineer
Dear Sirs,
The present Instruction for the Sale of CPOs given in Appendix 1 to the Exercise
Notification issued by the undersigned on this same date, is presented as
stipulated in Paragraph (a)2 of Clause Eleven of the Agreement.
In accordance with the terms and conditions set forth in the Exercise
Notification, by virtue of which this Instruction for the Delivery of CPOs
instructions is appended, I the undersigned, in my capacity as Trustor-Trustee
pursuant to the Agreement:
(A) irrevocably instruct the Technical Committee so that it may in turn instruct
the Trustee, through the respective Exercise Instruction, (i) to sell the CPOs
acquired, and (ii) to allocate income from the sale of such Acquired CPOs in the
following order: first, to pay CEDICE the corresponding Exercise Price; second,
to cover any expenses, commissions and other costs incurred in connection with
the purchase and the deposit of the CPOs Acquired; and to deposit any surplus,
where relevant, in pesos (national currency) in the account of the undersigned
as indicated hereafter [include the Trustor-Trustee account data];
The Trustor-Trustee
By: __________________________
Name: __________________________
