Vitro Envases Norteamérica, S.A. de C.V. Purchase Agreement
EXHIBIT
4.22
Vitro
Envases Norteamérica, S.A. de C.V.
U.S.
$80,000,000
10.75%
Senior Secured Guaranteed Notes Due
2011
Purchase
Agreement
January
31, 2005
Credit
Suisse First Boston LLC
As
Representative of the Initial Purchasers
c/o
Credit Suisse First Boston LLC
Eleven
Xxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Ladies
and Gentlemen:
Vitro
Envases Norteamérica, S.A. de C.V., a corporation organized under the laws of
Mexico (the “Company”),
proposes to issue and sell to the several parties named in Schedule I hereto
(the “Initial
Purchasers”),
for
whom Credit Suisse First Boston LLC (the “Representative”)
is
acting as representative, U.S.$80,000,000 principal amount of its 10.75% Senior
Secured Guaranteed Notes Due 2011 (the “Securities”).
The
Securities will form a single series and be fully fungible with the Company’s
outstanding 10.75% Senior Secured Guaranteed Notes Due 2011 (CUSIP Nos.
92851Jaa3 and p98020AA1) issued on July 23, 2004 (the “Initial
Securities”),
subject to the terms and conditions set forth herein. The Securities are to
be
issued pursuant to Supplemental Indenture No.1 to be dated as of the Closing
Date (as defined below) (the “Supplemental
Indenture”)
to the
indenture dated July 23, 2004 (the “Original
Indenture”),
among
the Company, the Note Guarantors and The Bank of New York, as trustee (the
“Trustee”).
The
Original Indenture as supplemental by the Supplemental Indenture is herein
referred to as the “Indenture.” To the extent there are no additional parties
listed on Schedule I other than the Representative, the term Representative
as
used herein shall mean the Representative in its capacity as the Initial
Purchaser. The use of the neuter in this Agreement shall include the feminine
and masculine wherever appropriate. Certain terms used herein are defined in
Section 22 hereof.
The
sale
of the Securities to the Initial Purchasers will be made without registration
of
the Securities under the Act in reliance upon exemptions from the registration
requirements of the Act.
In
connection with the sale of the Securities, the Company has prepared a
preliminary offering circular, dated January 31, 2005 (as amended or
supplemented at the date thereof, including any and all exhibits thereto, and
any information incorporated by reference therein, the “Preliminary
Offering Circular”),
and a
final offering circular, dated January 31, 2005 (as amended or supplemented
at
the Execution Time, including any and all exhibits thereto and any information
incorporated by reference therein, the “Final
Offering Circular”).
Each
of
the
Preliminary Offering Circular and the Final Offering Circular sets forth certain
information concerning the Company and the Securities. The Company hereby
confirms that it has authorized the use of the Preliminary Offering Circular
and
the Final Offering Circular, and any amendment or supplement thereto, in
connection with the offer and sale of the Securities by the Initial Purchasers.
Unless stated to the contrary, any references herein to the terms “amend”,
“amendment” or “supplement” with respect to the Final Offering Circular shall be
deemed to refer to and include any information filed under the Exchange Act
subsequent to the Execution Time that is incorporated by reference therein.
1. Representations
and Warranties.
The
Company represents and warrants to each Initial Purchaser as set forth below
in
this Section 1.
(a) The
Preliminary Offering Circular, at the date thereof, did not contain any untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein, in the light of the circumstances under which
they
were made, not misleading. At the Execution Time and on the Closing Date, the
Final Offering Circular did not and will not (and any amendment or supplement
thereto, at the date thereof and at the Closing Date, will not) contain any
untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided,
however,
that
the Company makes no representation or warranty as to the information contained
in or omitted from the Preliminary Offering Circular or the Final Offering
Circular, or any amendment or supplement thereto, in reliance upon and in
conformity with information furnished in writing to the Company by or on behalf
of the Initial Purchasers through the Representative specifically for inclusion
therein.
(b) None
of
the Company, its Affiliates, or any person acting on its or their behalf (other
than the Initial Purchasers, as to which the Company makes no representation)
has, directly or indirectly, made offers or sales of any security, or solicited
offers to buy, any security under circumstances that would require the
registration of the Securities under the Act.
(c) None
of
the Company, its Affiliates, or any person acting on its or their behalf (other
than the Initial Purchasers, as to which the Company makes no representation)
has: (i) engaged in any form of general solicitation or general advertising
(within the meaning of Regulation D) in connection with any offer or sale of
the
Securities or (ii) engaged in any directed selling efforts (within the meaning
of Regulation S) with respect to the Securities; and each of the Company, its
Affiliates and each person acting on its or their behalf (other than the Initial
Purchasers, as to which the Company makes no representation) has complied with
the offering restrictions requirement of Regulation S.
(d) The
Securities satisfy the eligibility requirements of Rule 144A(d)(3) under the
Act.
(e) The
Company is a “foreign issuer” (as defined in Regulation S).
(f) The
Company has been advised by the NASD’s PORTAL Market that the Securities have
been designated PORTAL-eligible securities in accordance with the rules and
regulations of the NASD.
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(g) No
registration under the Act of the Securities is required for the offer and
sale
of the Securities to or by the Initial Purchasers in the manner contemplated
herein and in the Final Offering Circular.
(h) The
Company is not, and after giving effect to the offering and sale of the
Securities and the application of the proceeds thereof as described in the
Final
Offering Circular will not be, an “investment company” as defined in the
Investment Company Act, without taking account of any exemption arising out
of
the number of holders of the Company’s securities.
(i) The
Company has not paid or agreed to pay to any Person any compensation for
soliciting another to purchase the Securities (except as contemplated in this
Agreement).
(j) None
of
the Company, its Affiliates or any of its or their respective directors,
officers or controlling persons has taken, directly or indirectly, any action
designed to or that has constituted or that might reasonably be expected to
cause or result, under the Exchange Act or otherwise, in stabilization or
manipulation of the price of any security of the Company to facilitate the
sale
of the Securities to or by the Initial Purchasers.
(k) It
is not
necessary, in connection with the offer and issuance of the Securities in the
manner contemplated by the Final Offering Circular and this Agreement to qualify
the Indenture under the Trust Indenture Act.
(l) Annex
A
sets forth all of the subsidiaries of the Company (each a “Subsidiary”)
and
the Company’s equity interest in such entity. The Subsidiaries listed on Annex B
attached hereto are the only “significant subsidiaries” of the Company (as
defined in Rule 1-02 of the Regulation S-X under the Act). Each of the Company
and its Subsidiaries has been duly incorporated, is validly existing under
the
laws of the jurisdiction in which it was incorporated and, where applicable,
is
in good standing under the laws of the jurisdiction in which it is chartered
or
organized with full corporate power and authority to own or lease, as the case
may be, and to operate its properties and conduct its business as described
in
the Final Offering Circular, and is duly qualified to do business as a foreign
corporation and is in good standing under the laws of each jurisdiction that
requires such qualification, other than where the failure to be so qualified
or
in good standing would not have a material adverse effect on the Company and
its
Subsidiaries, taken as a whole.
(m)
Except
as otherwise set forth in the Final Offering Circular, (i) all the outstanding
shares of capital stock of each Subsidiary of the Company have been duly
authorized and validly issued and are fully paid and nonassessable, and (ii)
all
outstanding shares of capital stock of the Subsidiaries of the Company are
owned
by the Company either directly or through wholly owned Subsidiaries free and
clear of any security interest, claim, lien or encumbrance.
(n) The
statements in the Final Offering Circular under the headings “Certain Income Tax
Considerations”, “Description of the Notes”, “Business - Legal Proceedings”, and
“Business - Environmental Matters” fairly summarize the matters therein
described.
(o) This
Agreement has been duly authorized, executed and delivered by the Company;
each
of the Master Collateral and Intercreditor Agreement and the
other
Collateral Documents has
been
duly authorized, executed and delivered by each of the Company and any
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Grantor
Subsidiary which is a party thereto and, assuming due authorization, execution
and delivery by each of the parties thereto (other than the Company or any
Grantor Subsidiary) constitutes a legal, valid and binding instrument
enforceable against each of the Company and any Grantor Subsidiary which is
a
party thereto in accordance with its terms (subject, as to the enforcement
of
remedies, to applicable bankruptcy, reorganization, insolvency, moratorium
or
other laws affecting creditors’ rights generally from time to time in effect and
to general principles of equity); the Original Indenture has been duly
authorized, executed and delivered by the Company and each Note Guarantor and
constitutes a legal, valid, binding instrument enforceable against the Company
and each Note Guarantor in accordance with its terms (subject, as to the
enforcement of remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium or other laws affecting creditors’ rights generally from time to time
in effect and to general principles of equity); the Accession Agreement has
been
duly authorized by the Company and each of the Grantor Subsidiaries and,
assuming due authorization, execution and delivery thereof by each of the
parties thereto (other than the Company or any Grantor Subsidiary), when
executed and delivered by the Company and each Grantor Subsidiary, will
constitute a legal, valid and binding instrument enforceable against each of
the
Company and each Grantor Subsidiary which is a party thereto in accordance
with
its terms (subject, as to the enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting creditors’ rights
generally from time to time in effect and to general principles of equity);
the
Supplemental Indenture has been duly authorized by the Company and each Note
Guarantor and, assuming due authorization, execution and delivery thereof by
the
Trustee, when executed and delivered by the Company and each Note Guarantor,
will constitute a legal, valid, binding instrument enforceable against the
Company and each Note Guarantor in accordance with its terms (subject, as to
the
enforcement of remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium or other laws affecting creditors’ rights generally from time to time
in effect and to general principles of equity); and the Securities have been
duly authorized by the Company, and, when executed and authenticated in
accordance with the provisions of the Indenture and delivered to and paid for
by
the Initial Purchasers, will form a single series and be fully fungible with
the
Initial Securities, will have been duly executed and delivered by the Company
and will constitute the legal, valid and binding obligations of the Company
entitled to the benefits of the Indenture (subject, as to the enforcement of
remedies, to applicable bankruptcy, reorganization, insolvency, moratorium
or
other laws affecting creditors’ rights generally from time to time in effect and
to general principles of equity).
(p) Each
of
the Company and the Grantor Subsidiaries has all requisite corporate power
and
authority, and has taken all requisite corporate or other actions necessary
to
execute, deliver and perform its respective obligations under each of this
Agreement, the Collateral Documents, the Accession Agreement, the Original
Indenture, the Supplemental Indenture and the Securities to which it is a party.
No consent, approval, authorization, filing with or order of any court or
governmental agency or body is required in connection with the transactions
contemplated herein, in the Original Indenture, the Supplemental Indenture,
the
Collateral Documents and the Securities, except such as may be required under
(i) the blue sky laws of any jurisdiction in which the Securities are offered
and sold and (ii) the rules of the National Securities Registry (Registro
Nacional de Valores)
of the
National Securities and Banking Commission (Comisión
Xxxxxxxx Xxxxxxxx x xx Xxxxxxx).
0
(x) Xxxx
of
the execution and delivery of the Original Indenture, the Supplemental
Indenture, the Collateral Documents, the Accession Agreement, or this Agreement,
the issuance and sale of the Securities, or the consummation of any other of
the
transactions herein or therein contemplated, or the fulfillment of the terms
hereof or thereof has or, with respect to the Supplemental Indenture or the
Accession Agreement, will, conflict with, result in a breach or violation or
imposition of any lien, charge or encumbrance upon any property or assets of
the
Company or any of its Subsidiaries pursuant to, (i) the estatutos
sociales
or
comparable constituting documents of Vitro, S.A. de C.V., the Company or any
of
their Subsidiaries; (ii) the terms of any indenture, contract, lease, mortgage,
deed of trust, note agreement, loan agreement or other agreement, obligation,
condition, covenant or instrument (other than the Collateral Documents) to
which
Vitro, S.A. de C.V., the Company or any of their Subsidiaries is a party or
bound or to which its or their property is subject; or (iii) any statute, law,
rule, regulation, judgment, order or decree of any court, regulatory body,
administrative agency, governmental body, arbitrator or other authority having
jurisdiction over Vitro, S.A. de C.V., the Company or any of their Subsidiaries
or any of its or their properties.
(r) The
audited combined financial statements and schedules of the Company, Vitro
Packaging, Comegua and their respective consolidated subsidiaries, included
or
incorporated by reference in the Final Offering Circular fairly present their
combined financial condition, results of operations and cash flows as of the
dates and for the periods indicated, and have been prepared in conformity with
generally accepted accounting principles in Mexico applied on a consistent
basis
throughout the periods involved (except as otherwise noted therein); the
selected financial data set forth under the caption “Selected Combined Financial
Information” in the Final Offering Circular fairly present, on the basis stated
in the Final Offering Circular, the information included or incorporated by
reference therein.
(s) No
action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company or any of its
Subsidiaries or its or their property is pending or, to the best knowledge
of
the Company, threatened that (i) could reasonably be expected to have
a
material adverse effect on the performance of this Agreement, the Collateral
Documents, the Original Indenture, the Supplemental Indenture, or the
consummation of any of the transactions contemplated hereby or thereby or (ii)
could reasonably be expected to have a material adverse effect on the condition
(financial or otherwise), prospects, earnings, business or properties of the
Company and its Subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business (a “Material
Adverse Effect”),
except as set forth in or contemplated in the Final Offering Circular (exclusive
of any amendment or supplement thereto).
(t) On
and as
of the Closing Date, all representations made in the Collateral Documents
entered into on or prior to the Closing Date are true and correct and the
Company and the Grantor Subsidiaries are in compliance with all of their
respective covenants and obligations under the Collateral Documents entered
into
on or prior to the Closing Date, and the Securities will constitute Noteholder
Claims under the Master Collateral Agreement.
(u) Each
of
the Company and its Subsidiaries has good and marketable title in fee simple
to
all real property purported to be owned by it and owns all of its personal
property purported to be owned by it, in each case, free and clear of all liens,
encumbrances, claims and
5
defects
except (i) in the case of Collateral, Collateral Permitted Liens or as described
in the Final Offering Circular (exclusive of any amendment or supplement
thereto), (ii) liens
created in connection with the sale of accounts receivables under the Factoring
Agreement for the Purchase and Sale of Accounts Receivables dated as of August
4, 2000 (the “Transamerica
Facility”),
among
Transamerica Commercial Finance Corporation and certain Subsidiaries, as amended
and (iii)
in
the case of all other property of the Company or its Subsidiaries, any that
are
not material. The Collateral Permitted Liens do not and will not materially
and
adversely affect the value of the Collateral.
(v) Neither
the Company nor any of its Subsidiaries is in violation or default of (i) any
provision of its estatutos
sociales
or
comparable constituting documents; (ii) the terms of any indenture, contract,
lease, mortgage, deed of trust, note agreement, loan agreement or other
agreement, obligation, condition, covenant or instrument to which it is a party
or bound or to which its property is subject; or (iii) any statute, law, rule,
regulation, judgment, order or decree applicable to the Company or any of its
Subsidiaries of any court, regulatory body, administrative agency, governmental
body, arbitrator or other authority having jurisdiction over the Company or
such
subsidiary or any of its properties, as applicable, other than violations and
defaults with respect to clauses (ii) and (iii) which individually and in the
aggregate are not material to the Company and its Subsidiaries, taken as a
whole, or to the holders of the Securities.
(w) Deloitte Touche
Tohmatsu, who have certified the combined financial statements of the Company,
Vitro Packaging, Comegua and their respective consolidated subsidiaries and
delivered their report with respect to the audited combined financial statements
and schedules included or incorporated by reference in the Final Offering
Circular, are independent public accountants with respect to the Company and
the
Note Guarantors within the meaning of generally accepted accounting principles
in Mexico.
(x) There
are
no stamp or other issuance or transfer taxes or duties or other similar fees
or
charges required to be paid in connection with the execution and delivery of
this Agreement or the issuance or sale by the Company to the Initial Purchasers
of the Securities, other than any paid by the Company.
(y) Each
of
the Company and its Subsidiaries has filed all foreign, federal, state and
local
tax returns that are required to be filed or has requested extensions thereof
(except in any case in which the failure so to file would not have a Material
Adverse Effect and except as set forth in or contemplated in the Final Offering
Circular (exclusive of any amendment or supplement thereto)) and has paid all
taxes required to be paid by it and any other assessment, fine or penalty levied
against it, to the extent that any of the foregoing is due and payable, except
(i) for any such assessment, fine or penalty that is currently being contested
in good faith or as would not have a Material Adverse Effect and (ii) as set
forth in or contemplated in the Final Offering Circular (exclusive of any
amendment or supplement thereto).
(z) No
labor
problem or dispute with the employees of the Company or any of its Subsidiaries
exists or, to the knowledge of the Company, is threatened or imminent, and
the
Company is not aware of any existing or imminent labor disturbance by the
employees of any of its or its Subsidiaries’ principal suppliers, contractors or
customers, except as would not have a
6
Material
Adverse Effect or as set forth in or contemplated in the Final Offering Circular
(exclusive of any amendment or supplement thereto).
(aa) The
Company and each of its Subsidiaries are insured by insurers of recognized
financial responsibility against such losses and risks and in such amounts
as
are prudent and customary in the businesses in which they are engaged; all
policies of insurance and fidelity or surety bonds insuring the Company or
any
of its Subsidiaries or their respective businesses, assets, employees, officers
and directors are in full force and effect; the Company and its Subsidiaries
are
in compliance in all material respects with the terms of such policies and
instruments; there are no material claims by the Company or any of its
Subsidiaries under any such policy or instrument as to which any insurance
company is denying liability or defending under a reservation of rights clause;
neither the Company nor any of its Subsidiaries has been refused any insurance
coverage sought or applied for; and neither the Company nor any of its
Subsidiaries has any reason to believe that it will not be able to renew its
existing insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue its
business at a cost that would not have a Material Adverse Effect except as
set
forth in or contemplated in the Final Offering Circular (exclusive of any
amendment or supplement thereto).
(bb) No
subsidiary of the Company is currently prohibited or otherwise restricted,
directly or indirectly, from paying any dividends to the Company, from making
any other distribution on such subsidiary’s capital stock, from repaying to the
Company any loans or advances to such subsidiary from the Company, from paying
any fees or other amounts in account for services or from transferring any
of
such subsidiary’s property or assets to the Company or any other subsidiary of
the Company, except (i) under Section 10.2.1 of the Transamerica Facility,
and
(ii) as described in or contemplated in the Final Offering Circular (exclusive
of any amendment or supplement thereto).
(cc) The
Company and its Subsidiaries possess all licenses, certificates, permits and
other authorizations issued by the appropriate federal, state or foreign
regulatory authorities necessary to conduct their respective businesses, other
than such licenses, certificates, permits or other authorization the failure
of
which to possess would not have a Material Adverse Effect; neither the Company
nor any of its Subsidiaries has received any notice of proceedings relating
to
the revocation or modification of any such license, certificate, authorization
or permit which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would reasonably be expected to have a Material
Adverse Effect, except as set forth in or contemplated in the Final Offering
Circular (exclusive of any amendment or supplement thereto).
(dd) The
Company and each of its Subsidiaries maintain a system of internal accounting
controls sufficient to provide reasonable assurance that (i) transactions
are executed in accordance with management’s general or specific authorizations;
(ii) transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles in Mexico
and to maintain asset accountability; (iii) access to assets is permitted only
in accordance with management’s general or specific authorization; and (iv) the
recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
7
(ee) The
Company has no reason to believe that the statistical and market-related data
included in the Final Offering Circular are based on or derived from sources
that are not reliable and accurate in all material respects.
(ff) The
Company and its Subsidiaries (i) are in compliance with any and all applicable
Mexican and foreign, federal, state and local laws and regulations relating
to
the protection of human health and safety, the environment or hazardous or
toxic
substances or wastes, pollutants or contaminants (“Environmental
Laws”);
(ii)
have received and are in compliance with all permits, licenses or other
approvals required of them under applicable Environmental Laws to conduct their
respective businesses; and (iii) have not received notice of any actual or
potential liability under any Environmental Law, except, in the case of clauses
(i) through (iii), where such non-compliance with Environmental Laws, permits,
licenses or other approvals, failure to receive required permits, licenses
or
other approvals, or liability would not, individually or in the aggregate,
have
a Material Adverse Effect, except as set forth in or contemplated in the Final
Offering Circular (exclusive of any amendment or supplement thereto). Except
as
set forth in the Final Offering Circular, neither the Company nor any of its
Subsidiaries has been named as a “potentially responsible party” under the
Comprehensive Environmental Response, Compensation, and Liability Act of 1980,
as amended.
(gg) In
the
ordinary course of its business, the Company periodically reviews the effect
of
Environmental Laws on the business, operations and properties of the Company
and
its Subsidiaries, in the course of which it identifies and evaluates associated
costs and liabilities (including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or compliance with
Environmental Laws, or any permit, license or approval, any related constraints
on operating activities and any potential liabilities to third parties). On
the
basis of such review, the Company has reasonably concluded that such associated
costs and liabilities could not, singly or in the aggregate, reasonably be
expected to have a Material Adverse Effect, except as set forth in the Final
Offering Circular (exclusive of any amendment or supplement thereto).
(hh) None
of
the Company, its Subsidiaries or, to the knowledge of the Company, any director,
officer, agent, employee or Affiliate of the Company or any of its Subsidiaries
is aware of or has taken any action, directly or indirectly, that would result
in a violation by such persons of the Foreign Corrupt Practices Act of 1977,
as
amended, and the rules and regulations thereunder (the “FCPA”),
including, without limitation, making use of the mails or any means or
instrumentality of interstate commerce corruptly in furtherance of an offer,
payment, promise to pay or authorization of the payment of any money, or other
property, gift, promise to give, or authorization of the giving of anything
of
value to any “foreign official” (as such term is defined in the FCPA) or any
foreign political party or official thereof or any candidate for foreign
political office, in contravention of the FCPA; and the Company, its
Subsidiaries and, to the knowledge of the Company, its Affiliates have conducted
their businesses in compliance with the FCPA and have instituted and maintain
policies and procedures designed to ensure, and which are reasonably expected
to
continue to ensure, continued compliance therewith.
(ii) The
Company and its Subsidiaries own, possess, license or have other rights to
use
all patents, patent applications, trade and service marks, trade and service
xxxx
8
registrations,
trade names, copyrights, licenses, inventions, trade secrets, technology,
know-how and other intellectual property (collectively, the “Intellectual
Property”)
necessary for the conduct of the Company’s business as now conducted or as
proposed in the Final Offering Circular to be conducted, except where the
failure to own, possess, license or have other rights to use such Intellectual
Property would not reasonably be expected to have a Material Adverse Effect.
Except as set forth in the Final Offering Circular, there is no pending or,
to
the Company’s knowledge, threatened action, suit, proceeding or claim by others
challenging the validity or scope of any of the Intellectual Property, and
the
Company is unaware of any facts that would form a reasonable basis for any
such
claim. Except as set forth in the Final Offering Circular, there is no pending
or, to the Company’s knowledge, threatened action, suit, proceeding or claim by
others that the Company or any of its Subsidiaries infringes or otherwise
violates any patent, trademark, copyright, trade secret or other proprietary
rights of others, and the Company is unaware of any other fact that would form
a
reasonable basis for any such claim.
(jj) The
operations of the Company and its Subsidiaries are and have been conducted
at
all times in compliance with applicable financial recordkeeping and reporting
requirements of the Currency and Foreign Transactions Reporting Act of 1970,
as
amended, the money laundering statutes of all jurisdictions, the rules and
regulations thereunder and any related or similar rules, regulations or
guidelines, issued, administered or enforced by any governmental agency
(collectively, the “Money
Laundering Laws”)
and no
action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company or any of its
Subsidiaries with respect to the Money Laundering Laws is pending or, to the
best knowledge of the Company, threatened.
(kk) None
of
the Company, any of its Subsidiaries or, to the knowledge of the Company, any
director, officer, agent, employee or Affiliate of the Company or any of its
Subsidiaries is currently subject to any U.S. sanctions administered by the
Office of Foreign Assets Control of the U.S. Department of the Treasury
(“OFAC”);
and
the Company will not directly or indirectly use the proceeds of the offering
of
the Securities hereunder, or lend, contribute or otherwise make available such
proceeds to any subsidiary, joint venture partner or other person or entity,
for
the purpose of financing the activities of any person currently subject to
any
U.S. sanctions administered by OFAC.
(ll) There
have been no amendments to any of the documents listed in Annex C except as
set
forth in Annex C.
Any
certificate signed by any officer of the Company and delivered to the
Representative or counsel for the Initial Purchasers in connection with the
offering of the Securities shall be deemed a representation and warranty by
the
Company, as to matters covered thereby, to each Initial Purchaser.
2. Purchase
and Sale.
Subject
to the terms and conditions and in reliance upon the representations and
warranties herein set forth, the Company agrees to sell to each Initial
Purchaser, and each Initial Purchaser agrees, severally and not jointly, to
purchase from the Company, at a purchase price of 102.25% of the principal
amount thereof, plus accrued interest, if any, from and including January 23,
2005 to but excluding the Closing Date, the principal amount of Securities
set
forth opposite such Initial Purchaser’s name in Schedule I hereto.
9
3. Delivery
and Payment.
Delivery of and payment for the Securities shall be made at 10:00 A.M., New
York
City time, on February 7, 2005, or at such time on such later date not more
than
three Business Days after the foregoing date as the Representative shall
designate, which date and time may be postponed by agreement between the
Representative and the Company or as provided in Section 9 hereof (such date
and
time of delivery and payment for the Securities being herein called the
“Closing
Date”).
Delivery of the Securities shall be made to the Representative for the
respective accounts of the several Initial Purchasers against payment by the
several Initial Purchasers through the Representative of the purchase price
thereof to or upon the order of the Company by wire transfer payable in same-day
funds to the account specified by the Company. Delivery of the Securities shall
be made through the facilities of the Depository Trust Company unless
the Representative shall otherwise instruct. The Securities shall be assigned
the same CUSIP numbers as the Initial Securities.
4. Offering
by Initial Purchasers.
(a)
Each
Initial Purchaser acknowledges that the Securities have not been and will not
be
registered under the Act and may not be offered or sold within the United States
or to, or for the account or benefit of, U.S. persons, except
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Act.
(b) Each
Initial Purchaser, severally and not jointly, represents and warrants to and
agrees with the Company that:
(i) it
has
not offered or sold, and will not offer or sell, any Securities within the
United States or to, or for the account or benefit of, U.S. persons, (x) as
part
of their distribution at any time or (y) otherwise until 40 days after the
later
of the commencement of the offering and the date of closing of the offering
except:
| (A) |
to
those it reasonably believes to be “qualified institutional buyers” (as
defined in Rule 144A under the Act) or
|
| (B) |
in
accordance with Rule 903 of Regulation S;
|
(ii) neither
it nor any person acting on its behalf has made or will make offers or sales
of
the Securities in the United States by means of any form of general solicitation
or general advertising (within the meaning of Regulation D) in the United
States;
(iii) in
connection with each sale pursuant to Section 4(b)(i)(A), it has taken or will
take reasonable steps to ensure that the purchaser of such Securities is aware
that such sale is being made in reliance on Rule 144A;
(iv) neither
it, nor any of its Affiliates nor any person acting on its or their behalf
has
engaged or will engage in any directed selling efforts (within the meaning
of
Regulation S) with respect to the Securities;
(v) it
has
not entered and will not enter into any contractual arrangement with any
distributor (within the meaning of Regulation S) with respect to the
distribution of the Securities, except with its Affiliates or with the prior
written consent of the Company;
10
(vi) it
and
its Affiliates have complied and will comply with the offering restrictions
requirement of Regulation S;
(vii) at
or
prior to the confirmation of sale of Securities (other than a sale of Securities
pursuant to Section 4(b)(i)(A) of this Agreement), it shall have sent to each
distributor, dealer or person receiving a selling concession, fee or other
remuneration that purchases Securities from it during the distribution
compliance period (within the meaning of Regulation S) a confirmation
or
notice to substantially the following effect:
“The
Securities covered hereby have not been registered under the U.S. Securities
Act
of 1933 (the “Act”)
and
may not be offered or sold within the United States or to, or for the account
or
benefit of, U.S. persons (i) as part of their distribution at any time or (ii)
otherwise until 40 days after the later of the commencement of the offering
and
the date of closing of the offering, except in either case in accordance with
Regulation S or Rule 144A under the Act. Additional restrictions on the offer
and sale of the Securities are described in the offering memorandum for the
Securities. Terms
used in this paragraph have the meanings given to them by Regulation
S.”
(viii) it
has
not offered or sold and, prior to the date six months after the date of issuance
of the Securities, will not offer or sell any Securities to persons in the
United Kingdom except to persons whose ordinary activities involve them in
acquiring, holding, managing or disposing of investments (as principal or as
agent) for the purposes of their businesses or otherwise in circumstances which
have not resulted and will not result in an offer to the public in the United
Kingdom within the meaning of the Public Offers of Securities Regulations
1995;
(ix) it
has
only communicated or caused to be communicated and will only communicate or
cause to be communicated any invitation or inducement to engage in investment
activity (within the meaning of section 21 of the Financial Services and Markets
Act of 2000 (the “FSMA”))
received by it in connection with the issue or sale of any Securities, in
circumstances in which section 21(1) of the FSMA does not apply to the Company;
(x) it
is an
“accredited investor” (as defined in Rule 501(a) of Regulation D);
and
(xi) it
understands that no action has been or will be taken by the Company that would
permit a public offering or possession or distribution of the Preliminary
Offering Circular or the Final Offering Circular or any other offering or
publicity material relating to the Securities, in any country or jurisdiction
where action for that purpose is required.
5. Agreements.
The
Company agrees with each Initial Purchaser that:
(a) The
Company will furnish to each Initial Purchaser and to counsel for the Initial
Purchasers, without charge, during the period referred to in paragraph (c)
below, as many
11
copies
of
the Final Offering Circular and any amendments and supplements thereto as they
may reasonably request.
(b) The
Company will not amend or supplement the Final Offering Circular, without,
prior
to such amendment or supplement, furnishing to the Representative a copy of
such
proposed amendment or supplement for review, and the Company will not distribute
any such proposed amendment or supplement to which the Representative reasonably
objects.
(c) If
at any
time prior to the completion of the sale of the Securities by the Initial
Purchasers (as determined by the Initial Purchasers), any event occurs as a
result of which the Final Offering Circular, as then amended or supplemented,
would include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it should be
necessary to amend or supplement the Final Offering Circular to comply with
applicable law, the Company will promptly (i) notify the Representative of
any
such event; (ii) subject to the requirements of paragraph (b) of this
Section 5, prepare an amendment or supplement that will correct such statement
or omission or effect such compliance; and (iii) supply any supplemented or
amended Final Offering Circular to the several Initial Purchasers and counsel
for the Initial Purchasers without charge in such quantities as they may
reasonably request.
(d) The
Company will arrange, if necessary, for the qualification of the Securities
for
sale by the Initial Purchasers under the laws of such jurisdictions as the
Representative may designate (including Japan, the Netherlands and certain
provinces of Canada) and will maintain such qualifications in effect so long
as
required for the distribution of the Securities; provided
that in
no event shall the Company be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action that would
subject it to service of process in suits, other than those arising out of
the
offering or sale of the Securities, in any jurisdiction where it is not now
so
subject. The Company will promptly advise the Representative of the receipt
by
the Company of any notification with respect to the suspension of the
qualification of the Securities for sale in any jurisdiction or the initiation
or threatening of any proceeding for such purpose.
(e) During
the period of two years after the Closing Date, the Company will not, and will
not permit any of its Affiliates to, resell any Securities that constitute
“restricted securities” under Rule 144 of the Act that have been acquired by any
of them.
(f) None
of
the Company, its Affiliates, or any person acting on its or their behalf (other
than the Initial Purchasers) will, directly or indirectly, make offers or sales
of any security, or solicit offers to buy any security, under circumstances
that
would require the registration of the Securities under the Act.
(g) None
of
the Company, its Affiliates, or any person acting on its or their behalf (other
than the Initial Purchasers) will engage in any form of general solicitation
or
general advertising (within the meaning of Regulation D) in connection with
any
offer or sale of the Securities in the United States.
12
(h) So
long
as any of the Securities are “restricted securities” within the meaning of Rule
144(a)(3) under the Act, the Company will, during any period in which it is
not
subject to and in compliance with Section 13 or 15(d) of the Exchange Act or
it
is not exempt from such reporting requirements pursuant to and in compliance
with Rule 12g3-2(b) under the Exchange Act, provide to each holder of such
restricted securities and to each prospective purchaser (as designated by such
holder) of such restricted securities, upon the request of such holder or
prospective purchaser, any information required to be provided by Rule
144A(d)(4) under the Act. This covenant is intended to be for the benefit of
the
holders, and the prospective purchasers designated by such holders, from time
to
time of such restricted securities.
(i) None
of
the Company, its Affiliates, or any person acting on its or their behalf (other
than the Initial Purchasers) will engage in any directed selling efforts with
respect to the Securities.
Terms
used in this paragraph have the meanings given to them by Regulation
S.
(j) The
Company will cooperate with the Representative and use its reasonable best
efforts to permit the Securities to be eligible for clearance and settlement
through The Depository Trust Company.
(k) The
Company will not prior to the completion of the sale of the Securities by the
Representatives (as determined by the Representatives) offer, sell or contract
to sell, or otherwise dispose of (or enter into any transaction which is
designed to, or might reasonably be expected to, result in the disposition
(whether by actual disposition or effective economic disposition due to cash
settlement or otherwise) by the Company or any Affiliate of the Company or
any
person in privity with the Company or any Affiliate of the Company), directly
or
indirectly, or announce the offering of, any dollar-denominated, long-term
debt
securities issued or guaranteed by the Company in the international capital
markets (other than the Securities).
(l) Neither
the Company nor any of its Affiliates, or its or their officers, directors
or
controlling persons will take, directly or indirectly, any action designed
to or
which has constituted or which might reasonably be expected to cause or result,
under the Exchange Act or otherwise, in stabilization or manipulation of the
price of any security of the Company to facilitate the sale of the Securities
to
or by the Initial Purchasers.
(m) The
Company agrees to pay the costs and expenses relating to the following matters:
(i) the preparation of the Supplemental Indenture, the Collateral Documents,
the
Accession Agreement, the issuance of the Securities and the fees of the Trustee
and the Collateral and Intercreditor Agent; (ii) the preparation, printing
or
reproduction of the Preliminary Offering Circular and the Final Offering
Circular and each amendment or supplement to either of them; (iii) the printing
(or reproduction) and delivery (including postage, air freight charges and
charges for counting and packaging) of such copies of the Preliminary Offering
Circular and the Final Offering Circular, and all amendments or supplements
to
either of them, as may, in each case, be reasonably requested for use in
connection with the offering and sale of the Securities; (iv) the preparation,
printing, authentication, issuance and delivery of certificates for the
Securities; (v) any stamp or transfer taxes in connection with the original
issuance and sale of the Securities; (vi) the printing (or reproduction) and
delivery of this Agreement, any blue sky memorandum and all other agreements
or
documents printed (or
13
reproduced)
and delivered in connection with the offering of the Securities; (vii) any
registration or qualification of the Securities for offer and sale under the
securities or blue sky laws of the several states and any other jurisdictions
specified pursuant to Section 5(d) (including filing fees and the
reasonable fees and expenses of counsel for the Initial Purchasers relating
to
such registration and qualification); (viii) admitting the Securities for
trading in the PORTAL Market; (ix)
the
transportation and other expenses incurred by or on behalf of Company
representatives in connection with presentations to prospective purchasers
of
the Securities; (x) the fees and expenses of the Company’s accountants and the
fees and expenses of counsel (including local and special counsel) for the
Company; and (xi) all other costs and expenses incident to the performance
by
the Company of its obligations hereunder. The Company agrees to reimburse,
upon
request, the Representative, on behalf of the Initial Purchasers, for all their
reasonable and documented out-of-pocket expenses incurred in connection with
the
sale of the Securities provided for herein (including, without limitation,
fees,
disbursements and expenses of legal advisors for the Initial
Purchasers.)
(n) The
Company will, for a period of twelve months following the Execution Time,
furnish to the Representative such information concerning the business and
financial condition of the Company and its Subsidiaries as the Representative
may from time to time reasonably request (such statements to be on a
consolidated basis to the extent the accounts of the Company and its
Subsidiaries are consolidated in reports furnished to
stockholders).
(o) The
Company will not take any action or omit to take any action (such as issuing
any
press release relating to any Securities without an appropriate legend) which
may result in the loss by any of the Initial Purchasers of the ability to rely
on any stabilization safe harbor provided by the Financial Services Authority
under the FSMA.
(p) The
Company will apply the aggregate proceeds from the offering of the Securities
in
the manner specified in the Final Offering Circular under the heading “Use of
Proceeds”.
(q) The
Company will pay all applicable recording taxes, fees, charges, cost and
expenses required for the recording of the Collateral Documents on a timely
basis.
6. Conditions
to the Obligations of the Initial Purchasers.
The
obligations of the Initial Purchasers to purchase the Securities shall be
subject to the accuracy of the representations and warranties of the Company
contained herein at the Execution Time and the Closing Date, to the accuracy
of
the statements of the Company made in any certificates pursuant to the
provisions hereof, to the performance by the Company of its obligations
hereunder required to be performed at or prior to the Closing Date and to the
following additional conditions:
(a) The
Company shall have requested and caused Lic. Xxxxxxxxx Xxxxxx, the Company’s
in-house counsel, to furnish to the Representative his opinion, dated the
Closing Date and addressed to the Representative, in substantially the form
set
forth in Exhibit A hereto.
(b) The
Company shall have requested and caused Xxxx Xxxxx, Xxxxxxx Xxxxxx, Xxxxxxxx y
Xxxxx S.C., the Company’s Mexican counsel, to furnish to the Representative its
14
opinion,
dated the Closing Date and addressed to the Representative, in substantially
the
form set forth in Exhibit B hereto.
(c) The
Company shall have requested and caused Cravath, Swaine & Xxxxx LLP, the
Company’s U.S. counsel, to furnish to the Representative its opinion, dated the
Closing Date and addressed to the Representative, in substantially the form
set
forth in Exhibit C-1 and Exhibit C-2 hereto.
(d) The
Company shall have requested and caused Jalife, Caballero, Xxxxxxx y Asociados,
S.C., the Company’s Mexican intellectual property counsel, to furnish to the
Representative its reliance letter dated the Closing Date and addressed to
the
Representative, in substantially the form set forth in Exhibit D hereto,
authorizing the Initial Purchasers to rely on its opinion to Citigroup dated
July 23, 2004 as if it were dated the Closing Date and addressed to the Initial
Purchasers.
(e) The
Company shall have requested and caused MacMillan, Xxxxxxxx & Xxxx, LLC, the
Company’s Ohio counsel, to furnish to the Representative a reliance letter dated
the Closing Date and addressed to the Representative, in substantially the
form
set forth in Exhibit E hereto, authorizing the Initial Purchasers to rely on
its
opinion to Citigroup dated July 23, 2004 as if it were dated the Closing Date
and addressed to the Initial Purchasers.
(f) The
Company shall have requested and caused Xxxxxxxx, Xxx & Xxxxxx, LLP, the
Company’s federal patent counsel, to furnish to the Representative a reliance
letter dated the Closing Date and addressed to the Representative, in
substantially the form set forth in Exhibit F hereto, authorizing the Initial
Purchasers to rely on its opinion to Citigroup dated July 23, 2004 as if it
were
dated the Closing Date and addressed to the Initial Purchasers.
(g) The
Company shall have requested and caused De Obaldia & Xxxxxx xx Xxxxxxx, the
Company’s Panamanian counsel, to furnish to the Representative a reliance letter
dated the Closing Date and addressed to the Representative, in substantially
the
form set forth in Exhibit G hereto, authorizing the Initial Purchasers to rely
on (i) its opinion to Citigroup dated July 23, 2004 and (ii) its opinion to
the
Collateral and Intercreditor Agent dated December 20, 2004, in each case as
if
such opinions were dated the Closing Date and addressed to the Initial
Purchasers.
(h) The
Company shall have requested and caused Xxxxxxxx, Xxxxxx & Finger, P.A., the
Company’s special Delaware counsel, to furnish to the Representative its opinion
dated the Closing Date and addressed to the Representative, in substantially
the
form set forth in Exhibit H hereto.
(i) The
Company shall have requested and caused Xxxxx
Xxxxxxxxxxxx,
the
Company’s special Switzerland counsel, to furnish to the Representative its
opinion dated the Closing Date and addressed to the Representative, in
substantially the form set forth in Exhibit I hereto.
(j) The
Representative shall have received from Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP
and Xxxxxx & Xxxxx, S.C., counsel for the Initial Purchasers, such opinion
or opinions, dated the Closing Date and addressed to the Representative, with
respect to the
15
issuance
and sale of the Securities, the Indenture, the Supplemental Indenture, the
Collateral Documents, the Final Offering Circular (as amended or supplemented
at
the Closing Date) and other related matters as the Representative may reasonably
require, and the Company shall have furnished to such counsel such documents
as
they request for the purpose of enabling them to pass upon such
matters.
(k) The
Company shall have furnished to the Representative a certificate of the Company,
signed by (x) the Chairman of the Board, the Chief Executive Officer or the
President and (y) the principal financial or accounting officer of the Company,
dated the Closing Date, to the effect that the signers of such certificate
have
carefully examined the Final Offering Circular, any amendment or supplement
to
the Final Offering Circular and this Agreement and that:
(i) the
representations and warranties of the Company in this Agreement are true and
correct on and as of the Closing Date with the same effect as if made on the
Closing Date, and the Company has complied with all the agreements and satisfied
all the conditions on its part to be performed or satisfied hereunder at or
prior to the Closing Date; and
(ii) since
the
date of the most recent financial statements included or incorporated by
reference in the Final Offering Circular (exclusive of any amendment or
supplement thereto), there has been no material adverse change in the condition
(financial or otherwise), prospects, earnings, business or properties of the
Company and its Subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth in or
contemplated in the Final Offering Circular (exclusive of any amendment or
supplement thereto).
(l) At
the
Execution Time and at the Closing Date, the Company shall have requested and
caused Deloitte Touche Tohmatsu to furnish to the Representative letters, dated
respectively as of the Execution Time and as of the Closing Date, in form and
substance satisfactory to the Representative, confirming that they are
independent accountants within the meaning of the requirements of auditing
standards generally accepted in Mexico and stating in effect that:
(i) in
their
opinion the audited financial statements included in the Final Offering Circular
and reported on by them comply as to form with generally accepted accounting
principles in Mexico.
(ii) on
the
basis of a reading of the latest unaudited financial statements made available
by the Company, Vitro Packaging, Comegua and their respective consolidated
Subsidiaries, their limited review in accordance with the standards established
under Statement on Auditing Standards No. 100 of the unaudited interim financial
information for the nine-month periods ended September 30, 2003 and 2004, and
at
September 30, 2003 and 2004; carrying out certain specified procedures (but
not
an examination in accordance with generally accepted auditing standards) which
would not necessarily reveal matters of
16
significance
with respect to the comments set forth in such letter; a reading of the minutes
of the meetings of the shareholders and directors of the Company, Vitro
Packaging, Comegua and their respective consolidated Subsidiaries and the audit
committee of Vitro, S.A. de C.V.; and inquiries of certain officials of the
Company who have responsibility for financial and accounting matters of the
Company, Vitro Packaging, Comegua and their respective consolidated Subsidiaries
as to transactions and events subsequent to December 31, 2003, nothing
came
to their attention which caused them to believe that:
| (A) |
any
unaudited financial information included in the Final Offering Circular
is
not in conformity with generally accepted accounting principles in
Mexico
applied on a basis substantially consistent with that of the audited
financial statements included in the Final Offering Circular;
or
|
| (B) |
with
respect to the period subsequent to September 30, 2004, there were
any
changes, at a specified date not more than five days prior to the
date of
the letter, in the combined long-term or short-term debt of the Company,
Vitro Packaging, Comegua and their respective Subsidiaries or combined
capital stock of the Company, Vitro Packaging and Comegua, or decreases
in
the combined stockholders’ equity of the Company, Vitro Packaging and
Comegua, or changes in the combined working capital of the Company,
Vitro
Packaging, Comegua and their respective Subsidiaries as compared
with the
amounts shown on the September 30, 2004 consolidated balance sheet
included or incorporated by reference in the Final Offering Circular,
or
for the period from October 1, 2004 to such specified date there
were any
decreases, as compared with the corresponding period in the previous
year
in revenues, operating income or income before income taxes or in
net
income of the Company, Vitro Packaging, Comegua and their respective
Subsidiaries, except in all instances for changes or decreases set
forth
in such letter or set forth in the Final Offering Circular, in which
case
the letter shall be accompanied by an explanation by the Company
as to the
significance thereof unless said explanation is not deemed necessary
by
the Representative.
|
(iii) they
have
performed certain other specified procedures as a result of which they
determined that certain information of an accounting, financial or statistical
nature (which is limited to accounting, financial or statistical information
derived from the general accounting records of the Company, Vitro
17
Packaging,
Comegua, and their respective Subsidiaries) set forth in the Final Offering
Circular, including the information set forth under the captions “Summary” and
“Selected Combined Financial Information” and the
information included under the caption “Management’s Discussion and Analysis of
Financial Condition and Results of Operations” included in the Final Offering
Circular agrees
with the accounting records of the Company, Vitro Packaging, Comegua, and their
respective Subsidiaries, excluding any questions of legal interpretation.
The
Company shall have received from Deloitte Touche Tohmatsu (and furnished to
the
Representative) a report with respect to a review of unaudited interim financial
information of the Company in accordance with Statement on Auditing Standards
No. 100.
All
references in this Section 6(l) to the Final Offering Circular include any
amendment or supplement thereto at the date of the applicable
letter.
(m) On
the
Closing Date, the Indenture shall be in full force and effect.
(n) On
the
Closing Date, the Company shall have delivered to the Representative the
following documents relating to the Collateral:
(i) The
Collateral Documents, duly authorized, executed and delivered by each of the
Company and any Grantor Subsidiary which is a party thereto and applicable
third
parties, and such documents or copies thereof as are required to be delivered
pursuant to Section 7.1 of the Master Collateral Agreement in connection with
the issuance of the Securities, in form and substance reasonably satisfactory
to
the Representative;
(ii) Copies
of
UCC financing statements in favor of the Collateral and Intercreditor Agent
filed with the Delaware Secretary of State with respect to the Collateral as
defined in the Vitro Packaging Security Agreement, and such other documents
under applicable law in each jurisdiction as may be necessary or appropriate
to
perfect the liens created by the Collateral Documents;
(iii) Evidence
of the registration of the Non-Possessory Pledge Agreements with the Public
Registry of Commerce and evidence of the registration of mortgages required
to
be registered at the Public Registry of Property pursuant to the Master
Collateral and Intercreditor Agreement;
(iv) Such
other certificates, opinions, documents and instruments relating to the
Collateral as may have been reasonably requested by the Representative; and
(v) The
executed Agency Agreements.
(o) Subsequent
to the Execution Time or, if earlier, the dates as of which information is
given
in the Final Offering Circular (exclusive of any amendment or supplement
thereto) but at or prior to the Closing Date, there shall not have been (i)
any
change or decrease specified in the letter or letters referred to in paragraph
(k)(ii)(B) of this Section 6; or (ii) any
18
change,
or any development involving a prospective change, in or affecting the condition
(financial or otherwise), prospects, earnings, business or properties of the
Company and its Subsidiaries taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth in or
contemplated in the Final Offering Circular (exclusive of any amendment or
supplement thereto), the effect of which, in any case referred to in clause
(i)
or (ii) above, is, in the sole judgment of the Representative, so material
and
adverse as to make it impractical or inadvisable to proceed with the offering
or
delivery of the Securities as contemplated in the Final Offering Circular
(exclusive of any amendment or supplement thereto).
(p) As
of the
Closing Date, the Securities shall have been designated as PORTAL-eligible
securities in accordance with the rules and regulations of the NASD and
the
Securities shall be eligible for clearance and settlement through The Depository
Trust Company.
(q) Subsequent
to the Execution Time but at or prior to the Closing Date, there shall not
have
been any decrease in the rating of any of the Company’s debt securities by any
“nationally recognized statistical rating organization” (as defined for purposes
of Rule 436(g) under the Act) or any notice given of any intended or potential
decrease in any such rating or of a possible change in any such rating that
does
not indicate the direction of the possible change.
(r) At
or
prior to the Closing Date, the Company shall have received from GE Commercial
Distribution Finance Corporation (“GECDF”)
a
written waiver in form and substance reasonably satisfactory to the
Representative of any and all defaults under the Factoring Agreement for the
Purchase and Sale of Accounts Receivable dated as of August 4, 2000, as amended,
among GECDF and the other parties thereto which may have occurred or been
committed prior to the date of such waiver.
(s) At
or
prior to the Closing Date, the Company shall have furnished to the
Representative such further information, certificates and documents as the
Representative may reasonably request.
If
any of
the conditions specified in this Section 6 shall not have been fulfilled when
and as provided in this Agreement, or if any of the opinions and certificates
mentioned above or elsewhere in this Agreement shall not be reasonably
satisfactory in form and substance to the Representative and counsel for the
Initial Purchasers, this Agreement and all obligations of the Initial Purchasers
hereunder may be cancelled at, or at any time prior to, the Closing Date by
the
Representative. Notice of such cancellation shall be given to the Company in
writing or by telephone or facsimile confirmed in writing.
The
documents required to be delivered by this Section 6 will be delivered at the
office of U.S. counsel for the Initial Purchasers, at Xxx
Xxxxxxx Xxxxx, Xxx Xxxx, XX 00000
on the
Closing Date.
7. Reimbursement
of Expenses.
If the
sale of the Securities provided for herein is not consummated because any
condition to the obligations of the Initial Purchasers set forth in Section
6
hereof is not satisfied, because of any termination pursuant to Section 10
hereof or because of any refusal, inability or failure on the part of the
Company to perform any agreement
19
herein
or
comply with any provision hereof other than by reason of a default by any of
the
Initial Purchasers, the Company will reimburse the Initial Purchasers severally
through the Representative on demand for all reasonable and documented
out-of-pocket expenses (including reasonable fees and disbursements of counsel)
that shall have been incurred by them in connection with the proposed purchase
and sale of the Securities.
8. Indemnification
and Contribution.
(a)
The
Company agrees to indemnify and hold harmless each Initial Purchaser, the
directors, officers, employees, Affiliates and agents of each Initial Purchaser
and each person who controls any Initial Purchaser within the meaning of either
the Act or the Exchange Act against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become subject
under the Act, the Exchange Act or other U.S. federal or state statutory law
or
regulation, at common law or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact contained
in
the Preliminary Offering Circular, the Final Offering Circular or in any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and agrees to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided,
however,
that
the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
in
the Preliminary Offering Circular, the Final Offering Circular, or in any
amendment thereof or supplement thereto, in reliance upon and in conformity
with
written information furnished to the Company by or on behalf of any Initial
Purchaser through the Representative specifically for inclusion therein. This
indemnity agreement will be in addition to any liability that the Company may
otherwise have.
(b) Each
Initial Purchaser severally, and not jointly, agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers, and each
person who controls the Company within the meaning of either the Act or the
Exchange Act, to the same extent as the foregoing indemnity from the Company
to
each Initial Purchaser, but only with reference to written information relating
to such Initial Purchaser furnished to the Company by or on behalf of such
Initial Purchaser through the Representative specifically for inclusion in
the
Preliminary Offering Circular, the Final Offering Circular or in any amendment
or supplement thereto. This indemnity agreement will be in addition to any
liability that any Initial Purchaser may otherwise have. The Company
acknowledges that (i) the statements set forth in the sixth paragraph
of
the cover page regarding delivery of the Securities and (ii), under the heading
“Plan of Distribution”, (A) the third paragraph related to the terms of the
offering by the Initial Purchasers, (B) the second sentence of the tenth
paragraph related to market making by the Initial Purchasers, and (C) the
eleventh paragraph related to over-allotment, stabilization, and syndicate
covering transactions in the Preliminary Offering Circular and the Final
Offering Circular constitute the only information furnished in writing by or
on
behalf of the Initial Purchasers for inclusion in the Preliminary Offering
Circular, the Final Offering Circular or in any amendment or supplement
thereto.
20
(c) Promptly
after receipt by an indemnified party under this Section 8 of notice of the
commencement of any action, such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under this Section 8,
notify the indemnifying party in writing of the commencement thereof; but the
failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did
not
otherwise learn of such action and such failure results in the forfeiture by
the
indemnifying party of substantial rights and defenses and (ii) will not, in
any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a) or
(b)
above. The indemnifying party shall be entitled to appoint counsel (including
local counsel) of the indemnifying party’s choice at the indemnifying party’s
expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel,
other than local counsel if not appointed by the indemnifying party, retained
by
the indemnified party or parties except as set forth below); provided,
however,
that
such counsel shall be satisfactory to the indemnified party. Notwithstanding
the
indemnifying party’s election to appoint counsel (including local counsel) to
represent the indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of such
separate counsel if (i) the use of counsel chosen by the indemnifying party
to
represent the indemnified party would present such counsel with a conflict
of
interest; (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties that are different
from or additional to those available to the indemnifying party; (iii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the institution of such action; or (iv) the indemnifying party
shall authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party. An indemnifying party will not, without the prior
written consent of the indemnified parties, settle or compromise or consent
to
the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are actual
or
potential parties to such claim or action) unless such settlement, compromise
or
consent includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding.
(d) In
the
event that the indemnity provided in paragraph (a) or (b) of this Section 8
is
unavailable to or insufficient to hold harmless an indemnified party for any
reason, the Company and the Initial Purchasers severally agree to contribute
to
the aggregate losses, claims, damages and liabilities, including legal or other
expenses reasonably incurred in connection with investigating or defending
any
loss, claim, damage, liability or action (collectively “Losses”)
to
which the Company and one or more of the Initial Purchasers may be subject
in
such proportion as is appropriate to reflect the relative benefits received
by
the Company on the one hand and by the Initial Purchasers on the other from
the
offering of the Securities; provided,
however,
that in
no case shall any Initial Purchaser be responsible for any amount in excess
of
the purchase discount or commission applicable to the Securities purchased
by
such Initial Purchaser hereunder. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the Company and the Initial
Purchasers severally shall contribute in such proportion as is appropriate
to
reflect not only such relative benefits but also the relative fault of the
21
Company
on the one hand and the Initial Purchasers on the other in connection with
the
statements or omissions that resulted in such Losses, as well as any other
relevant equitable considerations. Benefits received by the Company shall be
deemed to be equal to the total net proceeds from the offering (before deducting
expenses) received by it, and benefits received by the Initial Purchasers shall
be deemed to be equal to the total purchase discounts and commissions. Relative
fault shall be determined by reference to, among other things, whether any
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information provided by the Company
on the one hand or the Initial Purchasers on the other, the intent of the
parties and their relative knowledge, access to information and opportunity
to
correct or prevent such untrue statement or omission. The Company and the
Initial Purchasers agree that it would not be just and equitable if contribution
were determined by pro rata allocation or any other method of allocation that
does not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (d), no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 8, each person who
controls an Initial Purchaser within the meaning of either the Act or the
Exchange Act and each director, officer, employee, Affiliate and agent of an
Initial Purchaser shall have the same rights to contribution as such Initial
Purchaser, and each person who controls the Company within the meaning of either
the Act or the Exchange Act and each officer and director of the Company shall
have the same rights to contribution as the Company, subject in each case to
the
applicable terms and conditions of this paragraph (d).
9. Default
by an Initial Purchaser.
If any
one or more Initial Purchasers shall fail to purchase and pay for any of the
Securities agreed to be purchased by such Initial Purchaser hereunder and such
failure to purchase shall constitute a default in the performance of its or
their obligations under this Agreement, the remaining Initial Purchasers shall
be obligated severally to take up and pay for (in the respective proportions
which the principal amount of Securities set forth opposite their names in
Schedule I hereto bears to the aggregate principal amount of Securities set
forth opposite the names of all the remaining Initial Purchasers) the Securities
which the defaulting Initial Purchaser or Initial Purchasers agreed but failed
to purchase; provided,
however,
that in
the event that the aggregate principal amount of Securities which the defaulting
Initial Purchaser or Initial Purchasers agreed but failed to purchase shall
exceed 10% of the aggregate principal amount of Securities set forth in Schedule
I hereto, the remaining Initial Purchasers shall have the right to purchase
all,
but shall not be under any obligation to purchase any, of the Securities, and
if
such nondefaulting Initial Purchasers do not purchase all the Securities, this
Agreement will terminate without liability to any nondefaulting Initial
Purchaser or the Company. In the event of a default by any Initial Purchaser
as
set forth in this Section 9, the Closing Date shall be postponed for such
period, not exceeding five Business Days, as the Representative shall determine
in order that the required changes in the Final Offering Circular or in any
other documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Initial Purchaser of its liability,
if
any, to the Company or any nondefaulting Initial Purchaser for damages
occasioned by its default hereunder.
10. Termination.
This
Agreement shall be subject to termination in the absolute discretion of the
Representative, by notice given to the Company prior to delivery of and
22
payment
for the Securities, if at any time prior to such time (i) trading in securities
generally on the New York Stock Exchange or the Mexican Stock Exchange shall
have been suspended or limited or minimum prices shall have been established
on
either of such exchanges; (ii) a banking moratorium shall have been declared
either by U.S. federal or New York State authorities; or (iii) there shall
have
occurred any outbreak or escalation of hostilities, declaration by the United
States of a national emergency or war or other calamity or crisis the effect
of
which on financial markets is such as to make it, in the sole judgment of the
Representative, impractical or inadvisable to proceed with the offering or
delivery of the Securities as contemplated in the Final Offering Circular
(exclusive of any amendment or supplement thereto).
11. Representations
and Indemnities to Survive.
The
respective agreements, representations, warranties, indemnities and other
statements of the Company or its officers and of the Initial Purchasers set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf of the Initial
Purchasers or the Company or any of the indemnified persons referred to in
Section 8 hereof, and will survive delivery of and payment for the Securities.
The provisions of Sections 7 and 8 hereof shall survive the termination or
cancellation of this Agreement.
12. Notices.
All
communications hereunder will be in writing and effective only on receipt,
and,
if sent to the Representative, will be mailed, delivered or telefaxed to Credit
Suisse First Boston LLC, Eleven Madison Avenue, New York, N.Y. 10010-3629,
Attention: Transactions Advisory Group (fax no.: (000) 000-0000)
and
confirmed to Credit Suisse First Boston LLC, Eleven Madison Avenue,
New York, N.Y. 10010-3629, Attention: Transactions Advisory
Group; or, if sent to the Company, will be mailed, delivered or telefaxed to
+
00 (000) 000-0000 and
confirmed to it at Xx. Xxxxxxx Xxxxxxx 000, Xxx. Xxxxx xxx Xxxxxxxxx, 00000
San
Xxxxx
Xxxxx Xxxxxx,
X.X.
Mexico, Attention: Departamento Jurídico.
13. Successors.
This
Agreement will inure to the benefit of and be binding upon the parties hereto
and their respective successors and the indemnified persons referred to in
Section 8 hereof and their respective successors, and, except as expressly
set
forth in Section 5(h) hereof, no other person will have any right or obligation
hereunder.
14. Jurisdiction.
The
Company and each of the Initial Purchasers agrees that any suit, action or
proceeding against any party hereto brought by any other party hereto, the
directors, officers, employees and agents of any such other party hereto, or
by
any person who controls any such other party hereto, arising out of or based
upon this Agreement or the transactions contemplated hereby may be instituted
in
any State or U.S. federal court in The City of New York and County of New York,
and waives any objection which it may now or hereafter have to the laying of
venue of any such proceeding, and irrevocably submits to the jurisdiction of
such courts in any suit, action or proceeding. The Company hereby appoints
CT
Corporation System, located at 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
as
its authorized agent (the “Authorized
Agent”)
upon
whom process may be served in any suit, action or proceeding arising out of
or
based upon this Agreement or the transactions contemplated herein that may
be
instituted in any State or U.S. federal court in The City of New York and County
of New York, by any Initial Purchaser, the directors, officers, employees,
Affiliates and agents of any Initial Purchaser, or by any person who controls
any Initial Purchaser, and expressly accepts the
23
jurisdiction
of any such court in respect of any such suit, action or proceeding. The Company
hereby represents and warrants that the Authorized Agent has accepted such
appointment and has agreed to act as said agent for service of process, and
the
Company agrees to take any and all action, including the filing of any and
all
documents that may be necessary to continue such appointment in full force
and
effect as aforesaid. Service of process upon the Authorized Agent shall be
deemed, in every respect, effective service of process upon the Company.
Notwithstanding the foregoing, any action arising out of or based upon this
Agreement may be instituted by any party, the directors, officers, employees,
Affiliates and agents of any party, or by any person who controls any party,
in
any court of competent jurisdiction in Mexico. The
parties hereto each hereby waive any right to trial by jury in any action,
proceeding or counterclaim arising out of or relating to this
Agreement.
15. Applicable
Law.
This
Agreement will be governed by and construed in accordance with the laws of
the
State of New York applicable to contracts made and to be performed within the
State of New York.
16. Currency.
Each
reference in this Agreement to U.S. dollars (the “relevant
currency”),
including by use of the symbol “$”, is of the essence. To the fullest extent
permitted by law, the obligation of the Company in respect of any amount due
under this Agreement will, notwithstanding any payment in any other currency
(whether pursuant to a judgment or otherwise), be discharged only to the extent
of the amount in the relevant currency that the party entitled to receive such
payment may, in accordance with its normal procedures, purchase with the sum
paid in such other currency (after any premium and costs of exchange) on the
Business Day immediately following the day on which such party receives such
payment. If the amount in the relevant currency that may be so purchased for
any
reason falls short of the amount originally due, the Company will pay such
additional amounts, in the relevant currency, as may be necessary to compensate
for the shortfall. Any obligation of the Company not discharged by such payment
will, to the fullest extent permitted by applicable law, be due as a separate
and independent obligation and, until discharged as provided herein, will
continue in full force and effect.
17. Taxes.
All
payments due under this letter are to be made in U.S. dollars, free and clear
of, and without deduction for, any set-off, claim or applicable taxes (with
appropriate gross-up for any such taxes deducted or withheld). The Company
will
pay such additional amount as will result in the Representative receiving and
retaining (after any such deduction or withholding) an amount equal to the
payment that would have been due if no such deduction or withholding had been
required or made. For this purpose, “taxes” means all forms of taxation, duties
(including stamp duty), levies, imposts, charges and withholdings (including
any
related or incidental penalty, fine, interest or surcharge), whenever created
or
imposed, and whether required by the law of Mexico or required by the
regulations of Mexico, other than taxes imposed on a Representative by reason
of
any present or former connection between the Representative and Mexico, or
any
political subdivision thereof or therein (other than as a result of entering
into this Agreement and receiving payments hereunder). Each Representative
agrees to cooperate with the Company and provide the Company with any
documentation reasonably requested by the Company in order to reduce or
eliminate the amount of taxes required to be paid on any amounts due under
this
Agreement.
24
18. Waiver
of Immunity.
To the
extent that the Company has or hereafter may acquire any immunity (sovereign
or
otherwise) from any legal action, suit or proceeding, from jurisdiction of
any
court or from set-off or any legal process (whether service or notice,
attachment in aid or otherwise) with respect to itself or any of its property,
the Company hereby irrevocably waives and agrees not to plead or claim such
immunity in respect of its obligations under this Agreement.
19. Entire
Agreement.
This
Agreement constitutes the entire agreement and supercedes all prior agreements
and understandings, both written and oral, among the parties with respect to
the
subject matter hereof.
20. Counterparts.
This
Agreement may be signed in one or more counterparts, each of which shall
constitute an original and all of which together shall constitute one and the
same agreement.
21. Headings.
The
section headings used herein are for convenience only and shall not affect
the
construction hereof.
22. Definitions.
The
terms that follow, when used in this Agreement, shall have the meanings
indicated.
“Accession
Agreement” shall mean the Accession Agreement to be dated as of the Closing
Date, among the Company, each of the Grantor Subsidiaries, the Collateral and
Intercreditor Agent and the Trustee, in substantially the form of Exhibit A-1
to
the Master Collateral and Intercreditor Agreement.
“Act”
shall mean the U.S. Securities Act of 1933, as amended, and the rules and
regulations of the Commission promulgated thereunder.
“Affiliate”
shall have the meaning specified in Rule 501(b) of
Regulation D.
“Agency
Agreements” shall have the meaning specified in the Non-Possessory Pledge
Agreements.
“Business
Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or a
day on which banking institutions or trust companies are authorized or obligated
by law to close in The City of New York.
“Citigroup”
shall mean Citigroup Global Markets Inc.
“CNBV”
shall mean the Mexican National Securities and Banking Commission.
“Collateral”
shall have the meaning specified in the Master Collateral and Intercreditor
Agreement.
“Collateral
and Intercreditor Agent” shall have the meaning specified in the Master
Collateral and Intercreditor Agreement.
25
“Collateral
Documents” shall have the meaning specified in the Master Collateral and
Intercreditor Agreement.
“Collateral
Permitted Liens” shall have the meaning specified in the Master Collateral and
Intercreditor Agreement.
“Commission”
shall mean the U.S. Securities and Exchange Commission.
“Credit
Suisse” shall mean Credit Suisse First Boston LLC.
“CSFB
Accession Agreement” shall mean the Accession Agreement dated as of September
24, 2004, among the Company, the Collateral and Intercreditor Agent, the Grantor
Subsidiaries from time to time party thereto and the Administrative Agent named
therein
“Deloitte
Touche Tohmatsu” shall mean Xxxxx, Xxxxx-Xxxxxx, Chavero, Yamazaki, S.C., a
member firm of Deloitte & Touche International.
“Exchange
Act” shall mean the U.S. Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission promulgated thereunder.
“Execution
Time” shall mean the date and time that this Agreement is executed and delivered
by the parties hereto.
“Grantor
Subsidiaries” shall have the meaning specified in the Master Collateral and
Intercreditor Agreement.
“Indenture”
shall mean the Indenture dated as of the July 23, 2004, among the Company,
the
Note Guarantors and The Bank of New York as Trustee, as such may be amended
from
time to time.
“Investment
Company Act” shall mean the U.S. Investment Company Act of 1940, as amended, and
the rules and regulations of the Commission promulgated thereunder.
“Master
Collateral and Intercreditor Agreement” shall mean the Master Collateral and
Intercreditor Agreement dated as of July 23, 2004, among HSBC Bank USA, as
Collateral
and Intercreditor Agent, The Bank of New York, as Trustee for the Noteholders
(as defined therein), the Company, as issuer of the Notes (as defined therein)
and grantor of Collateral under the Collateral Documents (as defined therein),
and the Grantor Subsidiaries listed on Schedule I thereto or becoming a party
to
the agreement from time to time.
“NASD”
shall mean the National Association of Securities Dealers, Inc.
“Note
Guarantors” shall have the meaning specified in the Indenture.
“Non-Possessory
Pledge Agreements” shall have the meaning specified in the Master Collateral and
Intercreditor Agreement.
26
“Persons”
shall mean any individual, corporation, partnership, joint venture, association,
joint-stock company, trust, limited liability company, unincorporated
organization or government or agency or political subdivision thereof.
“PORTAL”
shall mean the Private Offerings, Resales and Trading through Automated Linkages
system of the NASD.
“Regulation
D” shall mean Regulation D under the Act.
“Regulation
S” shall mean Regulation S under the Act.
“Stock
Pledge Agreement” shall have the meaning specified in the Master Collateral and
Intercreditor Agreement.
“Trust
Indenture Act” shall mean the U.S. Trust Indenture Act of 1939, as amended, and
the rules and regulations of the Commission promulgated thereunder.
“UCC”
shall mean the Uniform Commercial Code as in effect in the state of New
York.
“Vitro
Packaging Security Agreement” shall mean the Security Agreement dated as of July
23, 2004 between Vitro Packaging and the Collateral and Intercreditor
Agent.
27
If
the
foregoing is in accordance with your understanding of our agreement, please
sign
and return to us the enclosed duplicate hereof, whereupon this letter and your
acceptance shall represent a binding agreement between the Company and the
several Initial Purchasers.
Very
truly yours,
Vitro
Envases Norteamérica, S.A. de C.V.
By:___________________________
Name:
Title:
Vitro
Envases Norteamérica, S.A. de C.V.
By:___________________________
Name:
Title:
The
foregoing Agreement is hereby
confirmed
and accepted as of the
date
first above written.
Credit
Suisse First Boston LLC
By:__________________________
Name:
Title:
SCHEDULE
I
|
Initial
Purchasers
|
Principal
Amount of
Securities
to be Purchased
|
|
|
Credit
Suisse First Boston LLC
|
U.S.$
80,000,000
|
|
|
Total
|
U.S.$80,000,000
|
|
