EXHIBIT 99.9
(TRANSLATION FROM SPANISH)
THE PARTIES INCLUDE THE FOLLOWING GENERAL INFORMATION AS AN INTEGRAL PART OF THE AGREEMENT:
AGREEMENT NO.: 54376-O4 DATE: 22 OF FEBRUARY 2005
TYPE OF ACCOUNT: INDIVIDUAL (X) JOINT ( ) SEVERAL ( )
ACCOUNT MANAGEMENT: DISCRETIONAL ( ) NON-DISCRETIONAL (X)
LIMITED DISCRETIONAL ( ) LIMIT ______________________________
CUSTOMER INFORMATION:
NAME(S) OR TRADING NAME BANCO INVEX S.A. FULL-SERVICE BANK BEHALF OF TRUST XX. 000
XXXXXXX XXXX. XXXXX XXXXXXX XX. 00 COL. XXXXX XX XXXXXXXXXXX XXX XXXX 00000 XXXXXX CITY
TELEPHONE NUMBER 53503333 53502331 F.T.R. BIN940223KE0
NATIONALITY MEXICAN IMMIGRATION STATUS ________________________________________________
ACCOUNT NO. 0446843751 BANK BBVA BANCOMER X.X. XXXXXX 956 ACCOUNT TYPE CHECKING
ACCOUNT NO. ********** BANK ********************* BRANCH *** ACCOUNT TYPE ************
LEGAL ENTITIES AND ECONOMIC UNITS:
TYPE OF ENTITY OR UNIT TRUST
INSTRUMENT 157931 DATE 23-02-1994 NOTARY 138
OF ************************ OTHERS ___________________________________________________________
ENTRY IN THE PUBLIC TRADE REGISTRY 187201 DATED 13-05-1994
LEGAL REPRESENTATIVE(S) WHO SIGNED THE AGREEMENT
INSTRUMENT 171763 DATE 16-08-1996 NOTARY 138
OF ________________________ OTHERS ___________________________________________________________
ENTRY IN THE PUBLIC TRADE REGISTRY 187201 - 26-08-1996
LEGAL REPRESENTATIVE(S) WHO SIGNED THE AGREEMENT
INSTRUMENT 171763 DATE 16-08-1996 NOTARY 138
OF ________________________ OTHERS ___________________________________________________________
ENTRY IN THE PUBLIC TRADE REGISTRY 187201 - 26-08-1996
PERSON(S) AUTHORIZED TO MANAGE THE ACCOUNT
INSTRUMENT 190106 DATE 23-06-2000 NOTARY 138
OF ************************ OTHERS ____________________________________________________________
ENTRY IN THE PUBLIC TRADE REGISTRY 187201 DATED 14-07-2000
BENEFICIARY(IES) %BENEFIT
**************************************************** ******************************************
**************************************************** ******************************************
**************************************************** ******************************************
**************************************************** ******************************************
INTEREST ESTABLISHED FOR THE PURPOSES OF SECTION 3 OF THE THIRTY-SEVENTH CLAUSE:
THREE TIMES THE EIIR AT TWENTY-EIGHT (28) DAYS, CORRESPONDING TO THE PERIOD OF
DEFAULT.
THE PARTIES HAVING READ THIS AGREEMENT AND FULLY AWARE OF ITS CONTENTS AND LEGAL
SCOPE, THEY SIGN IT IN EVIDENCE ON THE SAME DATE IN TRIPLICATE IN THE GENERAL
INFORMATION SECTION AND ON EACH PAGE OF THIS AGREEMENT IN THE SPACES INDICATED
TO SUCH EFFECT, ONE COPY REMAINING IN THE POSSESSION OF EACH PARTY.
AUTHORIZED SIGNATURE: TYPE (JOINT)
NAME XXXXXXX XXXXXX XXXXXX XXXXXXXXX F.T.R. *********** SIGNATURE
PROFESSION, PREPONDERANT ACTIVITY: ********************************** (Illegible Signature)
AUTHORIZED SIGNATURE: TYPE (JOINT)
NAME XXXX XXXXXXX XXXXXXX XXXXXX F.T.R. *********** SIGNATURE
PROFESSION, PREPONDERANT ACTIVITY: ********************************** (Illegible Signature)
AUTHORIZED SIGNATURE: TYPE (JOINT)
NAME XXXXXX XXXXXX XXXXX XXXXXX F.T.R. *********** SIGNATURE
PROFESSION, PREPONDERANT ACTIVITY: ********************************** (Illegible Signature)
NAME **************************** F.T.R. *********** SIGNATURE
PROFESSION, PREPONDERANT ACTIVITY: ********************************** ***********************
NAME **************************** F.T.R. *********** SIGNATURE
PROFESSION, PREPONDERANT ACTIVITY: ********************************** ***********************
OBSERVATIONS ***JOINT SIGNATURES***
ON BEHALF OF ACCIONES Y VALORES BANAMEX, S.A. DE C.V., BROKERAGE FIRM,
MEMBER OF THE BANAMEX FINANCIAL GROUP
(Illegible signature)
LEGAL REPRESENTATIVE
INSTRUMENT 23426 DATE 10TH OF MARCH 2000 NOTARY 197
OF MEXICO CITY FEDERAL DISTRICT OTHERS ___________________________________________________
THE CLAUSES AND GENERAL INFORMATION OF THE CUSTOMER FORM AN INTEGRAL PART OF THE
AGREEMENT. AUTHORIZATION OF THE NATIONAL BANKING AND SECURITIES COMMISSION
OFFICIAL LETTER 001 FEBRUARY 27, 1976 NATIONAL SECURITIES COMMISSION
REGISTRATION 20-2 DECEMBER 17, 1975 FEDERAL TAXPAYERS' REGISTRATION
AVM-760909-UKO Xxxxx xx xx Xxxxxxx 000, Xxx Xxxx 00000 Xxxxxx City, Federal
District. Tel. 000-00-00 000-00-00 Fax 000-00-00
SECURITIES TRADING AGREEMENT ENTERED INTO BY AND BETWEEN ACCIONES Y VALORES
BANAMEX, S.A. DE C.V., BROKERAGE FIRM, MEMBER OF THE BANAMEX FINANCIAL GROUP
(THE "BROKERAGE FIRM") AND THE PERSON(S) MENTIONED IN THE GENERAL INFORMATION
SECTION OF THIS AGREEMENT (THE "CUSTOMER", AND TOGETHER WITH THE BROKERAGE FIRM
THE "PARTIES") PURSUANT TO THE FOLLOWING:
RECITALS
I. The Brokerage Firm states:
That it is a company incorporated pursuant to the laws of the United Mexican
States and that it possesses the necessary authorizations for the making of this
agreement, and that its representative enjoys all the sufficient and necessary
powers to represent it.
(i) The Customer States:
a. He/she is an individual in full use and enjoyment of his/her
faculties, of the nationality indicated in the general information
section of this agreement, which he/she evidences with the documents
attached hereto for such purpose (Only Individuals);
(a) It is a duly incorporated Legal Entity, of the nationality
mentioned in the general information section of this agreement, as
evidenced with the documents attached hereto for such purposes, and
that its representative(s) possess(es) the necessary powers to
represent it, which have not been revoked or restricted;
b. That the resources or funds used for the performance of the
transactions covered by this agreement come and will at all times
come from legal activities;
c. That he/she/it is aware of and understands the provisions contained
in the Mexican Stock Market Act, in the Mexican Mutual Funds Act and
in the circulars issued by the Mexican National Banking and
Securities Commission, which are applicable to the transactions
covered by this agreement and that furthermore, he/she/it is bound
and exclusively responsible for being aware of any change thereto;
and
d. That he/she/it accepts that the Brokerage Firm should, in the
performance of its transactions, also abide by the general
provisions issued by the Bank of Mexico, and therefore he/she/it
will at all times be bound to consult with the Brokerage Firm
regarding the scopes and changes thereto, insofar as they are
applicable to the transactions performed under the coverage of this
agreement.
e. Under penalty of perjury, that the funds with which this Agreement
is opened and will be operated are from a legal source and origin,
i.e., that they do not directly or directly come from or represent
the profits derived from the committal of any crime.
f. Except in the case of a financial institution, he/she/it states that
he/she/it is acting on his/her/its own behalf and in his/her/its own
name, i.e., that the benefits derived from this Agreement and from
each transaction related thereto are not performed, nor will they be
performed in the name and on behalf of any third party, i.e., that
no End Beneficiary other than the Customer him/her or itself exists
or will exist, who receives the benefits of the Agreement; the
foregoing, irrespective of the possibility provided by the Stock
market Act to appoint beneficiaries in the case of the death of the
Customer.
Pursuant to the foregoing recitals, the Parties agree on the following:
CLAUSES
DEFINITIONS
First. The terms used starting with a capital letter in this agreement will have
the meanings listed for each of them, which will equally apply to the singular
and plural forms, accordingly:
Agent: Individual authorized by the CNBV to perform transactions with
the public and appointed by the Brokerage Firm, according to
its internal procedures, as its representative to perform
transactions with or on behalf of the Customer.
Self-entry: Transactions by means of which the Brokerage Firm purchases or
sells securities with a variable return on its own behalf,
from those listed in the corresponding chapter of this
agreement, from or to the Customer's position through the BMV,
with the aim of providing the market with liquidity and
facilitating the exchange of instruments between investors.
BMV: Mexican Stock Exchange (Bolsa Mexicana de Valores, S.A. de
C.V.)
Pledge of
Securities: Guaranty over Securities established to ensure the performance
of obligations assumed by the Brokerage Firm with or on behalf
of the Customer.
Circulars: General provisions issued by the CNBV or the Bank of Mexico
according to the respective Securities and transactions.
CNBV: Mexican National Banking and Securities Commission (Comision
Nacional Bancaria y de Valores).
Administrative
Shorts: Result of an international transaction in which the Customer
assumes the status of debtor of the Securities kept in custody
in other entities in virtue of a sales operation in which, due
to a difference between times, days or settlement terms
between the markets involved in such operation, the Customer
does not have enough Securities to perform its obligations
within the settlement term.
Security Custodian and
Administrator: The Brokerage Firm or the lending institution that acts on its
own behalf or as trustee, which has the status of depositor in
the INDEVAL and administers guaranties granted by the Customer
under the coverage of the transactions performed in the terms
of this agreement.
Account: That whose number is identified in the general information
section of this agreement.
Days: Those days other than Saturdays and Sundays on which brokerage
firms are bound to open their offices or branches according to
the calendar published every year by the CNBV in the Mexican
Official Gazette.
Executor: The Brokerage Firm or the lending institution appointed by
mutual agreement of the parties to execute the Pledge of
Securities that is established, as applicable.
Indeval: S.D. INDEVAL, S.A. de C.V. Securities Depository Institution.
Act: Stock Market Act.
MFA: Mutual Funds' Act.
Minimum
Amount: Securities, sums in cash or amount of the credit portfolio, if
applicable, necessary to ensure the performance of the
obligations derived from the Securities Loan transactions
performed by the Parties, which will be determined in the
terms of the applicable Circulars.
Securities
Loan: Transaction in virtue of which the owner of the Securities
(the lender), transfers their property to the borrower, who
receives them under loan and is bound, upon maturity of the
established term, to return to the former other Securities
from the same issuer, with the same par value, and of the same
kind, class, series and maturity date; or, in the cases
described in this Agreement, to deliver their cash equivalent;
as well as to pay the established price or premium; and to
refund the product of the property rights that may have been
generated by the Securities during the term of the loan, if so
established.
Repo: Credit transaction in virtue of which the repurchasee acquires
the property of Securities from the repurchaser for a sum of
money and is bound to transfer the property of other
Securities of the same kind to the repurchaser in a stipulated
term and against the refunding of the same price plus a
premium in favor of the repurchasee, if so established.
Mutual Funds: The Mutual Funds referred to by the MFA that are administered
by the Management Company.
Management
Company: The management company of the Mutual Funds that is a member of
the Banamex Financial Group, with which the Mutual Funds have
contracted or contract asset management services.
Short Sale: Is the Securities purchase-sale transaction performed through
the BMV, whose settlement is made by the vendor with
Securities obtained under loan, pursuant to the provisions of
the Act and applicable Circular.
Securities: The shares, obligations, debentures, bonds, certificates and
other negotiable instruments and documents issued in series or
en masse in the terms of the governing laws, destined to
circulate in the securities markets, including bills of
exchange, promissory notes and options issued in the
aforementioned manner and, where applicable, under the
coverage of an issue, when by legal provision or due to the
nature of the acts contained therein, this is required; and
the shares representing the capital of Mutual Funds.
II. GENERAL POWER OF ATTORNEY FOR STOCK MARKET BROKERAGE ACTS
Second. The Customer grants the Brokerage Firm a general power of attorney for
stock market brokerage acts consisting of purchasing, selling, giving under
loan, exchanging, repurchasing, allocating, transferring, performing Short
Sales, participating in Self-Entry transactions, safeguarding, administering,
giving under Pledge, granting guaranties and depositing all type of Securities,
including minted metals; as well as to represent the Customer in meetings of
shareholders, debenture-holders, holders of share certificates or other
Securities and to exercise the corresponding corporate and property rights, as
well as to carry out any act or transaction related to shares, Securities or
other negotiable instruments or documents authorized by the CNBV that the
Customer keeps in the Account.
In the management of the Account, the Brokerage Firm does not assume any
obligation to guarantee returns or yields, and nor is it responsible for the
losses that the investor may suffer as a consequence of the transactions
performed pursuant to the Act, the MFA and this agreement.
Third. The management of the Account will be discretional or non-discretional as
stated by the Customer in the general information section of this agreement, in
the understanding that in the case of omission it will be understood that the
Customer has opted for the non-discretional management of the Account.
Fourth. In the case that the management of the Account is non-discretional, the
power of attorney contained in this Agreement will be subject to the precise
instructions given to the Brokerage Firm by the Customer in writing or by any of
the means authorized and acknowledged in this agreement for the performance of
any transaction.
Fifth. The Brokerage Firm will fulfill the power of attorney and will perform
all the transactions covered by this agreement, through its Agent, who may be
substituted either temporarily or permanently thereby, at any time. The
Brokerage Firm is bound to inform the Customer of any definitive substitution of
the Agent, in the account statement for the month in which the substitution
occurs. In exercising the power of attorney, the Brokerage Firm may ask the
Customer to confirm its instructions in writing, inclusively using forms
prepared by the Brokerage Firm and to suspend the execution of any instruction
until it receives the confirmation referred to in the foregoing paragraph.
Sixth. The Parties agree that the instructions that the Customer gives to the
Brokerage Firm for the performance of transaction, exercise of rights,
fulfillment of obligations, making of movements in the Account or ordering the
withdrawal of Securities or cash, may be given, except for the provisions of the
fifth clause, either verbally, in writing, personally, by telephone or using any
electronic, computer or telecommunications media established between the
Parties. The Parties expressly acknowledge the telegraph, telex, fax,
tele-informatic elements, e-mail, videotexts, and videophones as valid means for
giving instructions. Furthermore, the Customer authorizes the Brokerage Firm so
that it may record the content of the conversations or instructions given by the
Customer, at its own discretion.
In the case that the Parties use the electronic media referred to in the
foregoing paragraph, the Customer should prove its identity by means of access
codes provided thereto by the Brokerage Firm. The Parties agree that the use of
the access codes referred to by this paragraph: (i) will be the exclusive
responsibility of the Customer, and, (ii) will substitute the use of handwritten
signatures, and therefore the documental or technical evidence derived from the
use of this media will produce the same effects as private documents in the
terms of the Act.
In any case, the Customer's instructions for the performance of transactions or
movements in its Account should state the type of transaction or movement, the
type, kind, class, issuer, quantity, price and any other characteristic required
to identify the Securities subject to each transaction or movement.
Seventh. In the case that the discretional management of the Account is
established, the Parties agree that the following stipulations will be
applicable thereto:
(i) The Brokerage Firm is authorized by the Customer to perform purchase,
sale, repurchase, loan, Self-entry, short sale or other transactions
that may be covered by this agreement in the terms of the Act, of the
MFA and of the Circulars, as well as to exercise the rights derived
from the Securities whose safeguarding and administration has been
commissioned thereto. The foregoing, irrespective of the particular
requirements established in the terms of this agreement for the
performance of the respective transactions. Such transactions and acts
will be performed by the Brokerage Firm acting at its discretion and
prudently, and looking after such account as if it were its own.
(ii) The acts and transactions referred to by the foregoing paragraph will
be ordered by the Agent handling the Account of the Customer, without
the approval or ratification of the Customer being required for each
transaction.
(iii) The Customer may limit the level of discretion in the management of the
Account regarding determined transactions, Securities, amounts or other
aspects by written instruction, which should be given in a specific and
detailed manner.
The level of discretion established in this clause may be revoked at any time by
the Customer by means of written communication in which such revocation is
recorded in a reliable fashion, which will enter into effect on the date of its
reception by the Promotion department of the Brokerage Firm. However,
transactions established prior to such communication, pending performance or
settlement will be performed as established.
Eighth. The Customer is expressly bound to perform with the Brokerage Firm, the
obligations that the latter has contracted with third parties with whom it has
contracted on behalf and by instruction of the Customer pursuant to this
agreement, in their terms.
Ninth. Under no circumstance will the Brokerage Firm be bound to carry out the
instructions of the Customer if the latter does not have the necessary
Securities or funds in its Account, or if the Account does not contain the
necessary credit balances or lines of credit available for the execution of such
instructions.
The Brokerage Firm should be excused from carrying out the instructions of the
Customer that contravene the provisions of the Act, the Circulars or any other
applicable provision, without assuming any liability as a result.
Tenth. The Parties agree that the Brokerage Firm will carry out the orders of
the Customer according to its Capital market Transactions Order Reception,
Registration, Execution, and Allocation System, an extract of which is attached
to this agreement as an integral part thereof.
III. SAFEGUARDING AND ADMINISTRATION
Eleventh. The Brokerage Firm is bound to provide the safeguarding and
administration service of the Securities belonging to the Customer, as well as
those that are transferred thereto or acquired on behalf thereof and to keep
them deposited in the Indeval or in another institution authorized for such
effects. Additionally, the Brokerage Firm is bound to make the collections of
returns or yields, to exercise the rights, make the payments and to perform the
necessary acts for the conservation of the rights and performance of the
obligations that the Securities impose on the Customer and regarding which it is
providing the safeguarding and administration service by means of a charge to
the Account as long as it contains the necessary funds and, if applicable, the
required instructions. Under no circumstance will the Brokerage Firm have the
obligation to exercise the rights or judicial or administrative actions related
to the Securities belonging to the Customer.
In the case of cash, when due to any circumstance, the Brokerage Firm is unable
to apply the funds to the transactions instructed by the Customer, on the same
Day of its reception, it should deposit them in a lending institution or acquire
shares representing the capital stock of a mutual fund in debt instruments
selected by the Brokerage Firm on behalf of the Customer.
The physical withdrawal or transfer of the deposited Securities may be performed
or ordered, as applicable, by the Customer or the representative of its
succession or its assignees by means of the signing of the documents requested
by the Brokerage Firm to verify the refund or transfer.
Twelfth. The Customer who wishes to attend a meeting regarding the deposited
Securities, will request it in writing to the Brokerage Firm at least eight Days
in advance of the date on which the participants register is closed and if this
does not exist, prior to the date on which the meeting is to be held, so that
the Brokerage Firm may, in the terms of the law, give the Customer the necessary
documentation to evidence its right of attendance to the respective meeting in
due time.
The power of attorney granted by the Customer to the Brokerage Firm in this
agreement specifically includes the powers referred to by Articles 192 of the
General Law on Business Corporations, 221 and 228 of the General law on
negotiable Instruments and Credit Transactions and other applicable precepts of
these or other laws, so that the Brokerage Firm may represent it in meetings of
shareholders, debenture-holders, holders of share certificates or other
Securities regarding which the safeguarding and administration service is being
provided.
The Customer hereby authorizes the Brokerage Firm to exercise the vote and any
other corporate rights derived from the Securities of the Customer, which it
keeps safeguarded and under administration in the Account, as decided by the
Brokerage Firm at its entire discretion, except when the Account is
non-discretional and as long as in all cases the Brokerage Firm receives written
notification at least five Days in advance of the date of the meeting, which
precisely states that the way in which the respective rights should be
exercised, as well as, where applicable, as long as the Account contains
sufficient funds to exercise the respective rights, at least two Days prior to
the expiration of the term required for the exercise of the respective right.
Except when the Brokerage Firm has not observed the instructions of the
Customer, given in time and in writing in accordance with the foregoing
paragraph, the Customer releases the Brokerage Firm from all liability for the
way in which the respective corporate rights have been exercised, as well as for
any damage or loss caused to the Customer.
The Brokerage Firm will inform the Customer, when so requested in writing by the
latter, regarding the resolutions adopted in the meeting to which the former has
attended in exercise of the power of attorney conferred in the terms of this
agreement.
Thirteenth. The Brokerage Firm should exercise the property rights and make the
payments or exhibitions in relation to the Securities regarding which it is
providing the safeguarding and administration service by means of a charge to
the Account when it has sufficient available funds.
In the case of an non-discretional account and that the Securities grant a right
of option or preference, the Brokerage Firm will exercise such right according
to the instructions of the Customer, as long as it has received sufficient funds
from the Customer at least two Days in advance of the expiration of the term for
making the payment of such right. Additionally, in the case of a discretional
Account, the Brokerage Firm will exercise such rights, as long as sufficient
funds exist in the Account at least two Days prior to the expiration of the term
for making the payment or exercising such right. Regarding discretional
accounts, the provisions of the seventh clause will apply.
The Customer agrees to that the Brokerage Firm is released from all liability
with the Customer for the acts or facts of the Indeval or any pother institution
that provides a similar service, which affect or hinder the exercise of any
right.
Fourteenth. The Brokerage Firm will provide the Customer with the safeguarding
and administration service of investments that consist of bank deposits in money
with interest in the understanding that the funds applied from or to such bank
deposits will always be delivered to Banco Nacional de Mexico, S.A., Banamex
Financial Group. In the case of funds that the Customer delivers in cash to the
Brokerage Firm and that the latter Is unable to apply for the purpose indicated
by the Customer on the same Day of their reception, the Brokerage Firm should
deposit them at the latest by the next Day in the lending institution of its
choice, or acquire shares representing the capital stock of any mutual fund in
debt instruments on behalf of the Customer, including those managed by the
Management Company, or any other member of the Banamex Financial Group.
Fifteenth. The Parties accept that, in the terms of the Act, the Brokerage Firm
is authorized to subscribe the endorsements and assignments of registered
Securities issued or endorsed in favor of the Customer regarding which the
service referred to by this chapter is being provided, on behalf and in the name
of the Customer.
IV. OWN BEHALF AND SELF-ENTRY TRANSACTIONS
Sixteenth. When due to the characteristics of the Securities traded on the
market or the mechanisms of their operation, the competent authority has
authorized the Brokerage Firm, by means of general provisions, to trade the
aforementioned Securities on its own behalf (i) the Brokerage Firm may perform
transactions directly with the Customer consisting of the purchase, sale,
repurchase and in general to perform any transaction on its own behalf that is
authorized by the competent
authority, (ii) the transactions will be established between the Customer and
the Brokerage Firm by means of the Agent, (iii) the Brokerage Firm will obtain
the profit or loss derived from the differences in the purchase and sale prices
of the respective Securities, except when any duty is established by the CNBV.
Seventeenth. The Customer may, by written notification to the Brokerage Firm,
authorize it to perform Self-entry transactions with shares, the trust
certificates that represent them, property contribution certifications, share
convertible bonds of high, low and medium marketability, as well as regarding
the options kept in its Account. The Brokerage Firm will inform the Customer
regarding these transactions in the terms stipulated in this agreement, and in
the case of options, will inform it of the quotations pursuant to the applicable
Circulars.
The Brokerage Firm may only perform Self-entry transactions (i) when all the
orders of the rest of its customers in the same sense (purchase or sale) have
been fulfilled regarding the Securities of the same issuer and at the same or
higher price, and as long as the order of the Customer has not been established
in the BMV with another Brokerage Firm, as previously indicated by the Customer
to the Brokerage Firm and under its own responsibility; (ii) when the Brokerage
Firm acts as purchaser, and a bid above the price at which the Brokerage Firm is
willing to buy has been made prior to the sale bid by the Customer on the
trading floor of the BMV, and (iii) when the Brokerage Firm acts as vendor when
a lower bid to the price at which the Brokerage Firm is willing to sell has been
presented on the trading floor of the BMV prior to the purchase bid of the
Customer.
The Brokerage Firm may perform Self-entry transactions with low marketability
shares according to the terms and conditions contained in the applicable
Circulars.
V. SHORT SALE TRANSACTIONS
Eighteenth. In the case that the Customer asks the Brokerage Firm to perform any
Short Sale transactions on behalf of the Customer, it should request it in
writing from the Brokerage Firm, which will make a prospectus available to it,
which will clearly explain the characteristics, requirements, stages and risks
inherent to the transaction, which should be signed by the Customer prior to
performing any transactions in the terms of this chapter. Once the prospectus
has been signed by the Customer, it will be considered to form an integral part
of this agreement.
Nineteenth. The Brokerage Firm may only perform Short Sale transactions with
shares, ordinary share certificates over shares and property contribution
certificates that correspond to the categories of high and medium marketability,
as well as any other Security that is authorized by the CNBV for these purposes,
which must be registered in the National Securities Registry.
VI. SECURITIES LOAN TRANSACTIONS
Twentieth. The Brokerage Firm may perform Securities Loan transactions with the
Customer including loans for Short Sales and to cover Administrative Shorts.
The Brokerage Firm may not establish Securities Loan transactions without
instructions from the Customer and written confirmation of the Brokerage Firm
signed by the Customer, even if the Account is discretional in which the
Securities, quantity, term, premium and guaranties will be detailed, the Pledge
of Securities, if applicable, the appointment of the Executor and the terms of
execution, as well as the other general conditions that will govern the
performance of this type of transaction in specific cases, pursuant to the
provisions of the Act and this agreement, as well as the applicable Circulars,
to which it agrees to be bound from the moment it instructs the Brokerage Firm
to perform these transactions. The term will be freely established by the
Parties for each transaction, without being able to exceed the maximum term
established in the applicable Circular. In these transactions, all calculations
will be done using the formula of a commercial year with 360 calendar days and
the number of Days effectively passed.
Twenty-first. Only those Securities authorized in the terms of the applicable
Circulars may be subject to loan, entered in the National Securities Registry
and deposited in the Bank of Mexico, in INDEVAL or in any other authorized
institution for the deposit of Securities. The minimum amount of the loans will
be governed by the provisions of the applicable Circulars and in the case of
government Securities and bank instruments, in the terms provided by the
applicable Circulars, by the operating manuals that the Brokerage Firm will make
available to the Customer, and will be reported by the Brokerage Firm by means
of written communication with acknowledgement of receipt, prior to the
performance of the first Securities Loan transaction.
Twenty-second. In the case that the Customer acts as a lender, only those
Securities that are credited to its Account at the close of trading on the Day
prior to the date agreed for the loan may be subject to lending.
Twenty-third. The transfer of the Securities covered by the loan should be
performed on the same date as the performance of the transaction.
Twenty-fourth. In the case that the Customer acts as borrower, the Securities
Loan transactions in which it participates should be guaranteed with cash,
Securities or with an irrevocable letter of credit granted by the lending
institution of its choice or with any other guaranty authorized pursuant to the
applicable Circulars. In the case of guaranties constituted with Securities,
these may only be established with Securities authorized by the CNBV pursuant to
such Circulars. The guaranty should be established on the same date on which the
Securities are transferred and the Minimum Amount should be the percentage or
sum established by the applicable Circulars and, failing this, that fixed by
mutual agreement of the Parties.
The borrower may substitute the guaranty following authorization of the lender,
or, if applicable, acting on its own behalf, as long as the Minimum Amount is
met in all cases, in the terms of the Circulars and of the stipulations of each
loan transaction.
Twenty-fifth. When the Securities are entrusted to the Brokerage Firm for their
administration and are attached to a Pledge, the Brokerage Firm will act as the
Custodian and Administrator of the Guaranty. In such case, the Brokerage Firm
should: (i) value the Securities under loan on a daily basis, as well as the
corresponding guaranty; (ii) require the borrower to reconstitute or increase
the guaranty in the terms of the applicable Circulars; (iii) release, if
applicable, the proportional part of the guaranty; (iv) notify the Executor when
applicable; (v) makes the Securities given under guaranty available to the
Executor so that it may proceed with the extrajudicial sale thereof, when
applicable, and (vi) release the guaranties following the settlement of the
premium, the agreed commissions and the corresponding expenses to be paid to the
Custodian and Administrator of the Guaranty and once the Securities covered by
the loan have been returned to the lender.
Twenty-sixth. The Parties agree that the Securities Loan transactions may only
be settled with the delivery of the Securities by the Customer or with the
product of the execution of the guaranties. In any case, the loan for the
settlement of pending transactions should respect the maximum terms established
in the applicable Circulars.
Twenty-seventh. The Securities Loan will be terminated in advance: (i) by mutual
agreement of the Parties; (ii) when the quotation of the loaned Securities is
suspended on the BMV within eight Days prior to the maturity date of such
transaction and the suspension lasts for 5 Days; (iii) if the borrower is in
voluntary or involuntary bankruptcy proceedings; and (iv) in the case that the
borrower breaches the obligation to refund the minimum amount of the guaranty,
as agreed with the Brokerage Firm in the instruction referred to in the previous
clause.
If the quotation of the Securities on the BMV is suspended, the transaction will
be settled in cash in the terms of the applicable Circulars.
VII. REPO TRANSACTIONS
Twenty-eighth. In the Repo transactions performed by the Parties: (i) the
Brokerage Firm will act as repurchaser and the Customer as repurchasee, (ii)
they should establish, using any of the forms accepted in the terms of this
agreement, the price, premium and term of the Repo, as well as the class of
Securities subject thereto, as long as they are authorized in the terms of the
Circulars, and (iii) will be subject, regarding anything not provided for in
each transaction and in this agreement, to the provisions of the Act and the
applicable Circulars.
The Customer accepts that Repo transactions will abide by the provisions and, if
applicable, changes issued to this regard by the Bank of Mexico; in the
understanding that any change thereto will be informed through its account
statement or a separate document sent together with such account statement.
Twenty-ninth. The maximum term of the Repo transactions performed by the Parties
and their extensions will be that which corresponds according to the Act and the
applicable Circulars, depending on the Securities covered by each transaction.
The term established by the Parties may not exceed the maturity date of the
Securities. If the term of the Repo matures on a non-business day, the Repo will
be understood to be automatically extended to the next Day except with regards
to Repos over instruments subject to international arbitrage, in which case the
Brokerage Firm reserves the right to terminate the respective transactions in
advance. The term fixed for the maturity of each transaction may only be
terminated in advance with the consent of the Parties in the cases described by
the Act and the Circulars.
Thirtieth. In the case that the repurchased Securities correspond to the
capitals market and their issuer decree an exchange during the term of the Repo,
the Customer will be bound to deliver Securities from the same issuer equivalent
to those originally received under Repo to the Brokerage Firm; furthermore, in
the case that the Securities confer options to be
exercised during the term of the Repo, the Customer, following the provision of
funds at least two Days in advance, will be bound to exercise such option on
behalf of the Brokerage Firm.
In the case that the Securities are traded "at a discount", a) the price agreed
in the Repo will be that resulting from applying the annual discount rate of
purchase-sale transactions between brokerage firms performed in the BMV
corresponding to the date on which the Repo transaction has been established to
the par value of the Securities, and b) the sum of the price plus the
established premium should not exceed the par value of the instruments subjects
to the Repo.
In the case of Securities traded "at price", a) the agreed price may not differ
from the result of adding the price that corresponds to Securities of the same
issue as the repurchased ones covered by the last purchase-sale transactions
performed between brokerage firms in the BMV except for those called "same day
value" to the accrued and unpaid interest of the instruments subject to the
Repo, and b) the sum of the price plus the established premium should not exceed
the result of adding the interest corresponding to the term of the transaction
to the par value of the Securities subject to the Repo, considering for these
effects, the interest rate on the date of their performance. If the Securities
are denominated in a foreign currency, and the price is established in US
dollars, in order to calculate the price, the selling exchange rate published by
the BMV in the "daily movement of the stock market" on the second Day prior to
the date on which the transaction is performed will be used.
The Customer should pay the Brokerage Firm the price of the Repo and the
Brokerage Firm will transfer the respective Securities to the Account of the
Customer, on the same value date, which may not be later than the fourth Day
following the date on which the transaction is established, except for the
provisions of the Circulars depending on the Securities subject to the Repo.
Upon maturity, the aforementioned transfers should be performed on the same
maturity date.
Thirty-first. The premium of Repo transactions will be determined by applying
the rate agreed between the Parties to the price established in each
transaction, as an annual percentage for the duration of the Repo.
Except in the case of extensions, on the maturity date of the term of the Repo:
(i) the Customer should deliver the Securities covered by the Repo to the
Brokerage Firm, and (ii) the Brokerage Firm should deliver the agreed price and
premium to the Customer. When extensions exist, the Brokerage Firm should pay
the Customer the amount of the premium corresponding to the original transaction
on the date on which the respective extension is formalized. Additionally, it
should refund the price and pay the premium applicable to the extension on the
final maturity date of the transaction.
If the day on which the transaction should be settled, the Brokerage Firm does
not settle it, it will be understood to be abandoned, extinguishing the
obligation of the Customer to give the Brokerage Firm the Securities covered by
the Repo, in which case the Customer may claim the payment of the agreed premium
from the Brokerage Firm, as well as the differences resulting between such
premium and the price of the average purchase quotation offered on the BMV by
the brokerage firms for the repurchased Securities, corresponding to the second
Day following the maturity date of the Repo transaction.
Thirty-second. The Repo transactions performed under the coverage of this
agreement should (i) be settled in Mexican territory and in Mexican currency,
even in the case that the price is denominated in US dollars, using the selling
exchange rate published by the BMV in the "Daily Stock Market Movement" of the
day prior to the payment; and (ii) all the calculations will use the formula of
a commercial year with 360 days and the number of calendar days effectively
passed in each transaction.
VIII. MUTUAL FUNDS
Thirty-third. In the event that the Customer acquires shares issued by Mutual
Funds distributed by the Brokerage Firm, acting as integral distributor, the
account statement that the Brokerage Firm sends on its own behalf in the terms
of the Brokerage Agreement will be understood to have also been sent on behalf
of the corresponding Mutual Fund or Funds, with which the requirements indicated
by the Act and the MFA will have been met; irrespective of whether the
Management Company sends its own account statements.
In the case that the Mutual Funds, whose shares are acquired by the Customer,
make changes to the investment or repurchase system, the Brokerage Firm will
send the Customer the notice of the changes to the information prospectus',
through the account statement corresponding to the month in which the Brokerage
Firm has been notified by the respective Mutual Fund regarding such changes. The
Customer may consult the information prospectus' and their changes through the
website at: xxx.xxxxxxx.xxx.xx, as well as in the offices of the Brokerage Firm;
being able to state its agreement through the aforementioned web site or
directly in the offices of the Brokerage Firm, using the medium indicated
thereby.
The Customer accepts that any acquisition or sale it instructs the Brokerage
Firm to perform regarding shares representing the capital stock of the Mutual
Fund whose investment or repurchase system has been previously altered, will
provide its consent to such changes, except when the Customer exercises its
right to that the Mutual Fund repurchase all of its shares, in the terms and
time periods indicated in the applicable provisions. The Brokerage Firm doers
not assume any liability for the changes to the investment or repurchase system
and to the information prospectus' whose representative shares are acquired by
the Customer, or for the lack of timeliness with which such changes are notified
to the Brokerage Firm, by the respective Mutual Fund.
Thirty-fourth. The Customer is bound to pay all the commissions charged to it as
purchaser of shares representing the capital stock of Mutual Funds, contemplated
in the information prospectus' for the investing public, pursuant to applicable
provisions. The Brokerage Firm does not assume any liability for the lack of
knowledge of the Customer regarding the percentage and concept of the
commissioned charged to the Customer, as the Customer acknowledges that, in the
terms of the applicable provisions, it is the exclusive responsibility of Mutual
Funds to inform the purchasers of information about the percentage and concept
of commissions to be charged to the Customer, with the periodicity established
in the aforementioned applicable provisions.
The Customer will pay the Brokerage Firm, in its status as distributor, the
commissions derived from any or all of the following concepts, which the
Customer may obtain in the offices of the Brokerage Firm:
a) For the acquisition or sale of the shares representing the capital stock of
the Investment Fund.
b) For the provision of the deposit and custody service of shares representing
the capital stock of the Mutual Funds.
c) For the provision of other services whose description will at all times be
available to the Customer.
d) For any of the following events, following agreement of the Brokerage Firm
with the respective Mutual Fund: (i) due to breach of the minimum term of
permanence established to this effect in the investing public information
prospectus and (ii) due to breach of the minimum investment balance indicated to
this effect in the investing public information prospectus, in this case the
commission will not be applicable when such fault is the result of a reduction
in the price of the shares of the respective Mutual Fund.
The increases or reductions in the commissions described herein, except for that
indicated in point d) above, will be previously informed to the Customer through
any of the means provided in this agreement, its account statement or by any
other means according to the general provisions issued by the CNBV.
IX. GENERAL PROVISIONS
Thirty-fifth. The Brokerage Firm will register in the Customer's Account, the
transactions, deliveries or transfers of Securities or cash made by the
Customer, the amount of the interest, returns, yields or dividends received, the
redemptions made, the price of the amount of sales of instruments and rights
and, in general, any balance in favor of the Customer in Securities or cash; as
well as the withdrawals of Securities or cash made by the Customer and the fees,
remunerations, expenses and other payments that the Customer makes or should pay
as well as the transfer of the duly detailed Value Added Tax and the
withholding, where applicable, of Income Tax.
Thirty-sixth. The Brokerage Firm will prepare a receipt for each transaction it
performs under the coverage of this agreement, which will contain all the
necessary information for its identification and the amount of the transaction.
This receipt and the book registration number will be available to the Customer
in the office of the Brokerage Firm as of the Day following the date on which
the transaction is performed, unless it is managed through an office located
outside of the city in which the head offices of the Brokerage Firm are located,
in which case the receipt will be available to the Customer on the second Day
following the performance of the transaction. The foregoing, irrespective of
whether the transaction is shown in the monthly account statement.
Thirty-seventh. The Brokerage Firm will be bound to send the Customer, within
the first 5 days following the monthly cut-off date, an account statement
containing the list of all the transactions performed with it or on its behalf,
which shows the position of the Customer's Securities and cash to the last Day
of the monthly cut-off date, as well as the position of Securities and cash from
the previous month.
The account statement should be sent to the address indicated by the Customer in
the general information section of this agreement or to any other address
indicated by the Customer to this effect.
Thirty-eighth. The Customer will have 20 Days following the sending of the
account statement in which to object to it in writing. Otherwise, the Customer
irrevocably accepts that the transactions listed in the account statement have
been consented to, without the right to make any claim or compensation of any
kind.
In order to be able to make the objections it deems appropriate in due time, the
Customer will have access to and may collect from the offices of the Brokerage
Firm, a copy of such account statement from the Day following the Account
cut-off date.
Thirty-ninth. The Customer expressly authorizes the Brokerage Firm to charge the
following to the Account, among other concepts:
1. The amount of the transactions that the Brokerage Firm performs in compliance
with the power of attorney.
2. The remunerations that the Brokerage Firm is entitled to receive according to
the stipulations of the parties or with the duties established by the
competent authority, if applicable.
3. The normal and default interest specified in the general information section
of this agreement, which will be paid on the sums that the Customer owes to
the Brokerage Firm for any concept in virtue of the performance of the legal
acts covered by this agreement.
4. The expenses caused in virtue of the fulfillment of the performed
transactions and the services provided by the Brokerage Firm and, if
applicable, the taxes, duties and contributions derived from them.
Fortieth. The receipts, proof, account statements and other documents that the
Brokerage Firm issues in favor of the Customer to evidence the reception or
transfer of Securities and cash will always be issued in the name of the
Customer and will under no circumstance be negotiable.
Forty-first. The Customer acknowledges and accepts that all the Securities and
cash belonging to the Customer registered in the Account are understood to be
specially and preferentially destined for the payment of the remunerations,
interest, expenses or any other debt of the Customer with the Brokerage Firm,
and therefore the Customer may not withdraw such Securities or cash until such
debts have been paid.
Forty-second. The Parties agree that the cash withdrawals ordered by the
Customer will be documented: (i) by check drawn by the Brokerage Firm in favor
of the Customer; (ii) by deposit or by the use of electronic means, which will
only be done in the account opened in the name of the Customer in the bank
mentioned in the general information section or in the account for electronic
transfers whose number appears in the general information section or which is
stated by the Customer in a separate document delivered to the Brokerage Firm
and which is satisfactory for the latter; and (iii) by written communication
that the Customer sends to the Brokerage Firm.
Forty-third. For the effects of this instrument, the way of handling the Account
is understood to mean: (i) individual ("Individual") that in which the holder is
a single person; (ii) several ("Several") that in which two or more individuals
are the holders of the same Account, considering all of them as indistinctive
holders of the rights and obligations derived from this agreement, each of the
holders being authorized to independently give orders and instructions,
establish the transactions described in this agreement and to make total or
partial withdrawals of Securities or cash and any other transaction related to
the Account; and (iii) joint ("Joint") that in which all of the holders are
required to give instructions, establish the transactions described in this
agreement and to make total or partial withdrawals of Securities or cash and any
other transactions related to this agreement.
If the Customer is a legal entity, the Account will be individual without the
acceptance of joint holders or beneficiaries.
In the case that the Customer is a legal entity, it appoints as its
representative(s) the person(s) indicated in the general information section of
this agreement. In the case of changing representative(s) or limiting their
powers, the Customer is bound to notify this in writing, attaching the copies of
the documents that evidence such representation.
Forty-fourth. In the case that the Customer is one (or several) individual(s)
and the Account is individual or joint respectively and that for any reason
he/she (they) are legally unable to manage the Account, the Brokerage Firm,
based on the notification made thereto of such circumstance, will be solely
bound to fulfill the transactions performed pending settlement, suspending in
continuation the performance of new transactions until the representatives of
the holder in question appear before the Brokerage Firm to evidence their powers
for the management of the Account.
In the case that the Account is discretional, the management will be suspended
until the Brokerage Firm receives written instructions from the person
authorized to give orders on behalf of the Customer.
Forty-fifth. In the terms of the law, the Customer appoints as beneficiary(ies)
of the agreement, the person(s) mentioned in the general information section of
this agreement who will have the right to receive from the Brokerage Firm,
regarding such agreement, individually or prorated or, according to the
instructions of the Customer, a sum that does not exceed the highest of the
following amounts: the equivalent of 10 (ten) times the general daily minimum
wage in Mexico City taken up to one year or 50% (fifty percent) of the balance
registered in the Account. Any surplus will be delivered in the terms of common
legislation.
Forty-sixth. The stipulations contained in this agreement will be applicable to
any transactions or act commissioned by the Customer from the Brokerage Firm,
regarding any stock exchange or extra-stock exchange instrument with which the
Brokerage Firm trades. If the transactions with any instruments or Securities
require the granting of any contract or legal act other than this instrument,
the Parties should formalize it so that Brokerage Firm is able to perform the
corresponding transactions.
Forty-seventh. In the event of amendments or additions to this agreement, as
well as to any other agreement, contract or legal act derived from it, the
Brokerage Firm will send the respective amendment to the Customer, duly signed
by its representative, by registered mail with acknowledgement of receipt, to
the address of the Customer, whose terms may be opposed within 20 Days following
the date of reception and by the same means. Otherwise, the Customer accepts
that, in the terms of the Act, the amendment will be considered to have been
accepted and will enter into full legal effect, even without the signature of
the Customer. Additionally, prior to the conclusion of the term established in
the foregoing paragraph or the reception of any objection, any act or
instruction made by the Customer according to the terms of the amendment will be
considered as an acceptance thereof, and therefore it will enter into full legal
effect.
Forty-eighth. In the terms of section XI of Article 91 of the Stock Market Act,
the Customer gives its consent so that the CNBV investigates acts or facts that
contravene the provisions of the Act, for which inspection visits may be made
thereto regarding such acts or facts, as well as summoning it, requiring
information that may aid the suitable development of the investigation and take
its statements regarding such acts.
Forty-ninth. The Customer accepts that for anything not provided for in this
agreement, the provisions of the Act, the MFA and the Circulars applicable to
each of the transactions covered by this agreement will apply.
Fiftieth. The duration of this agreement is indefinite. Either of the Parties
may terminate it by simple written notification to the other party, given five
Days in advance. In the case that the Brokerage Firm decides to terminate this
agreement, the Customer is bound to withdraw its Securities and cash,
instructing the Brokerage Firm to this effect at the latest by the Day on which
the termination is effective. Otherwise, the Brokerage Firm may proceed in
accordance with the applicable legal provisions.
Fifty-first. The Brokerage Firm indicates as its address: Xxxxx xx xx Xxxxxxx
000, Xxx. Xxxxxx, Xxxxxx City, Federal District, Zip Code 06600 and the
Customer, that indicated in the general information section of this Agreement.
Fifty-second. This agreement is subject to and will be governed and construed
according to the applicable laws of the United Mexican States. For its
construction and performance, the Parties expressly consent to the competent
courts of Mexico City, Federal District, waiving the right to any other
jurisdiction, venue or competence that may correspond thereto in virtue of their
domicile or for whatever other reason.
Fifty-third. This securities trading agreement substitutes any securities
trading, commission, deposit, Securities loan and Self-entry contract or
agreement and any other entered into by and between the Parties that refers to
transactions governed by the Act, and previously executed by the Parties.
The Customer irrevocably states that it is aware of and understands the contents
of the Act, of the MFA, Circulars and of any other legal provisions applicable
to the transactions to be performed under the coverage of this agreement, and
that the expression of its desires does not include any error, mala fides or
vice of consent whatsoever.
This agreement is signed in triplicate in the margin, at the foot and in the
general information section thereof, with one copy for the Customer.
Fifty-fourth. The Customer expressly authorizes the Brokerage Firm to provide
the data and documents related to its identification and other information
obtained according to the "Know-Your-Customer" procedures established by the
Brokerage Firm, to its other business areas, subsidiaries and affiliates, for
those activities related to the offering of other
products and/or services that are marketed, represented or distributed by such
entities, as well as for purposes of its due identification and formation of its
Customer files.
SIGNATURES
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