CHATTEL MORTGAGE AGREEMENT executed on November 1st of 2001 by:
(1) XXXXXXX BON XXXXXXXXXX, on his own right and representing misters
XXXXXX BON XXXXXXXXXX, XXXXX BON XXXXXXXXXX, and XXXX XXXXXXXXX
XXXXXXXXXX DE LA XXXX (hereinafter jointly known as the "Guarantors"),
and;
(2) AGROBIONOVA, S.A. DE C.V., represented in this act by misters Xxxxx
Xxxxx Pescador and Xxxxxxx Xxxxxxx Xxxxxxxxxx Xxxxx (hereinafter known
as "AGROBIONOVA" or the "TRUSTEE").
B A C K G R O U N D
I.- On November 1st of 2001, AGROBIONOVA executed a stock purchase agreement
with the Guarantors (hereinafter and as a shortcut "Purchase Agreement").
Through this Purchase Agreement, the Guarantors purchased from AGROBIONOVA
2,500,500 (Two Million Five Hundred Thousand Five Hundred) registered stocks
(the "Shares"), representative of the subscribed and paid capital stock of
Interfruver, S.A. de C.V. ("Interfruver"). A copy of the Purchase Agreement
is annexed to this Agreement as Exhibit "A".
II.- As a consequence of the execution of the Purchase Agreement, there is a
pending debt that has to paid by the Guarantors. In order to register their
obligation to pay to AGROBIONOVA the unpaid debt derived from the purchase of
the Shares, the Guarantors signed two promissory notes (the "Promissory
Notes") in favor of AGROBIONOVA. Such Promissory Notes include part of the
unpaid debt of the purchase of the Shares. A copy of the Promissory Notes is
annexed to this Agreement as Exhibits "B" and "C".
Hereinafter, the Purchase Agreement, the Promissory Notes, and any other
document executed according to such instruments shall be known as the
"Purchase Documents".
S T A T E M E N T S
I.- The Guarantors state that:
(a) Up to the date of execution of this Agreement they are the only
legitimate owners, among other things, of the Shares.
(b) The Shares (i) are totally subscribed and paid, (ii) are free from
any encumbrance and/or legal limitations regarding property ownership
rights, (iii) are represented by the final certificates of title
numbers 005, 006, 007, 012, 014, and 015, and (iv) represent, at
least, 50.01% (fifty point cero one percent) of the total, subscribed,
and paid capital stock of Interfruver.
(c) In order to induce AGROBIONOVA to sell the Shares on an installment
plan, they have agreed to constitute a pledge on the Shares in order
to guarantee the exact and timely payment of all the sums that they
owe
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AGROBIONOVA, according to the Purchase Agreement and the Promissory
Notes.
(d) They are people of Mexican nationality, with full power to acquire
obligations in accordance with the terms and conditions foreseen in
this Agreement.
(e) All of them are married, except for Xxxxxxx Bon Xxxxxxxxxx,
according to the laws of the Mexican United States ("Mexico"), under
a separation of marital property regime.
(f) The subscription, delivery, and compliance of the Guarantors to
this Agreement do not violate the laws or imply a contractual
restriction that obligates or affects the Guarantors.
(g) There is no need of an authorization or registry of or before any
governmental authority or controlling entity for the proper
subscription, delivery, and compliance of the Guarantors with this
Agreement, except for the registry of the pledge that is constituted
through this Agreement in the Registry Book of Shares of Interfruver.
(h) Mister Xxxxxxx Bon Xxxxxxxxxx is fully empowered to execute this
Agreement on behalf of and in representation of misters Xxxxxx Bon
Xxxxxxxxxx, Xxxxx Bon Xxxxxxxxxx, and Xxxx Xxxxxxxxx Xxxxxxxxxx de la
Xxxx. He proves such powers with a certified copy of a notarized
document that is annexed as Exhibit "D". Such powers have not been
modified, limited, nor revoked in any way.
(i) The obligations they acquire in this Agreement have full effect and
force against them, according to its terms.
In consideration of the prior Background and Statements, the parties
agree to subject themselves to the following:
C L A U S E S
FIRST.. The Guarantors constitute in this act a pledge over the Shares
in favor of AGROBIONOVA (together with any product derived from the
same, including shares, dividends, and money that is payable in relation
to the Shares), as a guarantee of the punctual and exact fulfillment of
all and each one of the obligations of the Guarantors, according to the
Purchase documents, including in an enunciative manner: the exact and
punctual payment of all and each one of the sums that the Guarantors owe
AGROBIONOVA under the concepts of main amount, interests, and other
accessories, in accordance to the Purchase Documents.
SECOND.- The guarantee that is constituted according to this Agreement
follows the terms of article 334 of the General Law of Negotiable
Instruments and Credit Transactions in force in Mexico, by:
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(a) The endorsement in guarantee that the Guarantors make of the stock
certificates that guarantee the Shares, in favor of AGROBIONOVA;
(b) The deposit of the stock certificates that guarantee the Shares
with AGROBIONOVA, in the understanding that the Trustee grants the
certification of deposit referred to on article 337 of the General
Law of Negotiable Instruments and Credit Transactions in this same
act; and
(c) The registration of the pledge constituted in this Agreement in the
Registry Book of Stocks of Interfruver. Such act is proved with the
certification of the Secretary of the Board of Directors of
Interfruver, delivered in this same act to AGROBIONOVA, and whose copy
is annexed as Exhibit "E".
THIRD.- The pledge that the Guarantors have constituted in accordance
to this Agreement will be subject to the following terms:
(a) The Trustee shall maintain the stock certificates that guarantee
the Shares in deposit, as long as any obligations that guarantee THE
FIXED PRICE are left unpaid according to this Agreement.
(b) If the Guarantors do not cover the FIXED PRICE established in the
Purchase Agreement, then AGROBIONOVA will have the right to exercise
all the corporate rights derived from the Shares. For such
purposes, when the Guarantors desire to participate in a
shareholders- meeting of Interfruver, the Guarantors must notify the
Trustee through writing with at least ten (10) days of anticipation
to the holding of the meeting that has been summoned and/or will be
held and/or the procedures that the Trustee needs to carry out in
order for the Guarantors to be able to vote the shares in such
shareholders' meeting; and the Trustee must sign and deliver to the
Guarantors, at the latest with five (5) days of anticipation to the
date of the shareholders meeting, the documents and/or the stock
certificates that are necessary, in the understanding that (i) if
such notification is not delivered to the Trustee according to this
paragraph, then AGROBIONOVA will not be responsible of the fact that
the guarantors will not be able to exercise their voting rights in
such shareholders' meeting, (ii) the Guarantors must refrain from
exercising their voting rights derived from the shares if the
exercise of such rights is inconsistent with or results a violation
of any provision of the Purchase Documents, according to AGROBIONOVA
(if its judgement considers it probable and justifiable), and (iii)
if there has been any cause of noncompliance with any of the
Purchase Documents, or if the Guarantors have not complied with any
of their obligations according to this Agreement, in such a case
AGROBIONOVA (through an attorney named by AGROBIONOVA for such
purposes) will exercise the voting rights that derive from the
shares, in such a from that they are not inconsistent with or result
in a violation of any provision of the Purchase Documents.
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FOURTH.- According to the terms of Article 343 of the General Law of
Negotiable Instruments and Credit Transactions if all or part of the
shares are redeemed through the payment in cash of their value, being
either by reducing the capital stock or by the winding up of Interfruver,
or by any other cause, then AGROBIONOVA will receive such payment in
cash; in the understanding that any sum received under these terms by
AGROBIONOVA shall be subject to the pledge constituted according to this
Agreement, to be applied by AGROBIONOVA in case of noncompliance of the
Guarantors to the payment of the obligations guaranteed in this
Agreement, in accordance to Article 338 of the General Law of Negotiable
Instruments and Credit Transactions.
FIFTH.- The parties expressly agree that AGROBIONOVA may exercise its
rights according to this Agreement and start any legal procedure in order
to exercise the pledge of the Shares constituted by this means if (i)
there is any cause of noncompliance of the Purchase Documents; or (ii) if
the Guarantors do not comply with any of the obligations of this
Agreement.
SIXTH.- This Agreement shall have a full effect and force until, and
including, the date in which all the obligations of the Guarantors have
been fulfilled according to the Purchase Documents.
If the Guarantors pay to AGROBIONOVA the FIXED PRICE of their debt prior
to its expiration, or on August 31 of the year 2002 (the date of
expiration of the FIXED PRICE), AGROBIONOVA will issue the pledge to the
Guarantors by delivering the stock certificates of the Shares that were
deposited according to this Contract.
SEVENTH.- All the notifications or notices included in this Agreement
shall be in writing and delivered through fax. They may also be
delivered to each party in the domicile established hereinafter or at any
other domicile that one party establishes in a written notification given
to the rest of the parties in this Agreement.
"GUARANTORS" "AGROBIONOVA"
Elote 2625 Rio Caura 000
Xxxxxxx xx Xxxxxxx Xxx. xxx Xxxxx
Xxxxxxxxxxx, Jalisco San Xxxxx Xxxxx Xxxxxx, X.X.
All notifications and notices delivered to the domiciles of the
corresponding party will start their effects on the date of their
delivery, and those sent by fax when the addressee issues a receipt
acknowledging the notification or corresponding notice.
EIGTH.- On request of any of the parties, this Agreement shall be
ratified before a Notary Public or Commercial Broker. The expenses of
such ratification will be charged to the party that requests such
ratification.
NINTH.- This Agreement shall be governed and interpreted according to
the laws of the Mexican United States. The Guarantors and AGROBIONOVA
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submit in this act to the exclusive jurisdiction of the competent courts
of the City of Monterrey, Nuevo Xxxx, Mexico, in relation to any suit or
legal procedure derived from this Agreement, and expressly waive any
other jurisdiction they might have now or in the future by reason of
their domiciles, or for any other reason.
IN WITNESS THEREOF, the parties sign this Agreement on the date mentioned
in the introduction of this instrument, before the presence of two
witnesses of age.
"GUARANTORS": "AGROBIONOVA":
/s/ XXXXXXX BON XXXXXXXXXX /s/ XXXXX XXXXX PESCADOR
------------------------------- -------------------------------
XXXXXXX BON XXXXXXXXXX Represented by
By his own Right Xxxxx Xxxxx Pescador
/s/ XXXXXXX BON XXXXXXXXXX /s/ XXXXXXX XXXXXXX MONTE-
------------------------------- MAYOR XXXXX
XXXXXX BON XXXXXXXXXX -------------------------------
Represented by Represented by
XXXXXXX BON XXXXXXXXXX Xxxxxxx Xxxxxxx Xxxxxxxxxx Xxxxx
/s/ XXXXXXX BON XXXXXXXXXX
-------------------------------
OSCAR BON XXXXXXXXXX
Represented by
XXXXXXX BON XXXXXXXXXX
/s/ XXXXXXX BON XXXXXXXXXX
-------------------------------
XXXX XXXXXXXXX XXXXXXXXXX DE
LA XXXX
Represented by
XXXXXXX BON XXXXXXXXXX
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