Contract
EXHIBIT
4.26
VITRO
GUARANTY
THIS
GUARANTY (this “Guaranty”)
dated
as of March 31, 2005, is made by VITRO, S.A. DE C.V., a corporation
(“sociedad
anónima de capital variable”)
organized under the laws of the United Mexican States (the “Guarantor”),
in
favor of the holders of the Certificados
Subordinados.
W I T N E S S E T H:
WHEREAS,
pursuant to the Contrato
de Fideicomiso Irrevocable de Emisión, Administración y
Pago,
dated
as of March 23, 2005, by and between Compañía Vidriera,
S.A.
de C.V., a corporation organized under the laws of Mexico, Industria del
Álcali,
S.A. de C.V., a corporation organized under the laws of Mexico, Comercializadora
Álcali, S. de X.X. de C.V., a limited liability company organized under the
laws
of Mexico, as
Fideicomitentes y Fideicomisarios en Tercer Lugar, ABN Amro Bank (Mexico),
S.A.,
Institución de Banca Múltiple Division Fiduciara, Banco Invex, S.A.,
Institución de Banca Múltiple, Invex Grupo Financiero, as Representante Común,
as
the
same may be amended or modified from time to time (the “Trust
Agreement”),
the
holders of Certificados
Subordinados have
certain rights and obligations, including the right to receive payments in
respect of the Certificados
Subordinados
(as
defined in the Trust Agreement) under the terms and conditions set forth
in the
Trust Agreement (the holders of such Certificados
Subordinados are
referred to herein as the “Subordinate
Certificate Holders”);
WHEREAS,
the Guarantor has duly authorized the execution, delivery and performance
of
this Guaranty; and
WHEREAS,
it is in the best interests of the Guarantor to execute this Guaranty and
the
execution and delivery of this Guaranty is a material inducement for the
Subordinate Certificate Holders to execute and deliver the purchase agreement
relating to the Certificados
Subordinados (the
“Purchase
Agreement”);
NOW
THEREFORE, for good and valuable consideration, the receipt and sufficiency
of
which are hereby acknowledged, the Guarantor agrees, for the benefit of the
Subordinate Certificate Holders, as follows:
ARTICLE
I
DEFINITIONS
SECTION
1.1 Certain
Terms.
The
following terms when used in this Guaranty, including its preamble and recitals,
shall have the following meanings (such definitions to be equally applicable
to
the singular and plural forms thereof):
“Additional
Costs”
is
defined in Section 6.11
hereof.
“Capital
Stock”
shall
mean, with respect to any Person, any and all shares, interests, participation
or other equivalents (however designated, whether voting or non-
voting)
of such Person’s capital stock or other ownership interests, whether now
outstanding or issued after the date hereof, including, without limitation,
all
common stock and Preferred Stock.
“Capitalized
Lease”
shall
mean, as applied to any Person, any lease of any property (whether real,
personal or mixed) of which the discounted present value of the rental
obligations of such Person as lessee, in conformity with Mexican GAAP, is
required to be capitalized on the balance sheet of such Person; and “Capitalized
Lease Obligation” is defined to mean the rental obligations, as aforesaid, under
such lease.
“Consolidated
Subsidiaries”
shall
mean, as to any Person, all Subsidiaries of such Person which are consolidated
with such Person for financial reporting purposes in accordance with
GAAP.
“Currency
Agreement”
shall
mean any foreign exchange contract, currency swap agreement or other similar
agreement or arrangement designed to protect the Guarantor, any Settlor or
any
Restricted Subsidiary against fluctuations in currency values.
“GAAP”
means,
Mexican generally accepted accounting principles as in effect from time to
time
applied on a basis consistent with those applied in the preparation of then-most
recent audited consolidated financial statements of the relevant Person and
its
Consolidated Subsidiaries delivered to the Trustee (except for changes concurred
in by such Person’s independent auditors).
“Government
Agency”
shall
mean any ministry, administrative department, agency, commission, bureau,
board,
regulatory authority, registry, instrumentality, governmental body, entity,
judicial or administrative body, central bank or court (including, without
limitation, banking and taxing authorities) of, or controlled by, as the
case
may be, Mexico or the United States of America or any political subdivision
thereof.
“Governmental
Approval”
shall
mean any authorization, approval, consent, license, concession, ruling, permit,
certification, order, validation, exemption, waiver, variance, opinion of,
or
registration, filing or recording with, any applicable Government
Agency.
“Guaranteed
Obligations”
is
defined in Section 2.1
hereof.
“Guarantor”
is
defined in the preamble
hereof.
“Guarantor
Default”
means
any Guarantor Event of Default or any event, act or condition which, with
notice
or lapse of time, or both, would constitute a Guarantor Event of
Default.
“Guarantor
Event of Default”
is
defined in Article V
hereof.
“Guaranty”
is
defined in the preamble.
2
“Indebtedness”
shall
mean, with respect to any Person at any date of determination (without
duplication), (i) all indebtedness of such Person for borrowed money,
or
with respect to deposits or advances of any kind, and all obligations of
such
Person upon which interest charges are customarily paid, (ii) all
obligations of such Person evidenced by bonds, debentures, notes or other
similar instruments, (iii) all obligations of such Person in respect
of
bankers’ acceptances, letters of credit or other similar instruments (including
reimbursement obligations with respect thereto), (iv) all obligations
of
such Person to pay the deferred and unpaid purchase price of property or
services and all obligations of such Person under conditional sale or other
title retention agreements relating to property acquired by such Person,
(v) all obligations of such Person as lessee under Capitalized Leases,
(vi) all Indebtedness of other Persons guarantied by such Person or
secured
by a lien on any asset of such Person, whether or not such Indebtedness is
assumed by such Person; provided that the amount of such Indebtedness shall
be
the lesser of (A) the fair market value of such asset at such date
of
determination and (B) the amount of such Indebtedness, (vii) all
Indebtedness of, and any liquidation preference and any mandatory redemption
payment obligations in respect of, Preferred Stock issued by, other Persons
guaranteed by such Person to the extent such Indebtedness is guaranteed by
such
Person, (viii) to the extent not otherwise included in this definition,
obligations under Currency Agreements and Interest Rate Agreements net of
all
benefits under any Currency Agreements and Interest Rate Agreements to the
extent able to be setoff against such obligations, (ix) the maximum
fixed
redemption or repurchase price of any redeemable stock issued by such Person.
The amount of Indebtedness of any Person at any date shall be the outstanding
balance at such date of all unconditional obligations as described above
and,
with respect to contingent obligations, the maximum liability upon the
occurrence of the contingency giving rise to the obligation, provided that
the
amount outstanding at any time of any Indebtedness issued with original issue
discount is the face amount of such Indebtedness less the remaining unamortized
portion of the original issue discount of such Indebtedness at such time
as
determined in conformity with GAAP. Notwithstanding the foregoing, “Indebtedness”
shall
not include (i) any liability to the Pension Benefit Guaranty Corporation
under the term sheet dated January 29, 1997 and entered into in connection
with the sale of assets of Anchor Glass Container Corporation (or any definitive
agreement in respect thereof or instrument relating thereto) or (ii) Trade
Payables.
“Interest
Rate Agreement”
shall
mean any interest rate swap agreement, interest rate collar agreement or
other
similar agreement or arrangement designed to protect the Guarantor or any
of its
Restricted Subsidiaries against fluctuations in interest rates.
“Material
Adverse Effect”
means a
material adverse effect on (a) the business, assets, operations, prospects
or
condition, financial or otherwise, of the Guarantor and its Subsidiaries
on a
consolidated basis, (b) the ability of the Guarantor or such Subsidiaries
to
perform any of its obligations hereunder, or under any of the Transaction
Documents, or (c) the rights of or benefits available to the Subordinate
Certificate Holders hereunder or under the Transaction Documents.
3
“Person”
shall
mean any individual, partnership, limited partnership, joint venture, firm,
corporation, association, trust, estate or other enterprise or any government
or
political subdivision or any agency, department or instrumentality
thereof.
“Preferred
Stock”
shall
mean, with respect to any Person, any and all shares, interests, participations
or other equivalents (however designated, whether voting or non-voting) of
such
Person’s preferred or preference stock, whether now outstanding or hereafter
issued, including, without limitation, all series and classes of such preferred
or preference stock.
“Settlors”
shall
have the meaning ascribed to the terms Fideicomitentes
and Fideicomisarios en Tercer Lugar
under
the Trust Agreement.
“SHCP”
is
defined in Section 6.11
hereof.
“Significant
Subsidiary”
shall
mean, at any date of determination, any Subsidiary of the Guarantor that,
together with its Subsidiaries, (i) for the most recent fiscal year
of the
Guarantor, accounted for more than 10% of the consolidated revenues of the
Guarantor and its Subsidiaries or (ii) as of the end of such fiscal
year,
was the owner of more than 10% of the consolidated assets of the Guarantor
and
its Subsidiaries, all as set forth on the most recently available consolidated
financial statements of the Guarantor for such fiscal year.
“Subordinate
Certificate Holders”
is
defined in the first recital
hereof.
“Subsidiary”
shall
mean, with respect to any Person, (i) any corporation, association
or other
business entity of which more than 50% of the outstanding Voting Stock is
owned,
directly or indirectly, by such Person and one or more other Subsidiaries
of
such Person or (ii) any other corporation, association or other business
entity that is required by Mexican GAAP to be combined or consolidated with
such
Person for purposes of general financial reporting.
“Trade
Payables”
shall
mean, with respect to any Person, any accounts payable, Indebtedness or monetary
obligation to trade creditors (or bankers’ acceptances, letters of credit or
other similar instruments (including reimbursement obligations with respect
thereto) issued to assure payment of any such accounts payable, Indebtedness
or
monetary obligation) Incurred by such Person arising in the ordinary course
of
business in connection with the acquisition of goods or services and required
to
be paid within one year from the date of Incurrence thereof.
“Transaction
Documents”
shall
mean the Trust
Agreement, the Acta
de Emisión,
the
Certificados
Subordinados,
the
Purchase Agreement and any other document related to, or in connection with,
the
Emisión.
“Trust”
shall
mean the trust established pursuant to the Trust Agreement.
“Trust
Agreement”
is
defined in the first recital
hereof.
4
“Trustee”
shall
have the meaning ascribed to the term Fiduciario in the Trust
Agreement.
“Voting
Stock”
shall
mean with respect to any Person, Capital Stock of any class or kind ordinarily
having the power to vote for the election of directors, managers or other
voting
members of the governing body of such Person.
ARTICLE
II
GUARANTY
PROVISIONS
SECTION
2.1 Guaranty.
(a)
The
Guarantor hereby absolutely, unconditionally and irrevocably guarantees the
full
and prompt payment when due, whether at stated maturity, by acceleration
or
otherwise, and at all times thereafter, all principal, interest, fees and
all
other monetary obligations of the Trust owed to each of the Subordinate
Certificate Holders relating to the Certificados
Subordinados,
howsoever created, arising or evidenced, whether direct or indirect, absolute
or
contingent, now or hereafter existing, or due or to become due, which arise
out
of or in connection with the Trust Agreement (all such obligations being
herein
collectively called the “Guaranteed
Obligations”).
This
Guaranty constitutes a guaranty by the Guarantor of payment when due and
not of
collection, and the Guarantor specifically agrees that it shall not be necessary
or required that the Trustee or any Subordinate Certificate Holder or any
other
Person exercise any right, assert any claim or demand or enforce any remedy
whatsoever against the Trustee (or any other Person) before or as a condition
to
the obligations of the Guarantor hereunder. In the event that any of the
Guaranteed Obligations shall not be paid when due within any period provided
for
in the Certificados
Subordinados,
the
Guarantor agrees to pay such Guaranteed Obligations to the corresponding
Subordinate Certificate Holder within 30 (thirty) calendar days after delivery
of a written demand by any such Subordinate Certificate Holder to the Guarantor.
Without limiting the generality of the foregoing, upon any default on the
payment of any of the Guaranteed Obligations, the Subordinate Certificate
Holders may demand payment directly to the Guarantor, either prior to or
concurrently with any requirement or lawsuit against, or without bringing
requirement or suit against, the Trust.
(b)
Any
term
or provision of this Guaranty or any other transaction document executed
in
connection with the Trust Agreement to the contrary notwithstanding, the
aggregate maximum amount of the Guaranteed Obligations for which the Guarantor
shall be liable shall not exceed the maximum amount for which the Guarantor
can
be liable without rendering this Guaranty or any other transaction document
executed in connection with the Trust Agreement as it relates to the Guarantor,
voidable under applicable law relating to fraudulent conveyance or fraudulent
transfer.
(c)
Any
term or provision of
this Guaranty or the Trust Agreement or any other transaction document executed
in connection therewith to the contrary notwithstanding, the aggregate maximum
amount of the Guaranteed Obligations for which the Guarantor shall be liable
with respect to the principal amount of the Certifcados
Subordinados
shall
5
not
exceed (x) USD$19,000,000 (nineteen million Dollars) minus (y) any
principal amounts of the Certificados
Subordinados
indefeasibly paid in cash to the extent the Certifcados
Subordinados
have
been permanently reduced with respect to such payment, or such higher amount
as
the Guarantor shall have agreed to in writing, provided,
that
the foregoing shall only limit Guarantor’s obligations for principal of the
Certifcados
Subordinados
but
shall not limit or impair the Guarantor’s obligation with respect to any other
Guaranteed Obligation.
SECTION
2.2 Acceleration
of Guaranty.
The
Guarantor agrees that, if any Evento
de Amortización Anticipada or Causa de Incumplimiento (as
such
terms are defined in the Trust Agreement) relating to the
Certificados Subordinados under
Cláusula 11 of the Trust Agreement or under the Acta
de Emisión
(as such
term is defined in the Trust Agreement) shall occur at a time when any
of the
Guaranteed Obligations are not then due and payable, the Guarantor shall
pay to
the Trustee for the account of the Subordinate Certificate Holders forthwith
the
full amount which would be payable hereunder by the Guarantor if all Guaranteed
Obligations were then due and payable, unless such Subordinate Certificate
Holder is Coöperatieve Centrale Raiffeisen-Boerenleenbank B.A. “Rabobank
International”, New York Branch (“Rabobank”), a financial institution organized
under the laws of the Kingdom of the Netherlands, acting through its branch
office licensed by the State of New York, in which case the Guarantor will
pay
such amount directly to Rabobank.
SECTION
2.3 Guaranty
Absolute, etc.
This
Guaranty shall in all respects be a continuing, absolute, unconditional
and
irrevocable guaranty of payment by the Guarantor, and shall remain in full
force
and effect until all Guaranteed Obligations have been paid in full, finally
and
indefeasibly. The Guarantor irrevocably guarantees that the Guaranteed
Obligations shall be paid strictly in accordance with the terms of the
Trust
Agreement and any other transaction document executed in connection therewith
under which they arise, regardless of any law, regulation or order now
or
hereafter in effect in any jurisdiction affecting any of such terms or
the
rights of any Subordinate Certificate Holder or any other Person with respect
thereto. The liability of the Guarantor under this Guaranty shall be absolute,
unconditional and irrevocable irrespective of, and shall not be released,
discharged or in any way affected by any circumstance, condition or matter,
including, without limitation:
(a)
any
lack
of validity, legality or enforceability of any of the Transaction Documents
or
any other transaction document executed in connection with the Trust
Agreement;
(b)
the
failure of the Trustee, any Subordinate Certificate Holder or any other
Person:
(i)
to
assert
any claim or demand or to enforce any right or remedy against the Trust
or any
other Person (including any other guarantor) under the provisions of the
Trust
Agreement or any other transaction document executed in connection therewith
or
otherwise, or
6
(ii)
to
exercise any right or remedy against any other guarantor or against any
collateral of any Guaranteed Obligations;
(c)
any
change in the time, manner or place of payment of, or in any other term
of, all
or any of the Guaranteed Obligations, or any other amendment, waiver, extension,
compromise or renewal of any Guaranteed Obligation;
(d)
any
change, release or non-perfection of any collateral, or any release or
amendment
or waiver of any other guaranty or security agreement, for all or any of
the
Guaranteed Obligations;
(e)
any
reduction, limitation, impairment or termination of any Guaranteed Obligations
for any reason (other than payment), including any claim of waiver, release,
surrender, alteration or compromise, and shall not be subject to (and the
Guarantor hereby waives any right to or claim of) any defense or setoff,
counterclaim, recoupment or termination whatsoever by reason of the invalidity,
illegality, nongenuineness, irregularity, compromise, unenforceability
of, or
any other event or occurrence (other than indefeasible payment in full
in cash
of the Guaranteed Obligations) affecting, any Guaranteed
Obligations;
(f)
any
inability, lack of authority or legal disability of any party to execute,
deliver and perform any of the Transaction Documents, or any other document
under, derived from, or in connection with the Emisión
(as
such
term is defined in the Trust Agreement;
(g)
any
amendment to, rescission, nullification, waiver, or other modification
of, or
any consent to departure from, any of the terms of the Trust Agreement
or any
other transaction document executed in connection therewith, including
without
limitation any amendment, rescission, waiver or other modification or consent
which results in an increase in the amount of the Guaranteed
Obligations;
(h)
(i)
any
addition, exchange, release, surrender or non-perfection of any collateral
or
(ii) any amendment to or waiver or release or addition of, or consent
to
departure from, any other guaranty held by the Trustee, or any Subordinate
Certificate Holder, securing or supporting any of the Guaranteed
Obligations;
(i)
the
voluntary or involuntary liquidation, dissolution, sale of assets, marshalling
of assets and liabilities, receivership, conservatorship, custodianship,
insolvency, bankruptcy, concurso
mercantil,
assignment for the benefit of creditors, reorganization, arrangement,
composition or readjustment of or similar proceeding affecting (i) any
Fideicomitente
(as
such
term is defined in the Trust Agreement); (ii) any Subordinate Certificate
Holder; or (iii) any estate of the Trust (Fideicomiso);
7
(j)
any
other
circumstance (other than payment) which might otherwise constitute a defense
available to, or a legal or equitable discharge of, the Trust, any surety
or any
other guarantor.
SECTION
2.4 Marshaling,
Reinstatement.
The
Guarantor agrees that none of the Subordinate Certificate Holders nor any
Person
acting for or on behalf of the Subordinate Certificate Holders shall have
any
obligation to marshal any assets in favor of the Guarantor or against or
in
payment of any or all of the Guaranteed Obligations. If the Guarantor or
any
other guarantor of all or any part of the Guaranteed Obligations makes
a payment
to any Subordinate Certificate Holder, or if any Subordinate Certificate
Holder
receives any other payment in respect of the Guaranteed Obligations, which
payment or any part thereof is subsequently invalidated, declared to be
fraudulent or preferential, set aside and/or required to be repaid to the
Guarantor, such other guarantor or any other Person, or their respective
estates, trustees, receivers or any other party, under any bankruptcy law,
“concurso
mercantil”,
state
or federal law, common law or equitable cause, then, to the extent of such
payment or repayment, the part of the Guaranteed Obligations which has
been
paid, reduced or satisfied by such amount shall be reinstated and continued
in
full force and effect as of the time immediately preceding such initial
payment,
reduction or satisfaction.
SECTION
2.5 The
Guarantor agrees that its guaranty hereunder shall continue to be effective
or
be reinstated, as the case may be, if at any time payment, or any part
thereof,
of any monetary obligation of the Trust to a Subordinate Certificate Holder
is
rescinded or must otherwise be restored upon the bankruptcy, concurso
mercantil
or
reorganization of the Fidecomitentes/Fideicomisarios (as defined in the
Trust
Agreement).
SECTION
2.6 Waiver,
etc.
The
Guarantor hereby waives, to the greatest extent permitted by applicable
law:
(i) any
and
all notice of the creation, renewal, extension or accrual of any of the
Guaranteed Obligations;
(ii)
promptness, diligence or notice of acceptance and any other notice with
respect
to any of the Guaranteed Obligations and this Guaranty and any requirement
that
the Trustee, or any Subordinate Certificate Holder protect, secure, perfect
or
insure any security interest or lien, or any property subject thereto,
or
exhaust any right or take any action against the Trustee or any other Person
(including any other guarantor) or entity or any collateral securing any
Guaranteed Obligations or any of the other Obligations;
(iii) any
and
all rights which the Guarantor may have under, or which at any time hereafter
may be conferred upon it by, any law or any other regulation limiting its
liabilities under this Guaranty;
(iv) any
right, beneficio
de orden, división
and
excusión
and any
of the rights provided for in Articles 2813, 2814, 2815, 2816, 2817,
2818,
2820, 2821, 2822, 2823, 2836, 2842, 2845, 2846, 2847, 2848, 2849 et
al
of the
Federal Civil Code and the corresponding provisions of the Civil Code for
the
Federal District of Mexico and of the
8
civil
codes for all the states of Mexico, which are not reproduced herein inasmuch
as
the Guarantor hereby represents to be familiar with the contents thereof,
as
well as all other rights and defenses the assertion or exercise of which
would
in any way diminish the liability of the undersigned hereunder.
Without
limiting the generality of the foregoing, the Guarantor hereby acknowledges
and
agrees that it shall not be a third party beneficiary to the Trust Agreement
or
any other transaction document executed in connection therewith.
SECTION
2.7 Waiver
of Subrogation and Contribution.
Until
the Guaranteed Obligations have been paid in cash indefeasibly in full,
the
Guarantor hereby irrevocably waives any claim or other rights which it
may now
or hereafter acquire against the Trustee or any other Person that arise
from the
existence, payment, performance or enforcement of the Guarantor’s obligations
under this Guaranty or any other transaction document executed in connection
therewith, including any right of subrogation, reimbursement, contribution,
exoneration, or indemnification, any right to participate in any claim
or remedy
of the Trustee or any Subordinate Certificate Holder against any Person
or any
collateral which the Trustee or any Subordinate Certificate Holder now
has or
hereafter acquires, whether or not such claim, remedy or right arises in
equity,
or under contract, statute or common law, including the right to take or
receive
from the Trustee or any other Person, directly or indirectly, in cash or
other
property or by set-off or in any manner, payment or security on account
of such
claim or other rights. If any amount shall be paid to the Guarantor in
violation
of the preceding sentence and the Guaranteed Obligations shall not have
been
paid in cash indefeasibly in full, such amount shall be deemed to have
been paid
to the Guarantor for the benefit of, and held in trust for, the Trustee
and the
Subordinate Certificate Holders, and shall forthwith be paid to the Trustee
for
the account of the Trustee and the Subordinate Certificate Holders to be
credited and applied upon the Guaranteed Obligations, whether matured or
unmatured. The Guarantor acknowledges that it will receive direct and indirect
benefits from the financing arrangements contemplated by the Trust Agreement
and
that the waiver set forth in this Section is knowingly made in contemplation
of
such benefits. If the Guarantor has made payment to the Trustee and the
Subordinate Certificate Holders of all or any part of the Guaranteed
Obligations, the Trustee and the Subordinate Certificate Holders agree
to
execute and deliver to the Guarantor appropriate documents (without recourse
and
without representation and warranty) necessary to evidence the transfer
by
subrogation to the Guarantor of an interest in the Guaranteed Obligations
resulting from such payment by the Guarantor.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES
The
Guarantor represents and warrants to the Subordinate Certificate Holders
that:
SECTION
3.1 Organization,
etc.
The
Guarantor is duly organized and validly existing under the laws of its
jurisdiction of formation; and the Guarantor has full corporate power and
authority to own its property and conduct its business as presently conducted
by
it
and,
except where the failure to do so, individually or in the aggregate, could
not
reasonably be expected to result in a Material Adverse Effect, is qualified
to
do business in, and is in good standing in, every jurisdiction where such
qualification is required. The
Guarantor’s legal representatives have full power and authority to execute this
Guaranty on its behalf, which authority has not been revoked, limited or
modified in any manner whatsoever.
SECTION
3.2 Authorization;
No Conflict.
The
execution and delivery by the Guarantor of this Guaranty, and the performance
by
the Guarantor of its obligations under this Guaranty, are within the corporate
powers of the Guarantor, have been duly authorized by all necessary corporate
action on the part of the Guarantor (including any necessary shareholder
or
Board action), and do not and will not (a) violate any provision
of law
which is binding on the Guarantor, (b) contravene or conflict with,
or
result in a breach of, any provision of the organizational documents of
the
Guarantor or of any material agreement, indenture, instrument or other
document,
or any judgment, order or decree, which is binding on the Guarantor or
(c) result in, or require, the creation or imposition of any lien
on any
property of the Guarantor.
SECTION
3.3 Validity
and Binding Nature.
This
Guaranty is the legal, valid and binding obligation of the Guarantor,
enforceable against the Guarantor in accordance with its terms, except
that
enforceability may be limited by bankruptcy, insolvency, concurso
mercantil,
fraudulent conveyance, fraudulent transfer, reorganization, moratorium
or other
similar laws now or hereafter in effect relating to creditors’ rights generally
and by general principles of equity (regardless of whether enforcement
is sought
in equity or at law).
SECTION
3.4 Benefit
to Guarantor.
The
Guarantor’s guarantee pursuant to this Guaranty reasonably may be expected to
benefit, directly or indirectly, the Guarantor and that such guarantee
and other
obligations are necessary and convenient to the conduct, promotion and
attainment of the business of the Guarantor.
SECTION
3.5 Governmental
Approvals.
No
Governmental Approval or consent or approval of any other Person is required
to
authorize, or is required in connection with (i) the execution,
delivery
and performance by the Guarantor of this Guaranty, or (ii) the legality,
validity, binding effect or enforceability against the Guarantor of this
Guaranty.
SECTION
3.6 Litigation.
There
is no litigation, action, suit, investigation, claim or proceeding pending
or,
to the knowledge of the Guarantor, threatened with respect to this Guaranty
or
the transactions contemplated hereby.
SECTION
3.7 Notwithstanding
the fact that the Certificados Subordinados are subordinated to the Certificados
Bursátiles Preferentes,
no
payment under this Guaranty is subject to redistribution to the holders
of the
Certificados
Bursátiles Preferentes.
9
ARTICLE
IV
AFFIRMATIVE
AND NEGATIVE COVENANTS
The
Guarantor covenants and agrees that on and after the date hereof and
until the
Guaranteed Obligations are paid in full:
SECTION
4.1 Information
Covenants.
Guarantor
will furnish or cause to be furnished to the Trustee for distribution
to each
Subordinate Certificate Holder:
(a)
Annual
Financial Statements.
As soon
as available, but, in any event, within 120 days after the close
of each
fiscal year of Guarantor, the consolidated balance sheet of the Guarantor
and
its Consolidated Subsidiaries for such fiscal year, together with the
related
consolidated statements of income and retained earnings and statements
of
changes in financial position for such fiscal year certified by independent
public accountants of recognized international standing selected by
the
Guarantor, and in each case pursuant to an unqualified opinion of such
independent public accountants, which audit was conducted in accordance
with
GAAP consistently applied.
(b)
Quarterly
Financial Statements.
As soon
as available, but, in any event, within 60 days after the close
of each
quarterly accounting period in each fiscal year of the Guarantor, a
copy of the
unaudited balance sheet of the Guarantor and its Consolidated Subsidiaries
for
such period, together with the related statements of income and retained
earnings and statements of changes in financial position for such quarterly
period, certified by the principal executive officer, the principal
financial
officer or another authorized executive officer of the Guarantor, who
in such
capacity has actual knowledge of the matters to which he or she is
certifying,
as prepared in accordance with GAAP consistently applied, subject to
normal
recurring year-end adjustments and the absence of certain footnotes
to such
financial statements.
(c)
Officer’s
Certificates.
As soon
as available, but in any event, within 45 days after the close
of each
quarterly accounting period in each fiscal year of the Guarantor,
a certificate
signed by an executive officer of the Guarantor to the effect that,
to the best
of such officer’s knowledge, there has not occurred any of the events described
in the Acuerdo
Xxxxxxx (Y) Cuenta de la Garantía
of the
Sesión
del Comité Técnico Inicial
dated
March 29, 2005.
SECTION
4.1 Books,
Records and Inspections; Accounting Matters; Provision of Certain
Financial
Statements.
The
Guarantor shall, and shall cause each of its Subsidiaries to, keep
proper books
of record and account adequate to reflect truly and fairly the
financial
condition and results of operations of the Guarantor and its Subsidiaries
and in
which full, true and correct entries in conformity with GAAP consistently
applied and all requirements of law shall be made of all dealings
and
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transactions
in relation to its business and activities. At any time when securities
of the
Guarantor or any of its Subsidiaries are held by the public, promptly
upon the
delivery or filing thereof, the Guarantor shall deliver to the
Trustee a copy of
all reports and registration statements that such Guarantor or
such Subsidiary
files with the Securities and Exchange Commission of the United
States of
America or the Comision Nacional Bancaria y de Valores or any Mexican
or other
securities authority or exchange.
SECTION
4.3 Modification
of Certain Agreements.
The
Guarantor will not amend or modify, or permit the amendment or
modification of
this Guaranty without the prior written consent of the majority
of the
Subordinate Certificate Holders.
ARTICLE
II
MISCELLANEOUS
PROVISIONS
SECTION
5.1 Binding
on Successors, Transferees and Assigns; Assignment of Guaranty.
This
Guaranty shall be binding upon the Guarantor and its successors,
transferees and
assigns, and all references herein to the Guarantor, shall be deemed
to include
any of its successor or successors, whether intermediate or remote;
provided,
however,
that
the Guarantor shall not have the right to assign any of its obligations
hereunder without the prior written consent of the Trustee and
a majority of the
Subordinate Certificate Holders. Any Subordinate Certificate Holders
may from
time to time, without notice to the Guarantor, assign or transfer
any or all of
the Guaranteed Obligations or any interest therein; and, notwithstanding
any
such assignment or transfer or any subsequent assignment or transfer
thereof,
such Guaranteed Obligations shall be and remain Guaranteed Obligations
for the
purpose of this Guaranty, and each and every immediate and successive
assignee
or transferee of any of the Guaranteed Obligations or of any interest
therein
shall, to the extent of the interest of such assignee or transferee
in the
Guaranteed Obligations, be entitled to the benefits of this Guaranty
and shall
be protected to the same extent as if such assignee or transferee
were a
Subordinate Certificate Holder as of the date hereof.
SECTION
5.2 Amendments,
etc.
All
amendments to or waivers of any provision of this Guaranty, and
all consents to
any departure by the Guarantor herefrom, shall comply in all respects
with
Cláusula 21 of the Trust Agreement, which is incorporated herein
by
reference, mutatis mutandis,
as if
such terms were set forth in this Guaranty in full.
SECTION
5.3 Addresses
for Notices to the Guarantors.
All
notices hereunder to the Guarantor shall be in writing (including
via facsimile)
and shall be sent to it at the address or facsimile number set
forth below its
signature hereto or at such other address or facsimile number as
may be
designated by the Guarantor in a written notice received by the
Trustee and the
Subordinate Certificate Holders. Notices sent by facsimile transmission
shall be
effective when received; notices sent by mail (including by
courier)
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shall
be
deemed to have been given or made when delivered; and notices sent
by hand
delivery shall be deemed to have been received when received.
SECTION
5.4 No
Waiver; Remedies.
In
addition to, and not in limitation of, Section 2.3,
Section 2.5,
and
Section 2.7,
no
failure on the part of the Trustee or any Subordinate Certificate
Holder to
exercise, and no delay in exercising, any right hereunder shall
operate as a
waiver thereof; nor shall any single or partial exercise of any
right hereunder
preclude any other or further exercise thereof or the exercise
of any other
right. The remedies herein provided are cumulative and not exclusive
of any
remedies provided by law. Pursuant to the Trust Agreement, this
Guaranty
has been delivered to the Trustee and (b) the Trustee has
been authorized
to enforce this Guaranty on behalf itself and of each of the Subordinate
Certificate Holders. All payments by the Guarantor pursuant to
this Guaranty
shall be made to the Subordinate Certificate Holder and applied
according to the
terms of the Certificados
Subordinados.
SECTION
5.5 Section
Captions.
Section
captions used in this Guaranty are for convenience of reference
only, and shall
not affect the construction of this Guaranty.
SECTION
5.6 Fees
and Expenses.
The
Guarantor further agrees to pay all reasonable expenses (including
reasonable
attorneys’ fees and legal expenses from time to time invoiced) paid or incurred
by the Trustee or any Subordinate Certificate Holder in endeavoring
to collect
the Guaranteed Obligations pursuant to this Guaranty, or any part
thereof, and
in enforcing this Guaranty against the Guarantor or its successors
or
assigns.
SECTION
5.7 Severability.
Wherever possible each provision of this Guaranty shall be interpreted
in such
manner as to be effective and valid under applicable law, but if
any provision
of this Guaranty shall be prohibited by or invalid under such law,
such
provision shall be ineffective to the extent of such prohibition
or invalidity,
without invalidating the remainder of such provision or the remaining
provisions
of this Guaranty.
SECTION
5.8 Governing
Law, Entire Agreement, Counterparts, etc.
THIS
GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE
STATE OF NEW YORK WITHOUT REGARD TO ITS CONFLICTS OF LAW PRINCIPLES
(OTHER THAN
SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW),
unless
proceedings are brought in Mexico, in which case the law of Mexico
shall
govern.
This
Guaranty and the other Transaction Documents constitute the entire
understanding
among the parties hereto with respect to the subject matter hereof
and thereof
and supersede any prior agreements, written or oral, with respect
thereto. This
Guaranty may be executed in any number of counterparts and by the
different
parties hereto on separate counterparts, and each such counterpart
shall be
deemed to be an original, but all such counterparts shall together
constitute
one and the same Guaranty. At any time after the date of this Guaranty,
one or
more additional persons or entities may become parties hereto by
executing and
delivering to the Subordinate Certificate Holders a counterpart
of this
Guaranty. Immediately upon such execution and delivery (and without
any further
action), each such additional person or entity will become a party
to, and will
be bound by all the terms of, this Guaranty.
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SECTION
5.9 Forum
Selection And Consent To Jurisdiction.
ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION
WITH, THIS
GUARANTY MAY BE BROUGHT AND MAINTAINED ONLY IN THE
SUPREME COURT OF THE STATE OF NEW YORK SITTING IN NEW YORK
COUNTY,
OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW
YORK
OR IN ANY COMPETENT FEDERAL OR LOCAL COURT LOCATED IN THE FEDERAL DISTRICT,
UNITED MEXICAN STATES, OR IN ANY COMPETENT COURTS OF THE CORPORATE
DOMICILE OF
THE GUARANTOR, AND
ANY APPELLATE COURT FROM ANY THEREOF..
THE GUARANTOR AND, BY ACCEPTING THE BENEFITS OF THIS GUARANTY, EACH
OF THE
SUBORDINATE CERTIFICATE HOLDERS HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS
TO THE
JURISDICTION OF SUCH COURTS FOR THE PURPOSE OF ANY SUCH LITIGATION
AS SET FORTH
ABOVE. THE GUARANTOR AND, BY ACCEPTING THE BENEFITS OF THIS GUARANTY,
EACH OF
THE SUBORDINATE CERTIFICATE HOLDERS HEREBY EXPRESSLY AND IRREVOCABLY
WAIVES, TO
THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW
OR HEREAFTER
HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH
COURT
REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT
IN AN
INCONVENIENT FORUM.
The
Guarantor hereby irrevocably appoints CT Corporation System (the “Process
Agent”),
with
offices at the date hereof at 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000,
Xxxxxx Xxxxxx, as its agent to receive on behalf of the Guarantor and
its
property service of copies of the summons and complaint and any other
process
which may be served in any such action or proceeding. Such service
may be made
by mailing or delivering a copy of such process to the Guarantor in
care of the
Process Agent at the Process Agent’s address, and the Guarantor hereby
irrevocably authorizes and directs the Process Agent to accept such
service on
its behalf. As an alternative method of service, the Guarantor irrevocably
consents to the service of any and all process in any such action or
proceeding
by the mailing of copies of such process to the Guarantor in the manner
set
forth in Section 6.3 hereof. For purposes of the foregoing,
the Guarantor
shall grant a general power of attorney for lawsuits and collections
to the
Process Agent in accordance with the first paragraph of section 2,554
of the
Civil Code for the Federal District of Mexico (Código
Civil para el Distrito Federal)
and its
correlative sections of the Federal Civil Code of Mexico (Código
Civil Federal)
and the
Civil Codes of the States of Mexico before a Mexican Notary Public
to the
satisfaction of the Subordinate Certificate Holders.
SECTION
5.10 Waiver
of Jury Trial.
THE
GUARANTOR AND, BY ACCEPTING THE BENEFITS HEREOF, EACH SUBORDINATE CERTIFICATE
HOLDER HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVES ANY
RIGHTS IT MAY
HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON,
OR ARISING
OUT OF, UNDER, OR IN CONNECTION WITH, THIS GUARANTY AND ANY AMENDMENT,
INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE
BE
DELIVERED IN CONNECTION
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HEREWITH,
AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE
A COURT AND
NOT A JURY.
SECTION
5.11 Payments
Free and Clear of Taxes.
All
payments to be made by the Guarantor hereunder shall be made free
and clear of,
and without deduction for or on account of, any present or future
taxes,
value-added taxes, levies, imposts, duties, fees, assessments or
other charges
of whatever nature now or hereafter imposed (in all cases excluding
income
taxes) and all interest, penalties or similar liabilities with respect
thereto
(collectively, “Additional
Costs”);
provided,
however,
that
anything herein contained to the contrary notwithstanding, the Guarantor
shall
not be required to pay withholding taxes in excess of the amount
of withholding
taxes that would be payable by a financial institution that is both
(i) a
resident of a country with which Mexico has entered into a treaty
for the
avoidance of double taxation which is in effect in such country and
(ii) registered with the Ministry of Finance and Public Credit
of Mexico
(the “SHCP”)
for
purposes of Article 195(I) of the Mexican Income Tax Law (or
any successor
provision). If any Additional Costs are required by Law to be deducted
or
withheld from, or in respect of, any sum payable hereunder, the Guarantor
agrees
to pay, subject to the proviso in the immediately foregoing sentence,
the full
amount of such Additional Costs and such other additional amounts
as may be
necessary so that every payment of all amounts due hereunder, after
withholding
or deduction for or on account of any Additional Costs, will not
be less than
the amount provided for herein. Subject to the proviso in the first
sentence of
this Section 6.11,
the
Guarantor will furnish to the Subordinate Certificate Holders, within
sixty
(60) days after the date the payment of any Additional Costs
is due
pursuant to applicable law, copies of tax forms evidencing such payment
by the
Guarantor, duly stamped by or on behalf of the SHCP or any other
applicable
Government Agency. Subject to the proviso in the first sentence of
this
Section 6.11,
the
Guarantor will indemnify and hold harmless any Subordinate Certificate
Holder
and reimburse such Subordinate Certificate Holder promptly upon its
written
request, for the amount of any Additional Costs or other taxes described
above
which are levied or imposed on and paid by any Subordinate Certificate
Holder.
SECTION
1.2 Judgment.
The
obligations of the Guarantor, in respect of any sum due to any Subordinate
Certificate Holder hereunder shall, notwithstanding any judgment
in a currency
(the “Judgment
Currency”)
other
than the currency in which such sum was originally denominated (the
“Original
Currency”),
be
discharged only to the extent that following receipt by such Subordinate
Certificate Holder of any sum adjudged to be so due in the Judgment
Currency,
such Subordinate Certificate Holder, in accordance with normal banking
procedures, could purchase the Original Currency with the Judgment
Currency. If
the amount of Original Currency so purchased is less than the sum
originally due
to such Subordinate Certificate Holder, the Guarantor agrees, as
a separate
obligation and notwithstanding any such judgment, to indemnify such
Subordinate
Certificate Holder against such loss, and if the amount of Original
Currency so
purchased exceeds the sum originally due to the Subordinate Certificate
Holders,
such Subordinate Certificate Holder agrees to remit such excess to
the
Guarantor.
[SIGNATURE
PAGE FOLLOWS]
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IN
WITNESS WHEREOF, the Guarantor has caused this Guaranty to be duly executed
and
delivered by its officer thereunto duly authorized as of the date first above
written.
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VITRO,
S.A. DE C.V.,
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By
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By
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Name: Claudio
del Xxxxx
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Name: Xxxxxx
Xxxxxxxxx
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Title: Attorney-in-Fact
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Title: Attorney-in-Fact
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Address
and Fax Number for Notices:
Xxxxxxx
Xxxxxxx No. 400
Colonia
Xxxxx del Campestre
San
Xxxxx Xxxxx Xxxxxx, XX 00000, Xxxxxx
Fax:
x00 00 0000 0000
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Agreed
and Accepted:
COOPERATIEVE
CENTRALE
RAIFFEISEN-BOERENLEENBANK
B.A.,
"RABOBANK
INTERNATIONAL",
NEW
YORK BRANCH
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By:
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______________________________
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Name:
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Title:
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By:
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______________________________
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Name:
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Title:
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