CLOSED INVESTMENT TRUST AGREEMENT entered into this 9/th/ (ninth) day of
December, 1999 by the individuals whose names and personal information appear on
the signature page hereof and in the document attached hereto as Appendix A
(collectively, the "First Place Trust Founders-Beneficiaries"); and the
individuals whose names and personal information appear on the signature page
hereof and in the document attached hereto as Appendix B (collectively, the
"Second Place Trust Founders-Beneficiaries" and, together with the First Place
Trust Founders-Beneficiaries, the Trust Founders); Cemex, S.A. de C.V. (the
"Creditor Trust Beneficiary") and Citibank Mexico, S.A., Citibank Financial
Group, Trust Division (the "Trustee") pursuant to the following Recitals and
Clauses:
Recitals
I. Each of the First Place Trust Founders-Beneficiaries individually and
directly represent that following statements are true:
(a) He/she is an individual (i) whose personal information is given in the
document attached hereto as Appendix A; (ii) with full legal capacity to
contract and bind him/herself in the terms hereof; and (iii) is married
under the system indicated on the pertinent signature page hereof, and
therefore, if necessary, his/her spouse gives their consent to the signing
of this Agreement in the terms set forth on the signature pages.
(b) It is his/her will to enter into this Agreement and make the Initial
Contributions (as that term is defined below) indicated in the List of
Initial Contributions (as that term is defined below) to the trust.
(c) It is his/her will to designate Citibank, Mexico, S.A., Citibank Financial
Group, Trust Division, as Trustee, and instruct and authorize it to act in
accordance with the written instructions received from the Technical
Committee; and
(d) He/she is aware and agrees that (i) this Agreement will have no legal
effect whatsoever until the Trustee, the Creditor Trust Beneficiary and
each and every one of the Trust Founders and, if necessary, their
respective spouses, have granted their consent by signing the signature
pages hereof; and (ii) only the Trustee, the Creditor Trust Beneficiary and
the Trust Founders will be parties to this Agreement, and under no
circumstances will third parties be permitted to join.
(e) Each and every one of them are board members, management committee members
and/or executives of Cemex, S.A. de C.V. and/or any of its subsidiaries;
therefore, according to the Issue Document (as that term is defined below),
they have the right to participate in the acquisition of the Optional
Certificates of Purchase (as that term is defined below).
(f) He/she is fully aware and agrees that the Trustee is not
obligated in any way whatsoever under the terms and conditions of the Issue
Document.
II. Each of the Second Place Trust Founders-Beneficiaries individually and
directly represents that the following statements are true:
(a) He/she is an individual (i) whose personal information is given in the
document attached hereto as Appendix B; (ii) with full legal capacity to
contract and bind him/herself in the terms hereof; and (iii) is married
under the system indicated on the pertinent signature page hereof, and
therefore, if necessary, his/her spouse gives their consent to the signing
of this Agreement in the terms set forth on the signature pages.
(b) It is his/her will to enter into this Agreement and make the Initial
Contributions (as that term is defined below) indicated in the List of
Initial Contributions (as that term is defined below) to the trust.
(c) In terms of the corresponding Loan Documentation, he/she has received a
loan from the Creditor Trust Beneficiary in the amount of his/her Initial
Contribution (each one a Debt, and collectively, the Debts);
(d) It is his/her will to bind him/herself under the terms and conditions
hereof, on the understanding that he/she will acquire the rights
established herein up to the time of his/her Conversion (as that term is
defined below) into a First Place Trust Founder-Beneficiary as established
in Clause Eleven hereof;
(e) It is his/her will to designate Citibank, Mexico, S.A., Citibank Financial
Group, Trust Division, as Trustee, and instruct and authorize it to act in
accordance with the written instructions received from the Technical
Committee; and
(f) He/she is aware and agrees that (i) this Agreement will have no legal
effect whatsoever until the Trustee, the Creditor Trust Beneficiary and
each and every one of the Trust Founders and, if necessary, their
respective spouses, have granted their consent by signing the signature
pages hereof; and (ii) only the Trustee, the Creditor Trust Beneficiary and
the Trust Founders will be parties to this Agreement, and under no
circumstances will third parties be permitted to join.
(g) Each and every one of them are board members, management committee members
and/or executives of Cemex, S.A. de C.V. and/or any of its subsidiaries;
therefore, according to the Issue Document (as that term is defined below),
they have the right to participate in the acquisition of the Optional
Certificates of Purchase (as that term is defined below).
(h) He/she is fully aware and agrees that the Trustee is not obligated in any
way whatsoever under the terms and conditions of the Issue Document.
III. The Creditor Trust Beneficiary represents that the following statements are
true:
(a) It is a duly organized and validly existing corporation pursuant to Mexican
law;
(b) The individual who signs this Agreement in representation of the Creditor
Trust Beneficiary enjoys all the corporate powers and authorizations needed
to
sign this agreement in representation of the Creditor Trust Beneficiary,
and these powers and authorizations have not been revoked or limited in any
way whatsoever.
(c) Each of the Second Place Trust Founders-Beneficiaries will pay back his/her
Debt to the Creditor Trust Beneficiary in the terms established in the Loan
Documentation and the Creditor Trust Beneficiary will enjoy the Receiving
Rights belonging to the Initial Contributions made by the Second Place
Trust Founders-Beneficiaries in its capacity as Creditor Trust Beneficiary
until such time as the Debts are paid off in their entirety;
(d) It is the Creditor Trust Beneficiary's will to designate Citibank, Mexico,
S.A., Citibank Financial Group, Trust Division, as Trustee, and instruct
and authorize it to act in accordance with the written instructions
received from the Technical Committee; and
(f) It is aware and agrees that (i) this Agreement will have no legal effect
whatsoever until the Trustee, the Creditor Trust Beneficiary and each and
every one of the Trust Founders and, if necessary, their respective
spouses, have granted their consent by signing the signature pages hereof;
and (ii) only the Trustee, the Creditor Trust Beneficiary and the Trust
Founders will be parties to this Agreement, and under no circumstances will
third parties be permitted to join.
IV. The Trustee represents that the following statements are true:
(a) It is a duly organized and validly existing corporation pursuant to Mexican
law and is authorized to organize itself and operate as a full-service
banking institution.
(b) It accepts its designation as Trustee and agrees to take the steps needed
to comply with the Trust Purposes, following the instructions received from
the Technical Committee;
(c) Its assigned trustee has all the corporate powers and authorizations needed
to sign this Agreement in representation of the Trustee, and these powers
and authorizations have not been revoked or limited in any way whatsoever.
Based on the foregoing Recitals, the parties hereto agree to stipulate and
submit to the provisions of the following:
CLAUSES
One. - Definitions. The terms written with an initial capital letter in this
Agreement will have the following meanings:
Issue Document: the document formalized in public instrument number 7,941
dated November 29, 1999, executed before Lic. Xxxxxx Xxxxxxxx Xxxxxxxx,
Notary Public No. 122 practicing in Monterrey, N.L., Mexico, which records
the issue of the Optional Certificates of Purchase, and by virtue of which
the
Trustee will obtain the Receiving Rights.
Debt: will have the meaning established in paragraph (c) of Recital II
hereof.
Debts: will have the meaning established in paragraph (c) of Recital II
hereof.
Attorneys in Fact: will have the meaning established in sub-clause (b) of
Clause Fourteen hereof.
Initial Contributions: the sums of money in Pesos described in the List of
Initial Contributions, which the Trust Founders assign to the trust on the
Closing Date, by deposit to the Trust Account in the terms set forth in
Clause Two hereof.
Meeting Notice: will have the meaning established in sub-clause (a) of
Clause Thirteen hereof.
Banamex: Banco Nacional de Mexico, S.A., Full-Service Banking Institution,
Banamex-Accival Financial Group, Trust Division.
Stock Exchange: the Bolsa Mexicana de Valores, S.A. de C.V. [Mexican Stock
Exchange]
Proxy Letter: will have the meaning established in point (z) of sub-clause
(a) in Clause Thirteen hereof.
Cemex: Cemex, S.A. de C.V., a variable capital corporation duly organized
and validly existing pursuant to Mexican law.
OPCs: (i) the Ordinary Participation Certificates issued by Banamex in its
capacity as trustee under trust agreement number 111033-9 dated September
6, 1999, signed between Cemex as Trust Founder and Banamex as Trustee, each
one of which represents 3 (three) common ordinary shares representing the
capital stock of Cemex, 2 (two) of which are Series A shares and 1 (one) a
Series B share; or (ii) any other securities issued in replacement of, or
exchanged for such Ordinary Participation Certificates, that back or are
shares representing the capital stock of Cemex.
Acquired OPCs: the OPCs received by the Trustee from the Payment Vehicle in
exercise of the Receiving Rights.
Relevant OPCs: the OPCs that belong to each First Place Trust
Founder-Beneficiary and, if applicable, the Creditor Trust Beneficiary, and
that are the object of an Election Notice.
Technical Committee: will have the meaning established in Clause Seven
hereof.
Purchase Agreements: the purchase agreement or agreements for Optional
Certificates of Purchase signed between the Trustee and Petrocemex S.A. de
C.V. and/or Empresas Tolteca de Mexico, S.A. de C.V., following the
Instructions to Sign Purchase Agreement(s), in terms of the provisions of
sub-clause (a)3 of Clause Four and sub-clause(b)9(iv) of Clause Seven
hereof.
Stock Brokerage Agreement: the stock brokerage agreement that the Trustee
will sign with the Stock Broker, following the Instructions to Sign a
Brokerage Agreement, in terms of the provisions of sub-clause (a)4 of
Clause Four and sub-clause (b)9(ii) of Clause Seven hereof.
Consideration: the price payable in Pesos by the Trustee to Petrocemex,
S.A. de C.V. and/or Empresas Tolteca de Mexico, S.A. de C.V. to purchase
the Acquired Optional Certificates of Purchase under the Purchase
Agreement(s), by disposing of the part of the Initial Contributions that
the Technical Committee indicates to the Trustee in the Instructions to
Sign Purchase Agreement(s).
Trust Account: account number 0000000 that the Trustee maintains with
Citibank Mexico, S.A., Citibank Financial Group.
Securities Account: account number 8409 (eight thousand four hundred nine)
with Indeval that the Trustee maintains on the Closing Date.
Receiving Rights: the Trustee's right to receive the Intrinsic Value or, if
applicable, the Payment for Early Maturity with regard to the Acquired
Optional Certificates of Purchase in the terms set forth in the Issue
Document.
Business Day: any day (excluding Saturdays and Sundays) on which lending
institutions in Mexico City, Federal District and the Stock Exchange are
open to the public, and are not authorized or required to close by law,
regulation or decree.
Loan Documentation: the IOU's signed by each of the Second Place Trust
Founders-Beneficiaries in favor of the Creditor Trust Beneficiary, which
document each Debt.
Dollars and USD: the currency of legal tender in the United States of
America.
Closing Date: the date on which the Trustee, the Creditor Trust
Beneficiary, each and every one of the Trust Founders and, if necessary,
their respective spouses, grant their consent to the formalization of this
Agreement by signing its signature pages.
Exercise Date: December 13, 2002, the date on which the Trustee will be
authorized to exercise the Receiving Rights, if applicable, pursuant to the
provisions of the Issue Document, except if there is an Early Maturity
Date.
Maturity Date: the date on which the issue of Optional Certificates of
Purchase originally matures; i.e. December 13, 2002.
Early Maturity Date: will have the meaning given in
Clause Fourteen of the Issue Document.
Trust purposes: all the purposes established in Clause Four hereof.
Ideval: S.D. Indeval, S.A. de C.V., Institution for Securities Deposits
Instructions to Sign Purchase Agreement(s): will have the meaning
established in sub-clause (a) 3 of Clause Four hereof
Instructions to Sign a Brokerage Agreement: will have the meaning
established in sub-clause (a) 4 of Clause Four hereof.
Disposal Instructions: will have the meaning established in sub-clause (b)
5 of Clause Seven hereof.
Distribution Instructions: will have the meaning established in sub-clause
(b) 6 of Clause Seven hereof.
Instructions to Deliver OPCs: the instructions to follow the procedure
outlined in sub-clause (a) 1 of Clause Eleven hereof that each First Place
Trust Founder-Beneficiary and, if applicable, the Creditor Trust
Beneficiary includes in an Election Notice.
Instructions to Deliver Optional Certificates of Purchase: the instructions
to follow the procedure outlined in sub-clause (a) 1 of Clause Nine hereof
that each First Place Trust Founder-Beneficiary includes in a Distribution
Notice.
Payment Instructions: will have the meaning established in sub-clause (a) 2
of Clause Four hereof.
Instructions to Sell OPCs: the instructions to follow the procedure
outlined in sub-clause (a) 2 of Clause Ten hereof that each First Place
Trust Founder-Beneficiary and, if applicable, the Creditor Trust
Beneficiary, includes in an Election Notice.
Instructions to Sell Optional Certificates of Purchase: the instructions to
follow the procedure outlined in sub-clause (a) 2 of Clause Nine hereof
that each First Place Trust Founder-Beneficiary and, if applicable, the
Creditor Trust Beneficiary, includes in a Disposal Notice.
Stock Broker: the stock broker with whom the Trustee signs the Stock
Brokerage Agreement.
Disposal Notice: will have the meaning established in sub-clause (a) of
Clause Nine hereof.
Election Notice: will have the meaning established in sub-clause (s) of
Clause Ten hereof.
Liquidation Notice: will have the meaning established in Clause Five
hereof.
Payment for Early Maturity: will have the meaning attributed to that term
in Clause Sixteen of the Issue Document.
Trust Assets: collectively, (i) each and every one of the Initial
Contributions from the Trust Founders that are deposited in the Trust
Account; (ii) the Receiving Rights and all other rights of the Trustee
pursuant to the Issue Document; (iii) the Acquired Optional Certificates
and, if applicable, the proceeds from the sale of the Relevant Optional
Certificates up to the time that they are distributed to the First Place
Trust Founders-Beneficiaries, as provided for herein; and (iv) the Acquired
OPCs and, if applicable, the proceeds from the sale of the Relevant OPCs up
to the time that they are distributed to the First Place Trust
Founders-Beneficiaries or the Creditor Trust Beneficiary, as provided for
herein.
Pesos: the currency of legal tender in Mexico.
Internal Policies: will have the meaning established in sub-clause (n) of
Clause Twenty One hereof.
Exercise Price: the price established in the Issue Document in relation to
which the differences in favor of the Trustee on the Exercise Date or the
Early Maturity Date will be determined, as applicable.
Premium: the premium payable in Pesos by the Trustee to Cemex for the
Acquired Optional Certificates of Purchase pursuant to the Issue Document;
by disposing of the part of the Initial Contributions that the Technical
Committee indicates to the Trustee in the Payment Instructions.
List of Initial Contributions: the list that reflects the individual
Initial Contributions from each of the Trust Founders that will be kept by
the Trustee and the Technical Committee.
List of Beneficiaries: will have the meaning established in Clause Six
hereof.
Optional Certificates of Purchase: the optional certificates of purchase
redeemable in cash, with European exercise, and with the possibility of
early maturity for the OPCs, issued by Cemex pursuant to the Issue
Document.
Acquired Optional Certificates of Purchase: the Optional Certificates of
Purchase acquired by the Trustee by paying the Premium and the
Consideration.
Relevant Optional Certificates of Purchase: the Acquired Optional
Certificates of Purchase belonging to each First Place Trust
Founder-Beneficiary that are the object of a Disposal Notice.
Conversion: will have the meaning established in Clause Eleven hereof.
Intrinsic Value: the positive difference between the Exercise Price and the
mathematical average of 5 (five) consecutive Business Days, ending on the
day when the Intrinsic Value of the Closing Price (as that term is defined
in the Issue Document) for the OPCs on the Stock Exchange is determined,
converted into Dollars (pursuant to the provisions applicable to conversion
into Dollars established in the Issue Document).
Payment Vehicle: trust agreement number 111040-1 between Banamex and Cemex,
dated November 29, 1999.
Two. Creation of the Trust. (a) Each of the Trust Founders hereby directly or
indirectly deposits the Initial Contributions into the Trust Account, in the
proportions indicated in the List of Initial Contributions, in order to meet the
Trust Purposes.
The Trustee will confirm the sums that it has received in the Trust Account as
Initial Contributions to the Technical Committee no later than 2 (two) Business
Days after the date on which the total amount of the Initial Contributions
described in the List of Initial Contributions has been duly deposited in the
Trust Account.
Three. Parties to the Trust. The parties hereto are: (i) the First Place Trust
Founders-Beneficiaries; (ii) the Second Place Trust Founders-Beneficiaries;
(iii) the Creditor Trust Beneficiary, Cemex, S.A. de S.V., with regard to the
Debts of the Second Place Trust Founders-Beneficiaries under the Loan
Documentation; and (iv) the Trustee, Citibank Mexico, S.A., Citibank Financial
Group, Trust Division. Under no circumstances will third parties be allowed to
join.
Four. Trust Purposes. (a) The Trust Founders-Beneficiaries hereby instruct and
authorize the Trustee to take the actions and steps needed to meet the following
Trust Purposes:
1. Open the Trust Account and the Securities Account; receive and dispose of
the Initial Contributions; acquire, receive and dispose of the Acquired
Optional Certificates of Purchase; receive and dispose of the Acquired OPCs
and receive and dispose of the appropriate sums of cash in the event that
fractions of OPCs exist and are determined in the calculations for the
Intrinsic Value or Payment for Early Maturity, as applicable, for the
Optional Certificates of Purchase, or when following any Instructions to
Sell OPCs or any Instructions to Sell Optional Certificates of Purchase, in
accordance with the written instructions that the Trustee receives from the
Technical Committee, in terms of the provisions of Clauses Nine and Ten
hereof.
2. Pay the Premium to Cemex as consideration for the acquisition of the
Acquired Optional Certificates of Purchase in the terms set forth in the
Issue Document, by disposing of a part of the Initial Contributions
deposited in the Trust Account, following the written instructions issued
by the Technical Committee, utilizing for that purpose the instruction form
attached hereto as Appendix C (the Payment Instructions).
3. Pay the Consideration to Petrtocemex, S.A. de C.V. and/or Empresas Tolteca
de Mexico, S.A. de C.V. for acquisition of the Acquired Optional
Certificates of Purchase under the Purchase Agreement(s), by disposing of a
part of the Initial Contributions deposited in the Trust Account and
entering into the Purchase Agreement(s), all under the terms and conditions
indicated in writing by the Technical Committee to the Trustee, utilizing
for that purpose the instruction form attached hereto as Appendix D
(Instructions to Sign Purchase Agreement(s) );
4. Enter into the Stock Brokerage Agreement under the terms and conditions
indicated in writing by the Technical Committee, utilizing for that purpose
the instruction form attached hereto as Appendix E (Instructions to the
Sign Brokerage Agreement), so that the Stock Broker can sell or buy the
Optional Certificates of Purchase or OPCs.
5. Exercise the voting rights belonging to the Acquired Optional Certificates
of Purchase, in accordance with the provisions of Clause Thirteen hereof,
granting and delivering to the individual or individuals indicated by the
Technical Committee the powers of attorney needed to vote for the Acquired
Optional Certificates of Purchase at an Optional Certificate of Purchase
Holders' Meeting.
6. After deducting the expenses created by this Agreement, including, but not
limited to, the Trustee's expenses and fees, revert and/or distribute the
Trust Assets to the First Place Trust Founders-Beneficiaries and, if
applicable, the Creditor Trust Beneficiary, in the terms and proportions
indicated by the Technical Committee in the Liquidation Notice.
(b) The Trustee will record the movements in the Trust Account and the
Securities Account in its own accounting books and in separate accounting books,
and keep those records and the List of Initial Contributions at the Trustee's
domicile indicated on the pertinent signature page hereof, making them available
to the Technical Committee, the Trust Founders and the Creditor Trust Founder.
(c) The Trust Founders and Creditor Trust Beneficiary expressly agree and
recognize that the Trustee will only be obligated to act in accordance with the
written instructions it receives from the Technical Committee, in the manner and
all other terms expressly set forth herein.
(d) The Trustee will open and keep an itemized record of (i) the Initial
Contributions deposited into the Trust Account; and (ii) the distributions from
the Trust Account and the Securities Account that the Trustee makes to the First
Place Trust Founders-Beneficiaries and the Creditor Trust Beneficiary following
instructions from the Technical Committee.
(e) The Trustee will keep the List of Beneficiaries and a list of the Trust
Founders and the Creditor Trust Beneficiary which establishes: (i) the
participation that of each of the Trust Founders and the Creditor Trust
Beneficiary has in the Trust Assets, including but not limited to Receiving
Rights, on
the understanding that the Creditor Trust Beneficiary's share will always be
equal to the sum of the Initial Contributions from those Second Place Trust
Founders-Beneficiaries who have not been the object of a Conversion; (ii) the
Fund Assets that correspond to the Initial Contributions from each of the Trust
Founders that the Trustee has disposed of following instructions from the
Technical Committee, in order to pay the Premium and the Consideration; (iii)
the number of Acquired Optional Certificates of Purchase that belong to each of
the First Place Trust Founders-Beneficiaries, if applicable; (iv) the number of
Acquired OPCs that belong to each of the First Place Trust
Founders-Beneficiaries, if applicable, and to the Creditor Trust Beneficiary, if
applicable; and (v) the Second Place Trust Founders-Beneficiaries that are
converted into First Place Trust Founders-Beneficiaries pursuant to the
stipulations of Clause Eleven hereof.
(f) The Trustee will submit an overall monthly report to the Technical Committee
on the general status of the Trust Assets. The Trustee will also furnish the
Technical Committee with a bi-annual report that establishes the participation
of each of the Trust Founders and the Creditor Trust Beneficiary in the Trust
Assets. In the event that the Technical Committee, the Trust Founders or the
Creditor Trust Beneficiary request any type of information on the Trust Assets,
the Trustee will furnish that information within no more than 10 (ten) Business
Days after receiving the request.
Five. Term of the Agreement. After all the expenses generated in connection
herewith have been covered, including but not limited to the Trustee's expenses
and fees, this Agreement will terminate for any of the following reasons: (i)
because the Trust Purposes have been met; (ii) because the Trust Assets have
reverted and/or been distributed to the First Place Trust Founders-Beneficiaries
and the Creditor Trust Beneficiary following the instructions that the Technical
Committee gives the Trustee in terms of the notice form attached hereto as
Appendix F (the Liquidation Notice); (iii) because the Trustee resigns in the
terms set forth in Clause Twenty One hereof; (b) because the Agreement is
expressly revoked in writing and the Technical Committee notifies the Trustee of
this decision, which must be signed by all regular members of that Committee; or
(v) for the reasons outlined in Article 357 of the General Law on Credit
Instruments and Transactions that are compatible with the nature hereof; but in
any event, within a term that will not exceed one (1) month, counted as of the
Maturity Date.
Six. Beneficiaries in the event of Death. Each of the Trust Founders designates
the individual or individuals identified in Appendix G hereof (the List of
Beneficiaries) as their beneficiaries in the event of death. The Technical
Committee will be responsible for keeping the List of Beneficiaries following
the written instructions it receives from the Trust Founders. The Trust Founders
expressly acknowledge that in all matters relating to the List of Beneficiaries,
the Trustee's responsibility is always limited to following the written
instructions it receives from the Technical Committee.
Seven. Technical Committee. (a) Pursuant to the provisions of the third
paragraph of Article 80 of the Lending Institutions Act, the Trust Founders and
the Creditor Trust Beneficiary hereby create a Technical Committee (the
Technical Committee) made up of three regular members and three alternate
members, each of whom may stand in for
any of the regular members, pursuant to the following:
1. The Technical Committee will hold a meeting when one is called by any of
its members or the Trustee and is personally notified in writing to each
member of the Technical Committee at least 5 (five) Business Days prior to
the date set for the respective meeting;
2. The Chairman of the Technical Committee will preside over the meetings; or,
in his absence, whoever is designated by the attendees. Meetings will be
considered valid with the attendance of all members, and decisions will
only be valid with the unanimous vote of the committee members, on the
understanding that in the event of a tie, the Chairman will cast the
deciding vote. The Secretary of the Technical Committee will prepare the
minutes for each meeting to record to decisions that were made. A copy of
that document, duly signed by all members who attended the meeting, will be
delivered to the Trustee, with the precise instructions that are in order,
as applicable.
3. For all matters related to this Agreement, unanimous decisions made by
committee members outside the Technical Committee meetings will have the
same validity as if they had been adopted at a Technical Committee Meeting,
providing they are confirmed in a written document prepared by the
Technical Committee Secretary. A copy of that document, duly signed by all
members, will be delivered to the Trustee, with the precise instructions
that are in order, as applicable.
4. The Trustee and the advisors that the Technical Committee deems appropriate
may attend the Technical Committee meetings, on the understanding that they
will have the right to speak, but not to vote.
5. In the event of resignation, disability, death or any other situation that
results in the permanent absence of any of the Technical Committee members,
the Technical Committee itself will promptly name the successor or
successors needed to have a minimum of two members at all times. The
Chairman of the Technical Committee will be responsible for providing the
Trustee with a written notice containing the names, personal information
and sample signatures of all committee members; and
6. The position of Technical Committee Member will be honorific.
(b) The Technical Committee:
1. will open and keep an itemized record of (i) the Initial Contributions from
the Trust Founders; and (ii) the distributions from the Trust Account and
the Securities Account that the Trustee makes to the First Place Trust
Founders-Beneficiaries and the Creditor Trust Beneficiary following
instructions from the Technical Committee.
2. will keep the List of Beneficiaries and a list of the Trust Founders and
the Creditor Trust Beneficiary which establishes (i) the participation of
each of the Trust Founders and the Creditor Trust Beneficiary in the Trust
Assets, including but not limited to the Receiving Rights, on the
understanding that the Creditor Trust Beneficiary's share will always be
equal to the sum of the Initial Contributions from those Second Place Trust
Founders-
Beneficiaries who have not been the object of a Conversion; (ii) the Fund
Assets corresponding to the Initial Contributions from each of the Trust
Founders that the Trustee disposes of following instructions from the
Technical Committee, in order to pay the Premium and the Consideration;
(iii) the number of Acquired OPCs that belong to each of the First Place
Trust Founders-Beneficiaries, if applicable; (iv) the number of Acquired
OPCs that belong to each of the First Place Trust Founders-Beneficiaries,
if applicable, and to the Creditor Trust Beneficiary, if applicable; and
(v) the Second Place Trust Founders-Beneficiaries that are converted into
First Place Trust Founders-Beneficiaries pursuant to the stipulations of
Clause Eleven hereof.
3. will help the Trustee prepare, update and confirm the lists and other
documents described in sub-clauses (b), (d), and (e) of Clause Four hereof.
4. will keep a file that contains the originals of all the meeting minutes and
the unanimous decisions of the Technical Committee.
5. if applicable, will instruct the Trustee in writing to deliver the Relevant
Optional Certificates of Purchase to the First Place Trust
Founders-Beneficiaries or to sell those Certificates (and deliver the
proceeds from the sale to them) in the manner indicated by the Technical
Committee, utilizing for that purpose the instruction form attached hereto
as Appendix H (each of these instructions called Disposal Instructions). In
any case, the form must be signed by the Chairman of the Technical
Committee or whoever is designated as his special delegate for such
purposes by the Technical Committee.
6. will instruct the Trustee to proceed to receive the Acquired OPCs from the
Payment Vehicle on the Maturity Date or the Early Maturity Date, as
applicable, as well as the sums of cash that are due in the event that
fractions of OPCs exist and are determined in the calculations for the
Intrinsic Value or the Payment for Early Maturity, as applicable, for the
Optional Certificates of Purchase, and subsequently distribute them to the
First Place Trust Founders-Beneficiaries and, if applicable, the Creditor
Trust Beneficiary, in the manner indicated by the Technical Committee,
utilizing for that purpose the instruction form attached hereto as Appendix
I (each of these instructions called Distribution Instructions). In any
case, the form must be signed by the Chairman of the Technical Committee or
whoever is designated as his special delegate for such purposes by the
Technical Committee.
7. will promptly provide the Trustee with all information that the Trustee
requires or requests in relation to this Agreement or the Issue Document;
8. may periodically request information and documentation from the Trustee on
the status of the Trust Assets;
9. will submit to the Trustee: (i) the Liquidation Notice pursuant to the
provisions of Clause Five hereof; (ii) the Instructions to Sign a Brokerage
Agreement; (iii) the Payment Instructions; (iv) the Instructions to Sign
Purchase Agreement(s); and (v) the Meeting Notice.
10. may, pursuant to the provisions of paragraph (d) below, formalize all the
modifications hereto with the Trustee and the Creditor Trust
Beneficiary that it deems advisable on for the benefit of the Trust
Founders on their behalf, always in writing.
11. in general, exercise all the powers needed or appropriate for achieving the
Trust Purposes.
(c) The Trust Founders-Beneficiaries designate the following individuals and the
regular and alternate members of the Technical Committee:
Regular Members Position
--------------- --------
Engineer Xxxxxxx Xxxxxxx Xxxxxxxx Chairman
Lic. Xxxxx Xxxxxxx Xxxxxx Secretary
Engineer Xxxxxxx X. Xxxxxx Xxxxxxx Regular Member
Alternates
----------
Engineer Xxxxxxxx Xxxxxxx Xxxxxxxxx
CPA Xxxxxx Xxxxxxx Xxxxxxx
Lic. Xxxx Xxxxxxxx Xxxxxxx Xxxxxxxx
Lic. Xxxxxxx Xxxxxx Xxxxxx
Engineer Xxxxxx Xxxxxxx Xxxxxxxxx
Lic. Xxxx Del Xxxxx Xxxxxx
The person information and sample signature of each Technical Committee member,
both regulars and alternates, as well as their official addresses for hearing
and receiving all types of announcements and notices related hereto are
contained in the document which, duly signed by the Technical Committee
Chairman, is attached hereto as Appendix J.
(d) the Trust Founders hereby grant the Technical Committee commercial agency so
that, in the name and representation of the Trust Founders, it may formalize in
writing with the Trustee and the Creditor Trust Beneficiary all those
modifications hereto or other contracts or agreements deriving herefrom that it
deems advisable for the benefit of the Trust Founders. The parties agree that
the commercial agency will not earn any compensation whatsoever for the
Technical Committee or any of its members; therefore, the Technical Committee
and each of its members expressly and irrevocable waive their rights to any
compensation that may result from this duty.
Eight. Payment of Expenses and Taxes. The Trustee is authorized to deduct from
the Trust Assets the sums of money needed to pay the reasonable, duly documented
expenses and taxes that may result from the management of the Trust Assets. The
Trust Founders and Creditor Trust Beneficiary will be liable for all expenses
and taxes deriving herefrom, as stipulated in sub-clause (a) of Clause Thirteen,
Clause Fourteen and sub-clause (g) of Clause Twenty One hereof.
Nine. Disposal of Optional Certificates of Purchase. (a) On any date prior to
the Exercise Date or the Early Maturity Date that is a Business Day, any First
Place Trust Founder-Beneficiary may ask the Technical Committee
to deliver or sell, as applicable, the Relevant Optional Certificates of
Purchase belonging to him/her by sending the Technical Committee an irrevocable
individual notice, using the notification format attached hereto as Appendix K
(each of these notices a "Disposal Notice). Each Disposal Notice will establish:
(i) irrevocable instructions to the Technical Committee to send the Trustee the
Disposal Instructions needed to deliver or sell, as applicable, the Relevant
Optional Certificates of Purchase belonging to that First Place Trust
Founder-Beneficiary; and (A) Instructions to Deliver Optional Certificates of
Purchase, or (B) Instructions to Sell Optional Certificates of Purchase.
1. Subject to the provisions of sub-clause (c) of this Clause (Nine), whenever
a Disposal Notice contains Instructions to Deliver Optional Certificates of
Purchase, the First Place Trust Founder-Beneficiary in question will (i)
irrevocably instruct the Technical Committee to in turn instruct the
Trustee, through the appropriate Disposal Instructions, to take the actions
and steps needed for the Trustee to receive the corresponding Relevant
Optional Certificates of Purchase; (ii) deposit the amount of USD 40.00
(forty US dollars and 00/100) in the Trust Account to cover the expenses,
commissions and other costs resulting or that may result from the receipt
and deposit of the Relevant Optional Certificates of Purchase; and (iii)
give the information on the account into which the Trustee should deposit
the Relevant Optional Certificates of Purchase.
2. Subject to the provisions of paragraph (c) of this Clause (Nine), whenever
a Disposal Notice contains Instructions to Sell Optional Certificates of
Purchase, the First Place Trust Founder-Beneficiary in question will
irrevocably instruct the Technical Committee to in turn instruct the
Trustee, through the appropriate Disposal Instructions, to sell the
Relevant Optional Certificates of Purchase through the Stock Broker, and
use the proceeds from their sale in the following order: (i) first, to
cover the expenses, commissions and all other costs resulting or that may
result from the receipt and sale of the Relevant Optional Certificates of
Purchase; and (ii) the remainder, if any, will be deposited in Pesos into
the account that the First Place Trust Founder-Beneficiary indicated to the
Technical Committee for that purpose in the Instructions to Sell Optional
Certificates of Purchase contained in the respective Disposal Instructions.
The First Place Trust Founder Beneficiary must identify this account in the
Disposal Notice.
(b) The Technical Committee will send the Trustee Disposal Instructions in which
it (i) instructs the Trustee to take the actions indicated by the Technical
Committee in the respective Disposal Instructions, following each set of
Instructions to Deliver Optional Certificates of Purchase or Sell Optional
Certificates of Purchase, as applicable; and (ii) specifies the number of
Relevant Optional Certificates of Purchase to be disposed of.
(c) The Trustee will dispose of the Certificates in the terms indicated by the
Technical Committee in each set of Disposal Instructions, on the
understanding, however, that the Trustee will transfer the Relevant
Optional Certificates of Purchase, or the proceeds from their sale, as
applicable, to the account(s) indicated in each set of Disposal
Instructions, within 2 (two) Business Days after the date of which the
Trustee receives the Relevant Optional Certificates of Purchase or the
proceeds from their sale, as applicable.
(d) It is expressly agreed that the Trustee is released from any and all
liability that results or may result from the sale and delivery of the
Relevant Optional Certificates of Purchase as provided for in this Clause.
Each of the Trust Founders and the Creditor Trust Beneficiary jointly,
severally and unlimitedly agrees to indemnify and hold the Trustee harmless
for any liability that results or may result from the Trustee's acts or
omissions in carrying out the instructions given by the Technical
Committee.
Ten. Exercise of the Receiving Rights; Distribution of Acquired OPCs
If applicable, the exercise of the Receiving Rights by the Trustee and through
the Stock Broker is mandatory and does not require instructions from the Trustee
to the Stock Broker as established in the Issue Document. With regard to the
distribution of the Acquired OPCs, the parties hereby agree to the following
procedure:
(a) At least five Business Days in advance of the Exercise Date or, if
applicable, within five Business Days following the Early Maturity Date,
the Technical Committee will receive an irrevocable individual notice from
each First Place Trust Founder-Beneficiary, using the notice form attached
hereto as Appendix L (each of these notices an Election Notice). Each
Election Notice will establish: (i) irrevocable instructions to the
Technical Committee to furnish the Trustee with Distribution Instructions
for proper distribution of the Acquired OPCs; and (ii) (A) Instructions to
Deliver OPCs, or (B) Instructions to Sell OPCs.
1. Subject to the provisions of paragraph (c) of this Clause (Ten),
whenever an Election Notice contains Instructions to Deliver OPCs, the
First Place Trust Founder-Beneficiary in question will (i) irrevocably
instruct the Technical Committee to in turn instruct the Trustee,
through the appropriate Distribution Instructions, to take the
actions and steps needed for the Trustee to receive the corresponding
Relevant OPCs; (ii) deposit the amount of USD 40.00 (forty US dollars
and 00/100) in the Trust Account to cover the expenses, commissions
and other costs resulting or that may result from the receipt and
deposit of the Relevant OPCs; and (iii) give the information on the
account into which the Trustee should deposit the Relevant OPCs.
2. Subject to the provisions of paragraph (c) of this Clause (Ten),
whenever an Election Notice contains Instructions to Sell OPCs, the
First Place Trust Founder-Beneficiary in question will irrevocably
instruct the Technical Committee to in turn instruct the Trustee,
through the appropriate Distribution Instructions, to sell the
Relevant OPCs in question through the Stock Broker, and use the
proceeds
from their sale in the following order: (i) first, to cover the
expenses, commissions and all other costs resulting or that may result
from the receipt and sale of the Relevant OPCs; and (ii) the
remainder, if any, will be deposited in Pesos into the account that
the First Place Trust Founder-Beneficiary indicated to the Technical
Committee for that purpose in the Instructions to Sell OPCs contained
in the respective Distribution Instructions. The First Place Trust
Founder Beneficiary must identify this account in the Election Notice.
3. If there are Debts that remain to be paid off by any Second Place
Trust Founder-Beneficiary, the Creditor Trust Beneficiary will be the
only party authorized to deliver the corresponding Election Notice to
the Technical Committee for the Relevant OPCs that belonged to the
Second Place Trust Founders-Beneficiaries, pursuant to the provisions
of this sub-clause (a).
(b) The Technical Committee will furnish the Trustee with a single set of
Distribution Instructions within five Business Days after the Exercise Date
or, if applicable, the Early Maturity Date, in which the Technical
Committee: (i) specifies the total number of Acquired OPCs that the Trustee
should receive from the Payment Vehicle in exercise of the Receiving Rights
and, if applicable, the appropriate sums of cash in the event that
fractions of OPCs exist and are determined in the calculations for the
Intrinsic Value or Payment for Early Maturity, as applicable, for the OPCs,
as well as the number of Acquired OPCs that belong to each First Place
Trust Founder-Beneficiary and, if applicable, the Creditor Trust
Beneficiary; and (ii) instruct the Trustee to take the actions indicated by
the Technical Committee in the Distribution Instructions, following each
set of Instructions to Deliver OPCs or Sell OPCs, as applicable.
(c) The Trustee will distribute the Acquired OPCs in the terms indicated by the
Technical Committee in each set of Distribution Instructions, on the
understanding, however, that the Trustee will transfer the Relevant OPCs,
or the proceeds from their sale, as applicable, to the account(s) indicated
in each set of Distribution Instructions, within 2 (two) Business Days
after the date of which the Trustee receives the Relevant OPCs or the
proceeds from their sale, as applicable.
(d) It is expressly agreed that the Trustee is released from all and any
liability that results or may result from the sale and delivery of the
Relevant OCPs as provided for in this Clause. Each of the Trust Founders
and the Creditor Trust Beneficiary jointly, severally and unlimitedly
agrees to indemnify and hold the Trustee harmless for any liability that
results or may result from the Trustee's acts or omissions in carrying out
the instructions given by the Technical Committee.
Eleven. Conversion of Second Place Trust Founders-Beneficiaries. Within 5
Business Days after the date on which any Second Place Trust Founder-Beneficiary
completely and satisfactorily pays off his/her Debt to the Creditor Trust
Beneficiary, the Creditor Trust Beneficiary will so notify the Technical
Committee so that it takes note and records the conversion of those Second Place
Trust Founders-Beneficiaries into First Place Trust Founders-Beneficiaries for
the purposes of this Agreement
(each a Conversion). The Technical Committee will also inform the Trustee of the
Conversion within 5 Business Days after the date on which it received notice of
the Conversion in question, so that the Trustee takes note and record the
Conversion.
Twelve. Authorizations for the Trustee. The Trust Founders and the Creditor
Trust Beneficiary hereby irrevocably authorize and instruct the Trustee to
proceed in the terms set forth herein, including, but not limited to, the
provisions of Clauses Nine and Ten, following prior written instructions from
the Technical Committee.
Thirteen. Optional Certificate of Purchase Holders' Meetings. In the event that
an Optional Certificate of Purchase Holders' meeting is called and held as
provided for in Clause Twenty Three of the Issue Document, the Trustee will
exercise the voting rights deriving from the Acquired Optional Certificates of
Purchase, as follows:
(a) The Technical Committee will give the Trustee written notice of each
Optional Certificate of Purchase Holders' meeting, together with (x) a copy
of the corresponding meeting notice that contains the agenda for that
meeting; (y) a request to the Trustee to grant the individual or
individuals indicated by the Technical committee the proxy letter(s) needed
so that they may attend and exercise the voting rights deriving from the
Acquired Optional Certificates of Purchase in question; and (z) a draft of
the proxy letter (the Proxy Letter) which identifies the agents to be
designated and gives a precise indication of the decisions that the meeting
intends to make for each of the points on the agenda, as well as the way in
which the Acquired Optional Certificates of Purchase propose to vote on
each of those points on the agenda (the documents described in paragraphs
(x), (y) and (z) above, collectively the "Meeting Notice" and will be
prepared in the terms of the notice form attached hereto as Appendix M).
The Technical Committee will issue a Meeting Notice to the Trustee no later
than 3 (three) Business Days before the day set for that meeting.
(b) The Trustee will not have any liability whatsoever if the voting rights
deriving from the Acquired Optional Certificates of Purchase cannot be
exercised at any Optional Certificate of Purchase Holders' meeting because
a Meeting Notice was not delivered on time or for any other reason.
Fourteen. Defense of the Trust Assets. (a) The Trustee must always act as a good
head of family, and must not abandon or leave unprotected or allow or cause any
depreciation of the Trust Assets. The Trust Founders and, if applicable, the
Creditor Trust Beneficiary will be responsible for the punctual and timely
payment of any taxes, contributions, fees and charges imposed or collected by
any government agency that are applicable to or derive from this Agreement, the
Issue Document, the sale or delivery of the Relevant Optional Certificates of
Purchase, the sale or delivery of the Acquired OPCs, or the Trust Assets. Each
First Place Trust Founder-Beneficiary and, if applicable, the Creditor Trust
Beneficiary must also furnish the Trustee with reliable proof that such taxes,
contributions, fees and charges have been paid in the proper time and form.
(b) If defense of the Trust Assets is required, including but not limited to
defense of the Initial Contributions, the Receiving Rights, the Acquired
Optional Certificates of Purchase or the Acquired OPCs, the Trustee will only be
obligated to grant power(s) of attorney to the individual(s) designated by the
Technical Committee (the Attorneys in Fact), without assuming any liability
whatsoever for their actions. This stipulation will be transcribed in the
document containing the power(s) of attorney that are conferred, providing the
Attorneys in Fact agree that the expenses and fees for their work will be
directly paid by the Trust Founders and, if applicable, the Creditor Trust
Beneficiary, and that the Trustee will not be liable for any of those items.
Fifteen. Expenses, Costs, Taxes, Commissions and Fees. The Trust
Founders-Beneficiaries and, if applicable, the Creditor Trust Beneficiary will
be solely responsible for all reasonable and duly documented expenses,
commissions, taxes and fees resulting from the preparation, execution,
notification and, if applicable, recording of this Agreement, as well as for any
modification thereof, and for any act or document that must be prepared, signed
or notified pursuant hereto, including but not limited to the fees of the
Trustee's legal advisors, as well as all reasonable and duly documented expenses
incurred by the Trustee in meeting its obligations and exercising its rights
hereunder.
For its part in this Agreement, the Trust Founders and, if applicable, the
Creditor Trust Beneficiary will pay the Trustee the following commissions:
1. The Trustee will receive the amount of USD 6,000.00 (six thousand
Dollars and 00/1000) for its designation as Trustee and for the
execution of this Agreement. The Trust Founders will pay this
commission to the Trustee one time only on the Closing Date.
2. For managing the Trust Assets, the amount of USD 18,000.00 (eighteen
thousand Dollars and 00/100) a year, payable bi-annually and in
advance. The first of these payments will be made on the Closing Date,
and the subsequent payments within the first 5 (five) Business Days of
the months of December and May each year for the duration of this
Agreement.
3. The amount of USD 40.00 (forty Dollars and 00/100) for each disposal
pursuant to Clause Nine and for each distribution made pursuant to
Clause Ten for each of the First Place Trust Founders-Beneficiaries
and, if applicable, the Creditor Trust Beneficiary.
4. An amount equal to .5 (zero point five) base points calculated on the
value of the Acquired Optional Certificates of Purchase, payable
monthly, for the cost of custody of the Acquired Optional Certificates
of Purchase.
Each and every one of the commissions described above will be subject to the
Value Added Tax, and must be paid exclusively in Dollars and same-day funds,
outside Mexican territory, by electronic transfer to account number 00000000
with Citibank NA, New York Branch, ABA 000000000, Re: Cemex 4, Attention:
Xxxxxxx Xxxxxx, in the
terms set forth in the document which, duly signed, is delivered to the Trustee
on the Closing Date.
Sixteen: Notices and Notifications. Except as provided for in sub-clause (a) of
Clause Twenty One hereof, any notice or notification that the parties must or
wish to make in connection herewith must be made in writing and delivered (i)
personally, with acknowledgement of receipt; (ii) by special messenger service,
with acknowledgement of receipt; or (iii) by fax, followed up by special
messenger service or personal notification, with acknowledgement of receipt. All
notices and notifications must be delivered to the domiciles and fax numbers
described on the signature pages hereof. The above notwithstanding, each and
every one of the instructions or notices that the Technical Committee must or
wishes to make in connection herewith must be accompanied by a copy of the
minutes of the meeting at which those instructions or notices were authorized,
duly signed by the Technical Committee members that attended the meeting; or by
all the regular members, only for unanimous decisions adopted outside a meeting.
Seventeen: Assignment. The rights and obligations deriving from this Agreement
may not be assigned or transferred to any third party without the prior written
consent of all parties hereto.
Eighteen: Appendices and Headings. All documents attached hereto or referenced
herein form an integral part of this Agreement as though they were inserted
verbatim. The titles and headings of the Clauses are utilized for reference only
and will not affect the
interpretation hereof.
Nineteen: Applicable Law and Competent Courts. For all matters relative to the
interpretation and performance of this Agreement, the parties expressly and
irrevocably submit to the applicable Mexican laws and to the jurisdiction of the
competent courts of Mexico, Federal District, expressly and irrevocably waiving
any other forum to which they may have a right by reason of their present or
future domiciles, or for any other reason.
Twenty. Fax Communications. The Trustee is authorized to take the actions or
steps ordered by the Technical Committee in communications transmitted by fax,
providing they verify the authenticity of those communications. The above
notwithstanding, the parties recognize that the Trustee maintains certain
internal policies with regard to the use of manual procedures for receiving and
processing instructions transmitted by fax or other manual methods. As a result,
the individual designated by the Technical Committee for these purposes must
sign a document with the Fiduciary that contains those policies, at the same
time that this Agreement is signed.
Twenty One. Terms and Conditions for the Trustee's Services. In order to induce
the Trustee to enter into this Agreement, the Trust Founders and Creditor Trust
Beneficiary agree to the following with the Trustee:
(a) The Trustee will not be part of the Technical Committee, and therefore will
only be obligated to act in accordance with the written instructions it
receives from the Technical Committee, and will not have any obligation
whatsoever to determine the authenticity of the content of or
signatures on any of the instructions. The Trust Founders and the
Creditor Trust Beneficiary recognize that the Trustee maintains certain
internal policies with regard to the use of manual procedures for
receiving and processing instructions transmitted by fax or other
manual methods. As a result, the Trust Founders, through the Technical
Committee, the Creditor Trust Beneficiary and the individual regular
and alternate members of the Technical Committee, submit to and bind
themselves in the terms of the document that contains those policies,
which they signed with the Trustee prior to signing this Agreement;
(b) The Trustee will not be obligated to exercise a greater level of care
in preserving the Trust Assets than that level of care that it utilizes
with its own assets. The Trustee will not be obligated to invest the
amounts that are deposited in the Trust Account unless it receives
written instructions from the Technical Committee. Any amount forming
part of the Trust Assets that has not been invested will not earn any
interest whatsoever;
(c) The Trustee is expressly and irrevocably authorized, through prior
notice to the Technical Committee, to utilize the amounts deposited in
the Trust Account to pay any costs, fees, commissions and other
expenses directly or indirectly deriving herefrom;
(d) This Agreement expressly establishes all the Trustee's obligations. The
Trustee does not assume any implicit obligation whatsoever under the
Agreement, or obligations directly or directly deriving from covenants
or agreements between the Trust Founders and the Creditor Trust
Beneficiary or between them and any third party;
(e) The Trustee will be liable solely and exclusively for the damages
directly generated by its inexcusable negligence or bad faith in all
matters relative to (i) the investment or reinvestment of the amounts
deposited in the Trust Account; (ii) the receipt, custody and disposal
of the Acquired Optional Certificates of Purchase, the Acquired OPCs
and all other instruments deposited in the Securities Account; (iii)
the losses or yields resulting from the investment, reinvestment or
disposal of the Trust Assets; and (iv) in general, the performance of
its obligations hereunder;
(f) The Trust Founders and Creditor Trust Beneficiary jointly, severally
and unlimitedly agree to indemnify and hold the Trustee, its
subsidiaries, affiliates and related companies and their respective
Board Members, officers, employees, representatives and agents harmless
for any loss, liability, claim, legal action, damage and expense,
including reasonable attorneys' fees and expenses, that derive or may
derive herefrom;
(g) The Trust Founders and Creditor Trust Beneficiary will be jointly,
severally and unlimitedly liable for any tax, fee, contribution or
fiscal responsibility of any nature that derives or may derive from or
is due in connection with this Agreement or the Trust Assets, and
jointly, severally and unlimitedly agree to indemnify and hold the
Trustee harmless for any
amounts that the Trustee is obligated to pay by virtue of such taxes.
The obligations of the Trust Founders and the Creditor Trust
Beneficiary outlined in this sub-clause and in sub-clause (f) above
will continue to be in full force and effect even after the termination
date hereof or the date on which the Trustee resigns; but in any case,
for a maximum period of 3 (three) years after the termination date of
this Agreement.
(h) The Trustee unequivocally informed the parties hereto of the scope and
legal consequences of the provisions of the first three paragraphs of
sub-clause (b), fraction XIX, Article 106 (one hundred six) of the
Lending Institutions Act, which literally read as follows:
Article 106 - The following will be prohibited for lending
institutions:
XIX - In making the transactions referenced in fraction XV, Article 46
of this Law:
(b) To respond to trust founders, agents or principals for breach of
agreement by debtors for the loans granted, or by issuers for
securities acquired, except if they are at fault, as stipulated in the
final part of Article 356 of the General Law on Credit Instruments and
Transactions, or to guarantee the perception of yields for the funds
whose investment is entrusted to them.
If, at the end of the trust, agency or commission created to grant
loans, those loans have not been paid off by the debtors, the
institution will transfer them to the Trust Founders or Trust
Beneficiaries, as appropriate, or to the agent or principal, refraining
for covering the amount involved.
Any agreement contrary to the provisions of the two paragraphs above
will have no legal effect whatsoever.
(i) The Trustee will in no case be liable for the validity, value or
enforceability of the Issue Document, the Receiving Rights, the
Acquired Optional Certificates, the Acquired OPCs or any other
instrument or right directly or indirectly related hereto, and is not
obligated in any form whatsoever under the terms and conditions of the
Issue Document;
(j) The Trust Founders and Creditor Trust Beneficiary agree and recognize
that the Trustee will not have any liability: (i) in the event that the
Trust Assets or any part thereof are expropriated, nationalized or
confiscated; (ii) for breach of its obligations hereunder for reasons
or circumstances beyond its control; or (iii) for the legal capacity of
all other parties hereto to acquire or maintain ownership of the Trust
Assets;
(k) The Trustee will not provide or be responsible for providing the Trust
Founders or the Creditor Trust Beneficiary with any advice whatsoever
with regard to the advisability or inadvisability of investing,
selling, keeping, taking or not taking any action or decision with
regard to the Issue Document, the Receiving Rights or any other
instrument or right directly or indirectly related hereto;
(l) The Trustee (and any other trustee that replaces it) may resign its
position as Trustee at any time by (i) issuing written notice to the
Technical Committee; and (ii) delivering the Trust Assets in the terms
indicated by the Technical Committee in writing. If the Technical
Committee fails to submit written instructions to the Trustee for that
purpose within 60 (sixty) calendar days after the date on which the
Trustee resigns, the Trustee will consign the Trust Assets to any
competent authority without any liability whatsoever, and the Trustee
will be released from each and every one of its obligations deriving
herefrom.
(m) In the event of a dispute between the Trust Founders, the Creditor
Trust Beneficiary and/or the Technical Committee that results or may
result in claims or lawsuits in connection herewith, the Trustee is
authorized (i) to withhold the Trust Assets until (x) it receives a
final and definitive decision from the competent court ordering the
delivery of the Trust Assets; or (y) a Liquidation Notice from the
Technical Committee; or (z) a written agreement signed by all the Trust
Founders and the Creditor Trust Beneficiary instructing the Trustee to
distribute the Trust Assets; or alternatively (ii) to consign the Trust
Assets to any competent authority without any liability whatsoever. In
any case, the Trustee will be released from each and every one of its
obligations deriving herefrom;
(n) The Trust Founders and the Creditor Trust Beneficiary recognize that
the Trustee is part of the international financial group known as
Citigroup, and is therefore subject to the internal policies and rules
of Citigroup and its subsidiary Citibank, N.A. with regard to the
management and performance of trust services (the Internal Policies).
As a result, if any instructions from any of the parties or any other
action that the Trustee must take pursuant to this Agreement is
contrary to the Internal Policies that are in place as of this date,
the Trustee will immediately notify the parties of this circumstance so
that they may reach the appropriate agreements and prevent the Trustee
from committing a violation of the Internal Policies.
(o) The Trust Founders, Creditor Trust Beneficiary and Technical Committee
members agree not to utilize the Trustee's name or logo or those of its
subsidiaries or related companies in any way whatsoever without prior
written consent from the Trustee.
IN WITNESS WHEREOF, and having read this Agreement, which consists of 22 pages
and __ signature pages, and being informed of its contents and legal scope, the
parties sign to indicate their agreement.
Page one of two hundred seventy six signature pages of the Trust Agreement
entered into this 9th (ninth) day of December 1999 by the individuals whose
names and personal information appear in Appendix A hereof in their capacity as
First Place Trust Founders-Beneficiaries; the individuals whose names and
personal information appear in Appendix B hereto in their capacity as Second
Place Trust Founders-Beneficiaries; Cemex S.A. de C.V. in its capacity as
Creditor Trust Beneficiary; and Citibank de Mexico, S.A., Citibank Financial
Group, Trust Division, in its capacity as Trustee.
Trustee
Citibank Mexico, S.A.
Citibank Financial Group
Trust Division
[illegible signature]
Name:
Position: Assigned Trustee
Domicile: Avenida Paseo de la Reforma Xx. 000, 0/xx/ Xxxxx
Xxxxxxx Xxxxxx
00000 Xxxxxx, Federal District
Attention: Xxxxxxx Xxxxxxxx Xxxxxxx
Operations Department
Securities Services (Escrow)
Attention: Xxxxxxx Xxxxxx
Operations Department
Tel.: 0000-0000
Fax: 0000-0000 / 12
with copy (via fax) to:
Product Management, Securities Services (Escrow),
8/th/ Floor
Attention: Xxxxxx Xxxxxxx
Tel.: 0000-0000
Fax: 0000-0000
