EXHIBIT 4.11
AMENDMENT NUMBER TWO TO
FACTORING AGREEMENT
FOR THE PURCHASE AND SALE OF ACCOUNTS RECEIVABLE
This Amendment Number Two To Factoring Agreement for the Purchase and
Sale of Accounts Receivable dated the 4th day of August 2000 as amended, (the
"Agreement") is made as of this 30th day of April 2002, between:
(1) VITRO ENVASES NORTEAMERICA, S.A. DE C.V., a corporation organized
under the laws of Mexico and having an address at Magallanes 517
Ote. Col. Xxxxxxx, Monterrey, N.L C.P. 64570;
(2) VIDRIERA MONTERREY, S.A. DE C.V., a corporation organized under the
laws of Mexico and having an address at Magallanes 517 Ote. Col.
Xxxxxxx, Monterrey, N.L. C.P. 64570;
(3) VIDRIERA MEXICO, S.A. DE C.V., a corporation organized under the
laws of Mexico and having an address at Lago Zurich 243, Col.
Anahuac, Mexico D.F., C.P. 11320;
(4) VIDRIERA LOS XXXXX, X.X. DE C.V., a corporation organized under the
laws of Mexico and having an address at Ave. Presidente Xxxxxx 2039,
Los Xxxxx, Xxxxxxxxxxxx Xxxxxx xx Xxxxxx, X.X. 00000;
(5) VIDRIERA GUADALAJARA, S.A. DE C.V., a corporation organized under
the laws of Mexico and having an address at Libra 225, Fracc. Xxxx
Xxxxxx Xxxxxxxx, Xxxxxxx Xxxxxxx, X.X. 00000;
(6) VIDRIERA QUERETARO, S.A. DE C.V., a corporation organized under the
laws of Mexico and having an address at Coahuila 5 Col. Obrera,
Queretaro, Queretaro, C.P. 76130;
(7) VIDRIERA TOLUCA, S.A. DE C.V., a corporation organized under the laws
of Mexico and having an address at Xxxxxxxxx Xxxxxx - Xxxxxx Xx.
00.0, Xxxxxx Xxxxxx xx Xxxxxx, C.P. 50200;
(8) VIDRIERA MEXICALI, S.A. DE C.V., a corporation organized under the
laws of Mexico and having an address at Carretera San Xxxx Rio
Colorado Km. 11.5 Xx. 0000, Xxxxxxxxx Xxxx Xxxxxxxxxx, X.X. 00000; and
(9) COMPANIA MEXICANA DE ENVASES, S.A. DE C.V., Xxxxxxxxxx 517 Ote. Col.
Xxxxxxx, Monterrey, N.L. C.P. 64570; and
(10) COMPANIA VIDRIERA, S.A. DE C.V., Xxxxxxxxxx 517 Ote. Col. Xxxxxxx,
Monterrey, N.L. C.P. 64570.
Each of the above ten companies are herein referred to individually as a
"Company" and collectively as "the Companies", and
TRANSAMERICA COMMERCIAL FINANCE CORPORATION, a corporation existing under
the laws of Delaware, United States of America, with its principal offices at
0000 Xxxxxxxx Xxxxxxxxx, Xxxxxxx Xxxxxxx, XX. 60 192 ("TCFC");
RECITALS
Whereas The Companies and TCFC desire to amend the Factoring Agreement in
certain respects; and
Whereas Vitro, S.A. de C.V. desires to undertake the obligation of a
Guarantor of the Companies;
NOW, THEREFORE, in consideration of the mutual promises contained herein,
the parties agree as follows:
1. The definition of "One Month LIBOR Rate" in Section 8.2.2.3 (a) is
hereby deleted in its entirety and is replaced with the following:
"(a) 'One Month LIBOR Rate' means a fluctuating rate equal to that
rate identified as such in the "Money Rates" column of the Wall Street
Journal on the first business day of the applicable month (a "business
day" for purposes of this section 8.2.2.3 only, being any day the Federal
Reserve Bank of Chicago is open for the transaction of business).
2. The definition of "Factoring Formula Rate" in Section 8.2.2.3 (b) is
hereby deleted in its entirety and is replaced with the following:
"(b) 'Factoring Formula Rate' means a variable figure equal to the
One Month Libor Rate plus 2.0%, provided however, that notwithstanding
the foregoing, in the event that:
(i) the then current One Month Libor Rate drops below 5.0% then for
every 50 basis point decrease in the then current One Month Libor
Rate below 5.0%, then the applicable Factoring Formula Rate during
such applicable period shall be increased by 6.75 basis points; and
(ii) if the then current One Month Libor Rate rises above 5.0%, then for
every 50 basis point increase in the then current One Month Libor
Rate above 5.0%, then the applicable Factoring Formula Rate during
such applicable period shall be decreased by 6.75 basis points; and
(iii) if at any point the then current One Month Libor Rate exceeds 10%
then the applicable Factoring Formula Rate during such applicable
period shall not be decreased any additional amount below what it
was at when the One Month Libor Rate equaled 10%.
3. The definition of "Consolidated Tangible Net Worth" in Section
10.2.6.1 is hereby deleted in its entirety and is replaced with the following:
"Consolidated Tangible Net Worth" means, at any date, for Vitro
Envases Norteamerica, S.A. de C.V. and its Consolidated Subsidiaries, the
total of (a) consolidated unimpaired paid-up capital, retained earnings
and reserves not allocated to specific liabilities of Vitro Envases
Norteamerica, SA. de C.V. and its Consolidated Subsidiaries plus (b) the
total amount of debt which is owed to Servicios y Operaciones Financieras
Vitro, S.A. de C.V. ("SOFIVSA"), less (c) their consolidated Intangible
Assets, all determined as of such date. For purposes of this definition
"Intangible Assets" means the amount (to the extent reflected in
determining such consolidated capital) of (i) all write-ups (other than
write-ups resulting from foreign currency translations and write-ups of
assets of a going concern business made within twelve months after the
acquisition of such business) subsequent to December 31, 1998 in the book
value of any assets owned by Vitro Envases Norteamerica, S.A. de C.V. or a
Consolidated Subsidiary other than revaluations of assets in accordance
with generally accepted Mexican accounting principles, (ii) all
investments in, equity investments in, or loans to unconsolidated
subsidiaries, including any and all financial transactions with SOFIVSA
as obligor, and all investments in, equity investments in, or loans to
unaffiliated third parties, and (iii) all unamortized debt discount and
expense, unamortized deferred charges, goodwill, patents, trademarks,
service marks, trade names, anticipated future benefit of tax loss
-forwards, copyrights, organization or developmental expenses and other
intangible assets as defined "TCFC."
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4. A new Section 10.4 is hereby added and shall read as follows:
"Maximum Term of Investments in SOFIVSA. The Companies shall not
make loans to, or enter into other financial transactions with, SOFIVSA
as obligor, having a term to maturity exceeding 90 calendar days."
5. A new Section 11.1.12 is hereby added and shall read as follows:
"Termination of Guaranty by Vitro. S.A. de C.V. If the guaranty
undertaken by Vitro, S.A. de C.V. pursuant to this Amendment Number Two
is terminated, except if terminated by or with the consent of TCFC, or if
the enforcement of the terms of such guaranty by TCFC against Vitro S.A.
de C.V. is refused or rejected by a court of competent jurisdiction."
6. A new Section 11.1.13 is hereby added and shall read as follows:
"Control of Funds. In the event that (i) any of the Companies (or
any affiliate of the Companies) terminates any bank account or other
account into which payments or collections of Receivables are deposited
and from which TCFC receives or has access to such funds, or (ii) any of
the Companies (or any affiliate of the Companies) withdraws any funds
which are payments or collections of Receivables out of any bank accounts
or other accounts in which such funds are deposited or received and from
which accounts TCFC receives or has access to such funds, or (iii) any of
the Companies (or any affiliate of the Companies) terminates TCFC's
ability to receive funds from or access any bank accounts or other
accounts in which payments or collections of Receivables are received or
deposited, without TCFC's prior written consent. Notwithstanding anything
to the contrary herein, (x) in the event that any funds that are not
payments or collections of Receivables are deposited in any bank account
or other account from which TCFC receives or has access to such funds,
whether or not TCFC withdraws such funds, TCFC, within one business day,
shall notify the Companies and transfer such funds to the account that
any of the Companies may indicate, and (y) in the event that any of the
Companies receives a deposit or collection of Receivables in a bank
account other than an account from which TCFC receives or has access to
such funds, (it being acknowledged by TCFC and the Companies that TCFC
does not consent that the Companies can direct collections or payments
from Receivables to accounts other than accounts which TCFC has access to
or can withdraw funds from, and that any such receipt by the Companies of
collections from payment of Receivables in other accounts should be an
accidental occurrence), the Companies shall notify TCFC and transfer such
funds to any of the accounts that TCFC controls. For purposes of this
Section a 'business day' is one in which the Mexican banks are open for
business.
7. A new Section 15 is hereby added and shall read as follows:
"Guaranty of Vitro, S.A. de C.V.
For value received and in consideration of the financial
accommodations of any kind heretofore, now or hereafter made or given by
TCFC to any of the Companies in connection with TCFC's purchase of
accounts receivable from any of the Companies, Vitro S.A. de C.V., (the
"Guarantor"), hereby agrees to unconditionally guarantee to TCFC each and
every obligation of the Companies under the Agreement, including without
limitation, the full and punctual payment and performance when due,
whether upon demand, at maturity or earlier by reason of acceleration or
otherwise, and at all times thereafter, of all of the indebtedness and
obligations of every kind and nature of each of the Companies to TCFC
pursuant to this Agreement, howsoever created, arising or evidenced,
whether arising before or after a bankruptcy of any of the Companies,
whether direct or indirect, absolute or contingent, joint or several, now
or hereafter existing, due or to become due during the term of the
Agreement (all such indebtedness and obligations being hereinafter
referred to as the "Liabilities"); provided, however, notwithstanding
anything contained herein to the contrary, Guarantor may raise as a
defense to its obligations hereunder any and all defenses
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which are available to the Companies to the extent that such defenses
have not been waived by the Companies under the terms of the Agreement.
The Guarantor agrees that its obligations hereunder shall be
unconditional, irrespective of (i) the absence of any attempt to collect
the Liabilities from any other person primarily or secondarily liable
with respect to the Liabilities or of any attempt to realize upon any
collateral for the Liabilities, for the obligations of any such other
person, or for TCFC's rights hereunder; (ii) any failure by TCFC to
acquire, perfect or maintain title to the Receivables purchased pursuant
to this Agreement, any failure by TCFC to properly notify any Customer,
or any failure by TCFC to acquire, perfect or maintain a security
interest in or to protect any collateral for the Liabilities or for any
such obligations; (iii) the acceptance of additional parties primarily or
secondarily liable on the Liabilities; or (iv) the disallowance or
avoidance of all or any portion of TCFC's claim(s) for any collateral for
the Liabilities.
Any agreement (including this Agreement) or instrument relating to
the Liabilities may hereinafter referred to as the "Documents." Upon a
default under any Document, TCFC may proceed directly and at once against
the Guarantor to collect the full amount of all or any portion of the
liability of the Guarantor hereunder, without first proceeding against
any other person primarily or secondarily liable on the Liabilities. TCFC
shall have the exclusive right to determine the application of payments
and credits, if any, from the Guarantor, any of the Companies, or any
other person primarily or secondarily liable on the Liabilities.
The Guarantor shall not be released from its obligations under this
Section 15 if TCFC (i) waives compliance with the terms of the
Liabilities or any of the Documents; (ii) accepts partial payments on the
Liabilities; (iii) takes collateral for the Liabilities and the
obligations of any other person primarily or secondarily liable on the
Liabilities, and exchanges, releases, realizes upon or institutes any
proceeding to realize upon, or liquidates any such collateral; (iv)
applies such collateral and directs the order or manner of sale thereof
as TCFC may determine in its discretion; (v) releases or compromises, in
any manner, or collects the Liabilities or any portion thereof; (vi)
purchases additional Receivables from any of the Companies, extends
additional financial accommodations to any of the Companies; or (vii)
releases, or compromises in any manner the obligations of, any other
person primarily or secondarily liable on the Liabilities. Additionally,
the Guarantor shall not be released from its obligations under this
Section 15 if the parties agree to extend the term of the Agreement in
accordance with Section 12.1 of the Agreement.
If any of the Companies should at any time dissolve or terminate its
existence, or become insolvent or make a general assignment for the
benefit of creditors, or if a bankruptcy, insolvency or reorganization
proceeding shall be filed by any of the Companies, the Guarantor shall,
at the option of TCFC, forthwith pay TCFC the full amount which would be
payable hereunder by the Guarantor if all Liabilities were then due and
payable. If a bankruptcy, insolvency or reorganization proceeding shall
be filed against any of the Companies and such Company is unable to get
the proceedings dismissal within a period of thirty (30) days, the
Guarantor shall, at the option of TCFC, forthwith pay TCFC the full
amount which would be payable hereunder by the Guarantor if all
Liabilities were then due and payable.
The Guarantor waives all notice from TCFC in connection with TCFC's
day to day management of the facility with respect to the Companies.
However, Guarantor does not waive its right to receive notice with
respect to TCFC's efforts to collect Liabilities due from the Companies,
consequently TCFC shall be required to give the Guarantor prompt written
notice in the event that TCFC (a) is required under the Agreement to
provide any of the Companies with written notice, (b) gives any of the
Companies written notice pertaining to the transactions contemplated by
the Agreement, (c) files or threatens to file any legal action or
litigation with respect to any claim, legal action, right of setoff or
right of deduction against any of the Companies, or (d) asserts, claims
or threatens that any of the Companies is or may be in default of the
Agreement. Any notice given in accordance with the preceding sentence
shall detail with reasonable
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specificity the reason for the notice and the grounds, if any, for such
asserted or threatened claim, legal action, right of setoff or right of
deduction.
The Guarantor hereby agrees that TCFC shall have no duty to advise
the Guarantor of information now or hereafter known to TCFC regarding the
financial or other condition of any of the Companies or any other person
primarily or secondarily liable on the Liabilities or regarding any
circumstance bearing on the risk of non-payment of the Liabilities.
While this Agreement is in effect, the Guarantor agrees to provide
to TCFC quarterly, within 90 days after each fiscal quarter end and
annually, within 120 days after each fiscal year end, Guarantor's
financial statements. The Guarantor authorizes TCFC to investigate or
make inquiries of former or current creditors or other persons with such
authority to continue throughout the term hereof.
The Guarantor's obligations hereunder shall be binding upon the
Guarantor and upon its successors and assigns and such obligations of the
Guarantor shall inure to the benefit of TCFC's successors and assigns.
References herein to TCFC shall be deemed to refer to TCFC and its
successors and assigns.
Wherever possible each provision hereof shall be interpreted in such
manner as to be effective and valid under applicable law, but if any
provision hereof shall be prohibited by or invalid under such law, such
provision shall be ineffective to the extent of such prohibition or
invalidity and to the extent that such invalidity or prohibition does not
invalidate the remainder of such provision or the remaining provisions
hereof.
The Guarantor's obligations hereunder may be terminated only upon
written notice to TCFC effective no earlier than 9 months after the date
such written notice is actually received by TCFC. Any such termination
shall not affect the liability of the Guarantor hereunder with respect to
Liabilities created or incurred prior to the effective date of such
termination.
All notices and other communications hereunder to or upon the
Guarantor shall be made in manner set forth in Section 14.5 herein,
addressed to the Guarantor at Vitro, S.A. de C.V., Ave. Xxxxxxx Xxxxxxx
Z. 440, Col. Xxxxx xxx Xxxxxxxxx, Xxxxx Xxxxxx, X.X. 00000 Xxxxxx,
telecopy 11-52-81-8863-1372. All notices and other communications
hereunder to or upon the Companies shall, in addition to the requirements
set forth in Section 14.5 herein, require an additional copy of said
notices and communications to be sent to Guarantor at Vitro, S.A. de
C.V., Ave. Xxxxxxx Xxxxxxx Z. 440, Col. Xxxxx xxx Xxxxxxxxx, Xxxxx
Xxxxxx, X.X. 00000 Xxxxxx, telecopy 11-52-81-8863-1372.
No delay on the part of TCFC in the exercise of any right or remedy
with respect to the Guarantor shall operate as a waiver thereof, and no
single or partial exercise by TCFC of any right or remedy shall preclude
any further exercise thereof. No delay on the part of the Companies or
the Guarantor in the exercise of any right or remedy with respect to TCFC
shall operate as a waiver thereof, and no single or partial exercise by
the Companies or the Guarantor of any right or remedy shall preclude any
further exercise thereof. No modification, waiver or amendment of any of
the provisions hereof or of the Documents shall be binding upon TCFC, the
Companies or the Guarantor except as expressly set forth in a writing
duly signed on behalf of the respective party by any authorized officer
or agent of such party and delivered by such party to the other parties.
TCFC's failure at any time to require strict performance by the Guarantor
of any of the provisions contained herein shall not waive, affect or
diminish any right of TCFC at any time to demand strict performance
therewith.
To the extent that the Guarantor or any of the Companies makes a
payment or payments to TCFC enforces its security interests or exercises
its rights of setoff, and such payment or payments or the proceeds of
such enforcement or setoff or any part thereof are subsequently
invalidated, declared to be
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fraudulent or preferential, set aside and/or required to be repaid to a
trustee, receiver or any other party under any bankruptcy law, state,
commonwealth or federal law, common law or equitable cause, then to the
extent of such recovery, the obligation or part thereof originally
intended to be satisfied shall be revived and continued in full force and
effect as if such payment had not been made or such enforcement or setoff
had not occurred.
The Guarantor hereby agrees that its obligations as a Guarantor
hereunder shall be subject to and governed under all of the terms and
provisions of this Agreement and that the Guarantor is hereby bound under
and subject to all such terms and provisions."
Notwithstanding any provision contained herein as to the laws that
shall govern this Agreement, this Guaranty shall be deemed to be a
contract made under, governed by and construed in accordance with the law
of the State of Illinois (excluding its choice of law rules).
(b) Notwithstanding any agreement among the parties contained herein
as to the applicable jurisdiction to bring any legal action or proceeding
by or against any party hereto with respect to or arising out of this
Agreement, each of the Guarantor and TCFC hereby irrevocably consents
that any legal action or proceeding against it or any of its property
with respect to any of the obligations arising hereunder relating to this
Guaranty may be brought in any of the following locations: (i) any court
located in the state, county, territory or province where the party
against whom an action is brought is domiciled; (ii) any court in federal
or state court of the United States of America located in the City of New
York, New York as the party bringing such action may elect. The Guarantor
or TCFC may serve process in any manner permitted by law to bring any
legal action or proceeding or to obtain execution of judgment in any
other jurisdiction in the United States of America or of the United
Mexican States. The Guarantor and TCFC hereby irrevocably waive any
objection which it may now or hereafter have to the laying of the venue
of any suit, action or proceeding arising out of or relating to this
Guaranty, in any of the above mentioned jurisdictions, and hereby further
irrevocably waive any claim that such jurisdictions are not convenient
forum for any suit, action or proceeding as well as any right it may have
to the jurisdiction of any other courts by virtue of its domicile or for
any other reason. IN THE EVENT A SUIT IS BROUGHT TO ENFORCE PAYMENT OF
THIS GUARANTY AND ACCRUED INTEREST THEREON, IF ANY, THE PREVAILING PARTY
AGREES TO PAY SUCH ADDITIONAL SUM FOR EXPENSES AND ATTORNEYS' FEES AS THE
COURT MAY ADJUDGE REASONABLE.
8. All other terms and conditions of the Agreement shall hereby remain in
full force and effect specifically modified herein.
9. This Amendment Number Two may be executed in one or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same Amendment to the Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment Number
Two to be executed as of the day and year first above written.
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VITRO, S.A. DE C.V.
GUARANTOR
By:
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Title:
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TRANSAMERICA COMMERCIAL FINANCE
CORPORATION
By:
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Title:
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VITRO ENVASES NORTEAMERICA, S.A. DE C.V.
By:
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Title:
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By:
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Title:
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VIDRIERA MONTERREY, S.A. DE C.V.
By:
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Title:
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By:
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Title:
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VIDRIERA MEXICO, S.A. DE C.V.
By:
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Title:
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By:
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Title:
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VIDRIERA LOS XXXXX, X.X. DE C.V.
By:
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Title:
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By:
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Title:
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VIDRIERA GUADALAJARA, S.A. DE C.V.
By:
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Title:
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By:
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Title:
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VIDRIERA QUERETARO, S.A. DE C.V.
By:
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Title:
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By:
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Title:
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VIDRIERA TOLUCA, S.A. DE C.V.
By:
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Title:
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By:
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Title:
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VIDRIERA MEXICALI, S.A. DE C.V.
By:
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Title:
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By:
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Title:
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COMPANIA MEXICANA DE ENVASES,
S.A. DE C.V.
By:
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Title:
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COMPANIA VIDRIERA S.A. DE C.V.
By:
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Title:
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