Vitro Envases Norteamérica, S.A. de C.V. Purchase Agreement
EXHIBIT
4.20
EXECUTION
COPY
Vitro
Envases Norteamérica, S.A. de C.V.
U.S.
$170,000,000
10.75%
Senior Secured Guaranteed Notes Due
2011
Purchase
Agreement
July
16,
2004
Citigroup
Global Markets Inc.
As
Representative of the Initial Purchasers
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Ladies
and Gentlemen:
Vitro
Envases Norteamérica, S.A. de C.V., a corporation organized under the laws of
Mexico (the “Company”), proposes to issue and sell to the several parties named
in Schedule I hereto (the “Initial Purchasers”), for whom Citigroup Global
Markets Inc. (the “Representative”) is acting as representative,
U.S.$170,000,000 principal amount of its 10.75% Senior Secured Guaranteed Notes
Due 2011 (the “Securities”). The Securities are to be issued under an indenture
(the “Indenture”), to be dated as of the Closing Date, between the Company and
The Bank of New York, as trustee (the “Trustee”). To the extent there are no
additional parties listed on Schedule I other than the Representative, the
term
Representative as used herein shall mean the Representative in its capacity
as
the Initial Purchaser. The use of the neuter in this Agreement shall include
the
feminine and masculine wherever appropriate. Certain terms used herein are
defined in Section 22 hereof.
The
sale
of the Securities to the Initial Purchasers will be made without registration
of
the Securities under the Act in reliance upon exemptions from the registration
requirements of the Act.
In
connection with the sale of the Securities, the Company has prepared a
preliminary offering memorandum, dated July 1, 2004 (as amended or supplemented
at the date thereof, including any and all exhibits thereto, and any information
incorporated by reference therein, the “Preliminary Memorandum”), and a final
offering memorandum, dated July 16, 2004 (as amended or supplemented at the
Execution Time, including any and all exhibits thereto and any information
incorporated by reference therein, the “Final Memorandum”). Each of the
Preliminary Memorandum and the Final Memorandum sets forth certain information
concerning the Company and the Securities. The Company hereby confirms that
it
has authorized the use of the Preliminary Memorandum and the Final Memorandum,
and any amendment or supplement thereto, in connection with the offer and sale
of the Securities by the Initial Purchasers. Unless stated to the contrary,
any
references herein to the terms “amend”, “amendment” or “supplement” with respect
to the Final Memorandum shall be deemed to refer to and include any
information
filed under the Exchange Act subsequent to the Execution Time that is
incorporated by reference therein.
1. Representations
and Warranties.
The
Company represents and warrants to each Initial Purchaser as set forth
below in
this Section 1.
(a) The
Preliminary Memorandum, at the date thereof, did not contain any untrue
statement of a material fact or omit to state any material fact necessary
to
make the statements therein, in the light of the circumstances under which
they
were made, not misleading. At the Execution Time and on the Closing Date,
the
Final Memorandum did not and will not (and any amendment or supplement
thereto,
at the date thereof and at the Closing Date, will not) contain any untrue
statement of a material fact or omit to state any material fact necessary
to
make the statements therein, in the light of the circumstances under which
they
were made, not misleading; provided,
however,
that
the Company makes no representation or warranty as to the information contained
in or omitted from the Preliminary Memorandum or the Final Memorandum,
or any
amendment or supplement thereto, in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf of the
Initial
Purchasers through the Representative specifically for inclusion
therein.
(b) None
of
the Company, its Affiliates, or any person acting on its or their behalf
(other
than the Initial Purchasers, as to which the Company makes no representation)
has, directly or indirectly, made offers or sales of any security, or solicited
offers to buy, any security under circumstances that would require the
registration of the Securities under the Act.
(c) None
of
the Company, its Affiliates, or any person acting on its or their behalf
(other
than the Initial Purchasers, as to which the Company makes no representation)
has: (i) engaged in any form of general solicitation or general advertising
(within the meaning of Regulation D) in connection with any offer or sale
of the
Securities or (ii) engaged in any directed selling efforts (within the
meaning
of Regulation S) with respect to the Securities; and each of the Company,
its
Affiliates and each person acting on its or their behalf (other than the
Initial
Purchasers, as to which the Company makes no representation) has complied
with
the offering restrictions requirement of Regulation S.
(d) The
Securities satisfy the eligibility requirements of Rule 144A(d)(3) under
the
Act.
(e) The
Company is a “foreign issuer” (as defined in Regulation S).
(f) The
Company has been advised by the NASD’s PORTAL Market that the Securities have
been designated PORTAL-eligible securities in accordance with the rules
and
regulations of the NASD.
(g) No
registration under the Act of the Securities is required for the offer
and sale
of the Securities to or by the Initial Purchasers in the manner contemplated
herein and in the Final Memorandum.
(h)
The Company is not, and after giving effect to the offering and sale of
the
Securities and the application of the proceeds thereof as described in
the Final
Memorandum will
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not
be,
an “investment company” as defined in the Investment Company Act, without taking
account of any exemption arising out of the number of holders of the
Company’s
securities.
(i) The
Company has not paid or agreed to pay to any Person any compensation
for
soliciting another to purchase the Securities (except as contemplated
in this
Agreement).
(j) None
of
the Company, its Affiliates or any of its or their respective directors,
officers or controlling persons has taken, directly or indirectly, any
action
designed to or that has constituted or that might reasonably be expected
to
cause or result, under the Exchange Act or otherwise, in stabilization
or
manipulation of the price of any security of the Company to facilitate
the sale
of the Securities to or by the Initial Purchasers.
(k) It
is not
necessary, in connection with the offer and issuance of the Securities
in the
manner contemplated by the Final Memorandum and this Agreement to qualify
the
Indenture under the Trust Indenture Act.
(l) Annex
A
sets forth all of the subsidiaries of the Company (each a “Subsidiary”) and the
Company’s equity interest in such entity as of the Execution Time and on the
Closing Date. The Subsidiaries listed on Annex B attached hereto are
the only
“significant subsidiaries” of the Company (as defined in Rule 1-02 of the
Regulation S-X under the Act). Upon the closing of the purchase and sale
of the
Securities, the Company directly or through one of its Subsidiaries will
acquire
all of the capital stock of Vitro Packaging, Inc. (“Vitro Packaging”) and shares
of capital stock representing 49.7% of the capital stock of Empresas
Comegua,
S.A. (“Comegua”). Each of the Company and its Subsidiaries has been duly
incorporated, is validly existing under the laws of the jurisdiction
in which it
was incorporated and, where applicable, is in good standing under the
laws of
the jurisdiction in which it is chartered or organized with full corporate
power
and authority to own or lease, as the case may be, and to operate its
properties
and conduct its business as described in the Final Memorandum, and is
duly
qualified to do business as a foreign corporation and is in good standing
under
the laws of each jurisdiction that requires such qualification, other
than where
the failure to be so qualified or in good standing would not have a material
adverse effect on the Company and its Subsidiaries, taken as a
whole.
(m) Except
as
otherwise set forth in the Final Memorandum, (i) all the outstanding
shares of
capital stock of each Subsidiary of the Company have been duly authorized
and
validly issued and are fully paid and nonassessable, and (ii) all outstanding
shares of capital stock of the Subsidiaries of the Company are owned
by the
Company either directly or through wholly owned Subsidiaries free and
clear of
any security interest, claim, lien or encumbrance.
(n) The
statements in the Final Memorandum under the headings “Certain Income Tax
Considerations”, “Description of the Notes”, “Business - Legal Proceedings”, and
“Business - Environmental Matters” fairly summarize the matters therein
described.
(o) This
Agreement has been duly authorized, executed and delivered by the Company;
each
of the Master Collateral and Intercreditor Agreement and the
other
Collateral Documents has
been
duly authorized by each of the Company and any Grantor Subsidiary which
is a
party thereto and, assuming due authorization, execution and delivery
by each of
the parties
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thereto
(other than the Company or any Grantor Subsidiary), when executed and
delivered,
will constitute a legal, valid and binding instrument enforceable against
each
of the Company and any Grantor Subsidiary which is a party thereto in
accordance
with its terms (subject, as to the enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium or other laws affecting
creditors’ rights generally from time to time in effect and to general
principles of equity); the Indenture has been duly authorized by the
Company and
each Note Guarantor and, assuming due authorization, execution and delivery
thereof by the Trustee, when executed and delivered by the Company and
each Note
Guarantor, will constitute a legal, valid, binding instrument enforceable
against the Company and each Note Guarantor in accordance with its terms
(subject, as to the enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting creditors’ rights
generally from time to time in effect and to general principles of equity);
and
the Securities have been duly authorized by the Company, and, when executed
and
authenticated in accordance with the provisions of the Indenture and
delivered
to and paid for by the Initial Purchasers, will have been duly executed
and
delivered by the Company and will constitute the legal, valid and binding
obligations of the Company entitled to the benefits of the Indenture
(subject,
as to the enforcement of remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium or other laws affecting creditors’ rights generally from
time to time in effect and to general principles of equity).
(p) Each
of
the Company and the Grantor Subsidiaries has all requisite corporate
power and
authority, and has taken all requisite corporate or other actions necessary
to
execute, deliver and perform its respective obligations under each of
this
Agreement, the Collateral Documents, the Indenture and the Securities
to which
it is a party. No consent, approval, authorization, filing with or order
of any
court or governmental agency or body is required in connection with the
transactions contemplated herein, in the Indenture, the Collateral Documents
and
the Securities, except such as may be required under (i) the blue sky
laws of
any jurisdiction in which the Securities are offered and sold, (ii) the
rules of
the National Securities Registry (Registro
Nacional de Valores)
of the
National Securities and Banking Commission (Comisión
Nacional Bancaria y de Valores),
(iii)
the filing of UCC financing statements in the requisite U.S. jurisdictions
in
order to perfect those security interests granted by the Collateral Documents
that may be perfected by filing a UCC financing statement in a U.S.
jurisdiction, (iv) the filing of a UCC termination statement with the
Secretary
of State of the State of Delaware relating to the accounts receivable
and
inventory of Vitro Packaging, (v) the registration of the non-possessory
pledge
agreements relating to the accounts receivable (except for the accounts
receivable of certain Mexican Grantor Subsidiaries which are excluded),
inventory and machinery and equipment of the Mexican Grantor Subsidiaries
in the
Public Registry of Commerce (Registro
Publico de Comercio)
of the
state within Mexico where the corresponding Mexican Grantor Subsidiary
has its
corporate domicile, (vi) the registration of Mortgages relating to real
estate
of Mexican Grantor Subsidiaries in the Public Registry of Property (Registro
Publico de la Propiedad)
corresponding to the location of the mortgaged real estate, and (vii)
any
filings relating to the pledge of the Comegua shares.
(q)
None of the execution and delivery of the Indenture, the Collateral Documents,
or this Agreement, the issuance and sale of the Securities, or the consummation
of any other of the transactions herein or therein contemplated, or the
fulfillment of the terms hereof or thereof will conflict with, result
in a
breach or violation or imposition of any lien, charge or
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encumbrance
upon any property or assets of the Company or any of its Subsidiaries pursuant
to, (i) the estatutos
sociales
or
comparable constituting documents of Vitro, S.A. de C.V., the Company or
any of
their Subsidiaries, except for the requirement in the estatutos
sociales of
Vitro,
S.A. de C.V. that any sale of shares of a subsidiary engaged in the production
of glass requires the approval of Vitro, S.A. de C.V.’s shareholders, as
disclosed in the Final Memorandum; (ii) the terms of any indenture, contract,
lease, mortgage, deed of trust, note agreement, loan agreement or other
agreement, obligation, condition, covenant or instrument (other than the
Collateral Documents) to which Vitro, S.A. de C.V., the Company or any of
their
Subsidiaries is a party or bound or to which its or their property is subject;
or (iii) any statute, law, rule, regulation, judgment, order or decree of
any
court, regulatory body, administrative agency, governmental body, arbitrator
or
other authority having jurisdiction over Vitro, S.A. de C.V., the Company
or any
of their Subsidiaries or any of its or their properties.
(r) None
of
the execution and delivery of the Vitro Packaging Merger Agreement, or the
consummation of any other of the transactions therein contemplated, or the
fulfillment of the terms thereof will conflict with, result in a breach or
violation or imposition of any lien, charge or encumbrance upon any property
or
assets of the Company or any of its Subsidiaries pursuant to, (a) the
estatutos
sociales
or
comparable constituting documents of Vitro Packaging, the Company or any
of its
Subsidiaries; (b) the terms of any indenture, contract, lease, mortgage,
deed of
trust, note agreement, loan agreement or other agreement, obligation, condition,
covenant or instrument (other than the Collateral Documents) to which Vitro
Packaging, the Company or any of its Subsidiaries is a party or bound or
to
which its or their property is subject; or (c) any statute, law, rule,
regulation, judgment, order or decree of any court, regulatory body,
administrative agency, governmental body, arbitrator or other authority having
jurisdiction over Vitro Packaging, the Company or any of its Subsidiaries
or any
of its or their properties.
(s) None
of
the execution and delivery of the Comegua Share Purchase Agreement, or the
consummation of any other of the transactions therein contemplated, or the
fulfillment of the terms thereof will conflict with, result in a breach or
violation or imposition of any lien, charge or encumbrance upon any property
or
assets of the Company or any of its Subsidiaries pursuant to, (a) the
estatutos
sociales
or
comparable constituting documents of Comegua, the Company or any of their
Subsidiaries; (b) the terms of any indenture, contract, lease, mortgage,
deed of
trust, note agreement, loan agreement or other agreement, obligation, condition,
covenant or instrument (other than the Collateral Documents) to which Comegua,
the Company or any of their Subsidiaries is a party or bound or to which
its or
their property is subject; or (c) any statute, law, rule, regulation, judgment,
order or decree of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having jurisdiction over
Comegua, the Company or any of their Subsidiaries or any of its or their
properties.
(t)
The audited combined financial statements and schedules of the Company, Vitro
Packaging, Comegua and their respective consolidated subsidiaries, included
or
incorporated by reference in the Final Memorandum fairly present their combined
financial condition, results of operations and cash flows as of the dates
and
for the periods indicated, and have been prepared in conformity with generally
accepted accounting principles in Mexico applied on a consistent basis
throughout the periods involved (except as otherwise noted therein);
5
the
selected financial data set forth under the caption “Selected Combined Financial
Information” in the Final Memorandum fairly present, on the basis stated in the
Final Memorandum, the information included or incorporated by reference
therein.
(u) No
action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company or any of its
Subsidiaries or its or their property is pending or, to the best knowledge
of
the Company, threatened that (i) could reasonably be expected to
have a
material adverse effect on the performance of this Agreement, the Collateral
Documents, or the Indenture, or the consummation of any of the transactions
contemplated hereby or thereby or (ii) could reasonably be expected to
have a
material adverse effect on the condition (financial or otherwise), prospects,
earnings, business or properties of the Company and its Subsidiaries, taken
as a
whole, whether or not arising from transactions in the ordinary course
of
business (a “Material Adverse Effect”), except as set forth in or contemplated
in the Final Memorandum (exclusive of any amendment or supplement thereto).
(v) On
and as
of the Closing Date, all representations made in the Collateral Documents
entered into on or prior to the date hereof are true and correct and the
Company
and the Grantor Subsidiaries are in compliance with all of their respective
covenants and obligations under the Collateral Documents entered into on
or
prior to the date hereof.
(w) Each
of
the Company and its Subsidiaries has good and marketable title in fee simple
to
all real property purported to be owned by it and owns all of its personal
property purported to be owned by it, in each case, free and clear of all
liens,
encumbrances, claims and defects except (i) in the case of Collateral (or
property in respect of which the Company or any of its Subsidiaries has
agreed
in the Master Collateral and Intercreditor Agreement to use reasonable
best
efforts to create a perfected security interest after the Closing Date),
Collateral Permitted Liens or as described in the Final Memorandum (exclusive
of
any amendment or supplement thereto), (ii) the liens, claims and defects
securing the obligations under the Glass Containers Credit Facility, which
liens
shall be terminated at the Closing Date, and liens
created in connection with the sale of accounts receivables under the Factoring
Agreement for the Purchase and Sale of Accounts Receivables dated as of
August
4, 2000 (the "Transamerica Facility"), among Transamerica Commercial Finance
Corporation and certain Subsidiaries, as amended and (iii)
in
the case of all other property of the Company or its Subsidiaries, any
that are
not material. The Collateral Permitted Liens do not and will not materially
and
adversely affect the value of the Collateral.
(x) Neither
the Company nor any of its Subsidiaries is in violation or default of (i)
any
provision of its estatutos
sociales
or
comparable constituting documents; (ii) the terms of any indenture, contract,
lease, mortgage, deed of trust, note agreement, loan agreement or other
agreement, obligation, condition, covenant or instrument to which it is
a party
or bound or to which its property is subject; or (iii) any statute, law,
rule,
regulation, judgment, order or decree applicable to the Company or any
of its
Subsidiaries of any court, regulatory body, administrative agency, governmental
body, arbitrator or other authority having jurisdiction over the Company
or such
subsidiary or any of its properties, as applicable, other than violations
and
defaults with respect to clauses (ii) and (iii) which individually and
in the
aggregate are not material to the Company and its Subsidiaries, taken as
a
whole, or to the holders of the Securities.
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(y) Deloitte Touche
Tohmatsu, who have certified the combined financial statements of the
Company,
Vitro Packaging, Comegua and their respective consolidated subsidiaries
and
delivered their report with respect to the audited combined financial
statements
and schedules included or incorporated by reference in the Final Memorandum,
are
independent public accountants with respect to the Company, Vitro Packaging
and
the Note Guarantors within the meaning of generally accepted accounting
principles in Mexico.
(z) There
are
no stamp or other issuance or transfer taxes or duties or other similar
fees or
charges required to be paid in connection with the execution and delivery
of
this Agreement or the issuance or sale by the Company to the Initial
Purchasers
of the Securities, other than any paid by the Company.
(aa) Each
of
the Company and its Subsidiaries has filed all foreign, federal, state
and local
tax returns that are required to be filed or has requested extensions
thereof
(except in any case in which the failure so to file would not have a
Material
Adverse Effect and except as set forth in or contemplated in the Final
Memorandum (exclusive of any amendment or supplement thereto)) and has
paid all
taxes required to be paid by it and any other assessment, fine or penalty
levied
against it, to the extent that any of the foregoing is due and payable,
except
(i) for any such assessment, fine or penalty that is currently being
contested
in good faith or as would not have a Material Adverse Effect and (ii)
as set
forth in or contemplated in the Final Memorandum (exclusive of any amendment
or
supplement thereto).
(bb) No
labor
problem or dispute with the employees of the Company or any of its Subsidiaries
exists or, to the knowledge of the Company, is threatened or imminent,
and the
Company is not aware of any existing or imminent labor disturbance by
the
employees of any of its or its Subsidiaries’ principal suppliers, contractors or
customers, except as would not have a Material Adverse Effect or as set
forth in
or contemplated in the Final Memorandum (exclusive of any amendment or
supplement thereto).
(cc) The
Company and each of its Subsidiaries are insured by insurers of recognized
financial responsibility against such losses and risks and in such amounts
as
are prudent and customary in the businesses in which they are engaged;
all
policies of insurance and fidelity or surety bonds insuring the Company
or any
of its Subsidiaries or their respective businesses, assets, employees,
officers
and directors are in full force and effect; the Company and its Subsidiaries
are
in compliance in all material respects with the terms of such policies
and
instruments; there are no material claims by the Company or any of its
Subsidiaries under any such policy or instrument as to which any insurance
company is denying liability or defending under a reservation of rights
clause;
neither the Company nor any of its Subsidiaries has been refused any
insurance
coverage sought or applied for; and neither the Company nor any of its
Subsidiaries has any reason to believe that it will not be able to renew
its
existing insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue
its
business at a cost that would not have a Material Adverse Effect except
as set
forth in or contemplated in the Final Memorandum (exclusive of any amendment
or
supplement thereto).
(dd)
No subsidiary of the Company is currently prohibited or otherwise restricted,
directly or indirectly, from paying any dividends to the Company, from
making
any
7
other
distribution on such subsidiary’s capital stock, from repaying to the Company
any loans or advances to such subsidiary from the Company, from paying
any fees
or other amounts in account for services or from transferring any of
such
subsidiary’s property or assets to the Company or any other subsidiary of the
Company, except (i) under Section 10.2.1 of the Transamerica Facility,
and (ii)
as described in or contemplated in the Final Memorandum (exclusive
of any
amendment or supplement thereto).
(ee) The
Company and its Subsidiaries possess all licenses, certificates, permits
and
other authorizations issued by the appropriate federal, state or foreign
regulatory authorities necessary to conduct their respective businesses,
other
than such licenses, certificates, permits or other authorization the
failure of
which to possess would not have a Material Adverse Effect; neither
the Company
nor any of its Subsidiaries has received any notice of proceedings
relating to
the revocation or modification of any such license, certificate, authorization
or permit which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would reasonably be expected to have a
Material
Adverse Effect, except as set forth in or contemplated in the Final
Memorandum
(exclusive of any amendment or supplement thereto).
(ff) The
Company and each of its Subsidiaries maintain a system of internal
accounting
controls sufficient to provide reasonable assurance that (i) transactions
are executed in accordance with management’s general or specific authorizations;
(ii) transactions are recorded as necessary to permit preparation of
financial
statements in conformity with generally accepted accounting principles
in Mexico
and to maintain asset accountability; (iii) access to assets is permitted
only
in accordance with management’s general or specific authorization; and (iv) the
recorded accountability for assets is compared with the existing assets
at
reasonable intervals and appropriate action is taken with respect to
any
differences.
(gg) The
Company has no reason to believe that the statistical and market-related
data
included in the Final Memorandum are based on or derived from sources
that are
not reliable and accurate in all material respects.
(hh) The
Company and its Subsidiaries (i) are in compliance with any and all
applicable
Mexican and foreign, federal, state and local laws and regulations
relating to
the protection of human health and safety, the environment or hazardous
or toxic
substances or wastes, pollutants or contaminants (“Environmental Laws”); (ii)
have received and are in compliance with all permits, licenses or other
approvals required of them under applicable Environmental Laws to conduct
their
respective businesses; and (iii) have not received notice of any actual
or
potential liability under any Environmental Law, except, in the case
of clauses
(i) through (iii), where such non-compliance with Environmental Laws,
permits,
licenses or other approvals, failure to receive required permits, licenses
or
other approvals, or liability would not, individually or in the aggregate,
have
a Material Adverse Effect, except as set forth in or contemplated in
the Final
Memorandum (exclusive of any amendment or supplement thereto). Except
as set
forth in the Final Memorandum, neither the Company nor any of its Subsidiaries
has been named as a “potentially responsible party” under the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as
amended.
(ii) In
the
ordinary course of its business, the Company periodically reviews the
effect of
Environmental Laws on the business, operations and properties of the
Company and
its
8
Subsidiaries,
in the course of which it identifies and evaluates associated costs
and
liabilities (including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or compliance
with
Environmental Laws, or any permit, license or approval, any related
constraints
on operating activities and any potential liabilities to third parties).
On the
basis of such review, the Company has reasonably concluded that such
associated
costs and liabilities could not, singly or in the aggregate, reasonably
be
expected to have a Material Adverse Effect, except as set forth in
the Final
Memorandum (exclusive of any amendment or supplement thereto).
(jj) None
of
the Company, its Subsidiaries or, to the knowledge of the Company,
any director,
officer, agent, employee or Affiliate of the Company or any of its
Subsidiaries
is aware of or has taken any action, directly or indirectly, that would
result
in a violation by such persons of the Foreign Corrupt Practices Act
of 1977, as
amended, and the rules and regulations thereunder (the “FCPA”), including,
without limitation, making use of the mails or any means or instrumentality
of
interstate commerce corruptly in furtherance of an offer, payment,
promise to
pay or authorization of the payment of any money, or other property,
gift,
promise to give, or authorization of the giving of anything of value
to any
“foreign official” (as such term is defined in the FCPA) or any foreign
political party or official thereof or any candidate for foreign political
office, in contravention of the FCPA; and the Company, its Subsidiaries
and, to
the knowledge of the Company, its Affiliates have conducted their businesses
in
compliance with the FCPA and have instituted and maintain policies
and
procedures designed to ensure, and which are reasonably expected to
continue to
ensure, continued compliance therewith.
(kk) The
Company and its Subsidiaries own, possess, license or have other rights
to use
all patents, patent applications, trade and service marks, trade and
service
xxxx registrations, trade names, copyrights, licenses, inventions,
trade
secrets, technology, know-how and other intellectual property (collectively,
the
“Intellectual Property”) necessary for the conduct of the Company’s business as
now conducted or as proposed in the Final Memorandum to be conducted,
except
where the failure to own, possess, license or have other rights to
use such
Intellectual Property would not reasonably be expected to have a Material
Adverse Effect. Except as set forth in the Final Memorandum, there
is no pending
or, to the Company’s knowledge, threatened action, suit, proceeding or claim by
others challenging the validity or scope of any of the Intellectual
Property,
and the Company is unaware of any facts that would form a reasonable
basis for
any such claim. Except as set forth in the Final Memorandum, there
is no pending
or, to the Company’s knowledge, threatened action, suit, proceeding or claim by
others that the Company or any of its Subsidiaries infringes or otherwise
violates any patent, trademark, copyright, trade secret or other proprietary
rights of others, and the Company is unaware of any other fact that
would form a
reasonable basis for any such claim.
(ll) The
operations of the Company and its Subsidiaries are and have been conducted
at
all times in compliance with applicable financial recordkeeping and
reporting
requirements of the Currency and Foreign Transactions Reporting Act
of 1970, as
amended, the money laundering statutes of all jurisdictions, the rules
and
regulations thereunder and any related or similar rules, regulations
or
guidelines, issued, administered or enforced by any governmental agency
(collectively, the “Money Laundering Laws”) and no action, suit or proceeding by
or before any court or governmental agency, authority or body or any
arbitrator
9
involving
the Company or any of its Subsidiaries with respect to the Money Laundering
Laws
is pending or, to the best knowledge of the Company, threatened.
(mm) None
of
the Company, any of its Subsidiaries or, to the knowledge of the Company,
any
director, officer, agent, employee or Affiliate of the Company or any
of its
Subsidiaries is currently subject to any U.S. sanctions administered
by the
Office of Foreign Assets Control of the U.S. Department of the Treasury
(“OFAC”); and the Company will not directly or indirectly use the proceeds
of
the offering of the Securities hereunder, or lend, contribute or otherwise
make
available such proceeds to any subsidiary, joint venture partner or
other person
or entity, for the purpose of financing the activities of any person
currently
subject to any U.S. sanctions administered by OFAC.
Any
certificate signed by any officer of the Company and delivered to the
Representative or counsel for the Initial Purchasers in connection
with the
offering of the Securities shall be deemed a representation and warranty
by the
Company, as to matters covered thereby, to each Initial Purchaser.
2. Purchase
and Sale.
Subject to the terms and conditions and in reliance upon the representations
and
warranties herein set forth, the Company agrees to sell to each Initial
Purchaser, and each Initial Purchaser agrees, severally and not jointly,
to
purchase from the Company, at a purchase price of 93.816% of the principal
amount thereof, plus accrued interest, if any, from July 16, 2004 to
the Closing
Date, the principal amount of Securities set forth opposite such Initial
Purchaser’s name in Schedule I hereto.
3. Delivery
and Payment.
Delivery of and payment for the Securities shall be made at 10:00 A.M.,
New York
City time, on July 23, 2004, or at such time on such later date not
more than
three Business Days after the foregoing date as the Representative
shall
designate, which date and time may be postponed by agreement between
the
Representative and the Company or as provided in Section 9 hereof (such
date and
time of delivery and payment for the Securities being herein called
the “Closing
Date”). Delivery of the Securities shall be made to the Representative for
the
respective accounts of the several Initial Purchasers against payment
by the
several Initial Purchasers through the Representative of the purchase
price
thereof to or upon the order of the Company by wire transfer payable
in same-day
funds to the account specified by the Company. Delivery of the Securities
shall
be made through the facilities of the Depository Trust Company unless
the Representative shall otherwise instruct.
4. Offering
by Initial Purchasers.
(a)
Each Initial Purchaser acknowledges that the Securities have not been
and will
not be registered under the Act and may not be offered or sold within
the United
States or to, or for the account or benefit of, U.S. persons, except
pursuant to an exemption from, or in a transaction not subject to,
the
registration requirements of the Act.
(b) Each
Initial Purchaser, severally and not jointly, represents and warrants
to and
agrees with the Company that:
(i)
it has not offered or sold, and will not offer or sell, any Securities
within
the United States or to, or for the account or benefit of, U.S. persons,
(x) as
10
part
of
their distribution at any time or (y) otherwise until 40 days after
the later of
the commencement of the offering and the date of closing of the offering
except:
(A)
to those it reasonably believes to be “qualified institutional
buyers” (as defined in Rule 144A under the Act) or
(B)
in
accordance with Rule 903 of Regulation S;
(ii) neither
it nor any person acting on its behalf has made or will make offers
or sales of
the Securities in the United States by means of any form of general
solicitation
or general advertising (within the meaning of Regulation D) in the
United
States;
(iii) in
connection with each sale pursuant to Section 4(b)(i)(A), it has taken
or will
take reasonable steps to ensure that the purchaser of such Securities
is aware
that such sale is being made in reliance on Rule 144A;
(iv) neither
it, nor any of its Affiliates nor any person acting on its or their
behalf has
engaged or will engage in any directed selling efforts (within the
meaning of
Regulation S) with respect to the Securities;
(v) it
has
not entered and will not enter into any contractual arrangement with
any
distributor (within the meaning of Regulation S) with respect
to the
distribution of the Securities, except with its Affiliates or with
the prior
written consent of the Company;
(vi) it
and
its Affiliates have complied and will comply with the offering restrictions
requirement of Regulation S;
(vii) at
or
prior to the confirmation of sale of Securities (other than a sale
of Securities
pursuant to Section 4(b)(i)(A) of this Agreement), it shall have sent
to each
distributor, dealer or person receiving a selling concession, fee or
other
remuneration that purchases Securities from it during the distribution
compliance period (within the meaning of Regulation S) a confirmation
or
notice to substantially the following effect:
“The
Securities covered hereby have not been registered under the U.S. Securities
Act
of 1933 (the “Act”) and may not be offered or sold within the United States or
to, or for the account or benefit of, U.S. persons (i) as part of their
distribution at any time or (ii) otherwise until 40 days after the
later of the
commencement of the offering and the date of closing of the offering,
except in
either case in accordance with Regulation S or Rule 144A under the
Act.
Additional restrictions on the offer and sale of the Securities are
described in
the offering memorandum for the Securities. Terms
used in this paragraph have the meanings given to them by Regulation
S.”
(viii) it
has
not offered or sold and, prior to the date six months after the date
of issuance
of the Securities, will not offer or sell any Securities to persons
in
11
the
United Kingdom except to persons whose ordinary activities involve
them in
acquiring, holding, managing or disposing of investments (as principal
or as
agent) for the purposes of their businesses or otherwise in circumstances
which
have not resulted and will not result in an offer to the public in
the United
Kingdom within the meaning of the Public Offers of Securities Regulations
1995;
(ix) it
has
only communicated or caused to be communicated and will only communicate
or
cause to be communicated any invitation or inducement to engage in
investment
activity (within the meaning of section 21 of the Financial Services
and Markets
Act of 2000 (the “FSMA”)) received by it in connection with the issue or sale of
any Securities, in circumstances in which section 21(1) of the FSMA
does not
apply to the Company;
(x) it
is an
“accredited investor” (as defined in Rule 501(a) of Regulation D);
and
(xi) it
understands that no action has been or will be taken by the Company
that would
permit a public offering or possession or distribution of the Preliminary
Memorandum or the Final Memorandum or any other offering or publicity
material
relating to the Securities, in any country or jurisdiction where action
for that
purpose is required.
5. Agreements.
The Company agrees with each Initial Purchaser that:
(a) The
Company will furnish to each Initial Purchaser and to counsel for the
Initial
Purchasers, without charge, during the period referred to in paragraph
(c)
below, as many copies of the Final Memorandum and any amendments and
supplements
thereto as they may reasonably request.
(b) The
Company will not amend or supplement the Final Memorandum, without,
prior to
such amendment or supplement, furnishing to the Representative a copy
of such
proposed amendment or supplement for review, and the Company will not
distribute
any such proposed amendment or supplement to which the Representative
reasonably
objects.
(c) If
at any
time prior to the completion of the sale of the Securities by the Initial
Purchasers (as determined by the Initial Purchasers), any event occurs
as a
result of which the Final Memorandum, as then amended or supplemented,
would
include any untrue statement of a material fact or omit to state any
material
fact necessary to make the statements therein, in the light of the
circumstances
under which they were made, not misleading, or if it should be necessary
to
amend or supplement the Final Memorandum to comply with applicable
law, the
Company will promptly (i) notify the Representative of any such event;
(ii) subject to the requirements of paragraph (b) of this Section
5,
prepare an amendment or supplement that will correct such statement
or omission
or effect such compliance; and (iii) supply any supplemented or amended
Final
Memorandum to the several Initial Purchasers and counsel for the Initial
Purchasers without charge in such quantities as they may reasonably
request.
(d) The
Company will arrange, if necessary, for the qualification of the Securities
for
sale by the Initial Purchasers under the laws of such jurisdictions
as the
Representative may
12
designate
(including Japan, the Netherlands and certain provinces of Canada)
and will
maintain such qualifications in effect so long as required for the
distribution
of the Securities; provided
that in
no event shall the Company be obligated to qualify to do business in
any
jurisdiction where it is not now so qualified or to take any action
that would
subject it to service of process in suits, other than those arising
out of the
offering or sale of the Securities, in any jurisdiction where it is
not now so
subject. The Company will promptly advise the Representative of the
receipt by
the Company of any notification with respect to the suspension of the
qualification of the Securities for sale in any jurisdiction or the
initiation
or threatening of any proceeding for such purpose.
(e) During
the period of two years after the Closing Date, the Company will not,
and will
not permit any of its Affiliates to, resell any Securities that constitute
“restricted securities” under Rule 144 of the Act that have been acquired by any
of them.
(f) None
of
the Company, its Affiliates, or any person acting on its or their behalf
(other
than the Initial Purchasers) will, directly or indirectly, make offers
or sales
of any security, or solicit offers to buy any security, under circumstances
that
would require the registration of the Securities under the Act.
(g) None
of
the Company, its Affiliates, or any person acting on its or their behalf
(other
than the Initial Purchasers) will engage in any form of general solicitation
or
general advertising (within the meaning of Regulation D) in connection
with any
offer or sale of the Securities in the United States.
(h) So
long
as any of the Securities are “restricted securities” within the meaning of Rule
144(a)(3) under the Act, the Company will, during any period in which
it is not
subject to and in compliance with Section 13 or 15(d) of the Exchange
Act or it
is not exempt from such reporting requirements pursuant to and in compliance
with Rule 12g3-2(b) under the Exchange Act, provide to each holder
of such
restricted securities and to each prospective purchaser (as designated
by such
holder) of such restricted securities, upon the request of such holder
or
prospective purchaser, any information required to be provided by Rule
144A(d)(4) under the Act. This covenant is intended to be for the benefit
of the
holders, and the prospective purchasers designated by such holders,
from time to
time of such restricted securities.
(i) None
of
the Company, its Affiliates, or any person acting on its or their behalf
(other
than the Initial Purchasers) will engage in any directed selling efforts
with
respect to the Securities.
Terms
used in this paragraph have the meanings given to them by Regulation
S.
(j) The
Company will cooperate with the Representative and use its reasonable
best
efforts to permit the Securities to be eligible for clearance and settlement
through The Depository Trust Company.
(k) The
Company will not for a period of 180 days following the Execution Time,
without
the prior written consent of Citigroup, offer, sell or contract to
sell, or
otherwise dispose of (or enter into any transaction which is designed
to, or
might reasonably be expected to, result in the disposition (whether
by actual
disposition or effective economic disposition due to cash settlement
or
otherwise) by the Company or any Affiliate of the Company or any person
in
13
privity
with the Company or any Affiliate of the Company), directly or indirectly,
or
announce the offering of, any dollar-denominated, long-term debt securities
issued or guaranteed by the Company in the international capital markets
(other
than the Securities).
(l)
Neither
the Company nor any of its Affiliates, or its or their officers, directors
or
controlling persons will take, directly or indirectly, any action designed
to or
which has constituted or which might reasonably be expected to cause
or result,
under the Exchange Act or otherwise, in stabilization or manipulation
of the
price of any security of the Company to facilitate the sale of the
Securities to
or by the Initial Purchasers.
(m) The
Company agrees to pay the costs and expenses relating to the following
matters:
(i) the preparation of the Indenture, the Collateral Documents, the
issuance of
the Securities and the fees of the Trustee and the Collateral and Intercreditor
Agent; (ii) the preparation, printing or reproduction of the Preliminary
Memorandum and the Final Memorandum and each amendment or supplement
to either
of them; (iii) the printing (or reproduction) and delivery (including
postage,
air freight charges and charges for counting and packaging) of such
copies of
the Preliminary Memorandum and the Final Memorandum, and all amendments
or
supplements to either of them, as may, in each case, be reasonably
requested for
use in connection with the offering and sale of the Securities; (iv)
the
preparation, printing, authentication, issuance and delivery of certificates
for
the Securities; (v) any stamp or transfer taxes in connection with
the original
issuance and sale of the Securities; (vi) the printing (or reproduction)
and
delivery of this Agreement, any blue sky memorandum and all other agreements
or
documents printed (or reproduced) and delivered in connection with
the offering
of the Securities; (vii) any registration or qualification of the Securities
for
offer and sale under the securities or blue sky laws of the several
states and
any other jurisdictions specified pursuant to Section 5(d) (including
filing fees and the reasonable fees and expenses of counsel for the
Initial
Purchasers relating to such registration and qualification); (viii)
admitting
the Securities for trading in the PORTAL Market; (ix)
the
transportation and other expenses incurred by or on behalf of Company
representatives in connection with presentations to prospective purchasers
of
the Securities; (x) the fees and expenses of the Company’s accountants and the
fees and expenses of counsel (including local and special counsel)
for the
Company; and (xi) all other costs and expenses incident to the performance
by
the Company of its obligations hereunder. The Company agrees to reimburse,
upon
request, the Representative, on behalf of the Initial Purchasers, for
all their
reasonable and documented out-of-pocket expenses incurred in connection
with the
sale of the Securities provided for herein (including, without limitation,
fees,
disbursements and expenses of legal advisors for the Initial
Purchasers.)
(n) The
Company will, for a period of twelve months following the Execution
Time,
furnish to the Representative such information concerning the business
and
financial condition of the Company and its Subsidiaries as the Representative
may from time to time reasonably request (such statements to be on
a
consolidated basis to the extent the accounts of the Company and its
Subsidiaries are consolidated in reports furnished to
stockholders).
(o) The
Company will not take any action or omit to take any action (such as
issuing any
press release relating to any Securities without an appropriate legend)
which
may result in the loss by any of the Initial Purchasers of the ability
to rely
on any stabilization safe harbor provided by the Financial Services
Authority
under the FSMA.
14
(p) The
Company will apply the aggregate net proceeds from the offering of
the
Securities in the manner specified in the Final Memorandum under
the heading
“Use of Proceeds”.
(q)
On or
prior to the Closing Date, the Company directly
or through one of its Subsidiaries will acquire all of the capital
stock of
Vitro Packaging and shares of capital stock representing 49.7% of
the capital
stock of Comegua as
contemplated in this Purchase Agreement, the Vitro Packaging Merger
Agreement
and the Comegua
Share Purchase Agreement.
(r) The
Company will pay all applicable recording taxes, fees, charges, cost
and
expenses required for the recording of the Collateral Documents on
a timely
basis.
6. Conditions
to the Obligations of the Initial Purchasers.
The
obligations of the Initial Purchasers to purchase the Securities
shall be
subject to the accuracy of the representations and warranties of
the Company
contained herein at the Execution Time and the Closing Date, to the
accuracy of
the statements of the Company made in any certificates pursuant to
the
provisions hereof, to the performance by the Company of its obligations
hereunder required to be performed at or prior to the Closing Date
and to the
following additional conditions:
(a) The
Company shall have requested and caused Lic. Xxxxxxxxx Xxxxxx, the
Company’s
in-house counsel, to furnish to the Representative his opinion, dated
the
Closing Date and addressed to the Representative, in substantially
the form as
set forth in Exhibit A hereto.
(b) The
Company shall have requested and caused Xxxx Xxxxx, Xxxxxxx Xxxxxx, Xxxxxxxx y
Xxxxx S.C., the Company’s Mexican counsel, to furnish to the Representative its
opinion, dated the Closing Date and addressed to the Representative,
in
substantially the form as set forth in Exhibit B hereto.
(c) The
Company shall have requested and caused Cravath, Swaine & Xxxxx LLP, the
Company’s U.S. counsel, to furnish to the Representative its opinion, dated
the
Closing Date and addressed to the Representative, in substantially
the form as
set forth in Exhibit C-1 and Exhibit C-2 hereto.
(d) The
Company shall have requested and caused Jalife, Caballero, Xxxxxxx y Asociados,
S.C., the Company’s Mexican intellectual property counsel, to furnish to the
Representative its opinion, dated the Closing Date and addressed
to the
Representative, in substantially the form as set forth in Exhibit
D
hereto.
(e) The
Company shall have requested and caused MacMillan, Xxxxxxxx & Xxxx, LLC, the
Company’s Ohio counsel, to furnish to the Representative its opinion, dated
the
Closing Date and addressed to the Representative, in substantially
the form as
set forth in Exhibit E hereto.
(f) The
Company shall have requested and caused Xxxxxxxx, Xxx & Xxxxxx, LLP, the
Company’s federal patent counsel, to furnish to the Representative its opinion,
dated the
15
Closing
Date and addressed to the Representative, in substantially the form
as set forth
in Exhibit F hereto.
(g) The
Company shall have requested and caused de Obaldia & Xxxxxx xx Xxxxxxx, the
Company’s Panamanian counsel, to furnish to the Representative its opinion,
dated the Closing Date and addressed to the Representative, in substantially
the
form as set forth in Exhibit G hereto.
(h) The
Company shall have requested and caused Xxxxxxxx, Xxxxxx & Finger, P.A., the
Company’s special Delaware counsel, to furnish to the Representative his
opinion
dated the Closing Date and addressed to the Representative, in substantially
the
form as set forth in Exhibit H hereto.
(i) The
Company shall have requested and caused Xxxxx
Xxxxxxxxxxxx,
the
Company’s special Switzerland counsel, to furnish to the Representative his
opinion dated the Closing Date and addressed to the Representative,
in
substantially the form as set forth in Exhibit I hereto.
(j) The
Representative shall have received from Cleary, Gottlieb, Xxxxx & Xxxxxxxx
and Xxxxxx & Xxxxx, S.C., counsel for the Initial Purchasers, such opinion
or opinions, dated the Closing Date and addressed to the Representative,
with
respect to the issuance and sale of the Securities, the Indenture,
the
Collateral Documents, the Final Memorandum (as amended or supplemented
at the
Closing Date) and other related matters as the Representative may
reasonably
require, and the Company shall have furnished to such counsel such
documents as
they request for the purpose of enabling them to pass upon such
matters.
(k) The
Company shall have furnished to the Representative a certificate
of the Company,
signed by (x) the Chairman of the Board, the Chief Executive Officer
or the
President and (y) the principal financial or accounting officer of
the Company,
dated the Closing Date, to the effect that the signers of such certificate
have
carefully examined the Final Memorandum, any amendment or supplement
to the
Final Memorandum and this Agreement and that:
(i) the
representations and warranties of the Company in this Agreement are
true and
correct on and as of the Closing Date with the same effect as if
made on the
Closing Date, and the Company has complied with all the agreements
and satisfied
all the conditions on its part to be performed or satisfied hereunder
at or
prior to the Closing Date; and
(ii) since
the
date of the most recent financial statements included or incorporated
by
reference in the Final Memorandum (exclusive of any amendment or
supplement
thereto), there has been no material adverse change in the condition
(financial
or otherwise), prospects, earnings, business or properties of the
Company and
its Subsidiaries, taken as a whole, whether or not arising from transactions
in
the ordinary course of business, except as set forth in or contemplated
in the
Final Memorandum (exclusive of any amendment or supplement thereto).
16
(l) At
the
Execution Time and at the Closing Date, the Company shall have requested
and
caused Deloitte Touche Tohmatsu to furnish to the Representative
letters, dated
respectively as of the Execution Time and as of the Closing Date,
in form and
substance satisfactory to the Representative, confirming that they
are
independent accountants within the meaning of the requirements of
auditing
standards generally accepted in Mexico and stating in effect that:
(i) in
their
opinion the audited financial statements included in the Final Memorandum
and
reported on by them comply as to form with generally accepted accounting
principles in Mexico.
(ii) on
the
basis of a reading of the latest unaudited financial statements made
available
by the Company, Vitro Packaging, Comegua and their respective consolidated
Subsidiaries, their limited review in accordance with the standards
established
under Statement on Auditing Standards No. 100 of the unaudited interim
financial
information for the three-month periods ended March 31, 2003
and 2004, and
at March 31, 2003 and 2004; carrying out certain specified procedures
(but not
an examination in accordance with generally accepted auditing standards)
which
would not necessarily reveal matters of significance with respect
to the
comments set forth in such letter; a reading of the minutes of the
meetings of
the shareholders and directors of the Company, Vitro Packaging, Comegua
and
their respective consolidated Subsidiaries and the audit committee
of Vitro,
S.A. de C.V.; and inquiries of certain officials of the Company who
have
responsibility for financial and accounting matters of the Company,
Vitro
Packaging, Comegua and their respective consolidated Subsidiaries
as to
transactions and events subsequent to December 31, 2003, nothing
came to
their attention which caused them to believe that:
(A)
any
unaudited financial information included in the Final Memorandum
is not in
conformity with generally accepted accounting principles in Mexico
applied on a
basis substantially consistent with that of the audited financial
statements
included in the Final Memorandum; or
(B)
with
respect to the period subsequent to March 31, 2004, there were any
changes, at a
specified date not more than five days prior to the date of the letter,
in the
combined long-term or short-term debt of the Company, Vitro Packaging,
Comegua
and their respective Subsidiaries or combined capital stock of the
Company,
Vitro Packaging, and Comegua, or decreases in the combined stockholders’ equity
of the Company, Vitro Packaging, Comegua, or changes in the combined
working
capital of the Company, Vitro Packaging, Comegua, and their respective
Subsidiaries as compared with the amounts shown on the March 31,
2004
consolidated balance sheet included or
17
incorporated
by reference in the Final Memorandum, or
for the period from April 1, 2004 to such specified date there were
any
decreases, as compared with the corresponding period in the previous
years in
revenues, operating income or income before income taxes or in net
income of the
Company, Vitro Packaging, Comegua, and their respective Subsidiaries,
except in
all instances for changes or decreases set forth in such letter or
set forth in
the Final Memorandum, in which case the letter shall be accompanied
by an
explanation by the Company as to the significance thereof unless
said
explanation is not deemed necessary by the Representative.
(iii) they
have
performed certain other specified procedures as a result of which
they
determined that certain information of an accounting, financial or
statistical
nature (which is limited to accounting, financial or statistical
information
derived from the general accounting records of the Company, Vitro
Packaging,
Comegua, and their respective subsidiaries) set forth in the Final
Memorandum,
including the information set forth under the captions “Summary” and “Selected
Combined Financial Information” and the
information included under the caption “Management’s Discussion and Analysis of
Financial Condition and Results of Operations” included in the Final
Memorandum agrees
with the accounting records of the Company, Vitro Packaging, Comegua,
and their
respective Subsidiaries, excluding any questions of legal
interpretation.
The
Company shall have received from Deloitte Touche Tohmatsu (and furnished
to the
Representatives) a report with respect to a review of unaudited interim
financial information of the Company in accordance with Statement
on Auditing
Standards No. 100.
All
references in this Section 6(l) to the Final Memorandum include any
amendment or
supplement thereto at the date of the applicable letter.
(m) On
the
Closing Date, the Company shall have paid, or shall have caused to
be paid, all
outstanding obligations under the Glass Containers Credit Facility,
and the
agreement shall have been terminated and of no force and effect.
(n) On
the
Closing Date, the Company shall have delivered to the Representative
the
following documents relating to the Collateral:
(i) The
Collateral Documents, duly authorized, executed and delivered by
each of the
Company and any Grantor Subsidiary which is a party thereto and applicable
third
parties other than the Mortgages and the Stock Pledge Agreements
which are
permitted by the Master Collateral and Intercreditor Agreement to
be entered
into after the Closing Date;
(ii) Copies
of
UCC financing statements in favor of the Collateral and Intercreditor
Agent to
be filed with the Delaware Secretary of State with respect
18
to
the
Collateral as defined in the Vitro Packaging Security Agreement,
the
Non-Possessory Pledge Agreements in appropriate form for filing with
the Public
Registry of Commerce and preventive notices (avisos
preventivos)
to be
filed with the applicable public registries of property (registros
públicos de propiedad),
and
such other documents under applicable law in each jurisdiction as
may be
necessary or appropriate to perfect the liens created by the Collateral
Documents;
(iii) A
UCC
termination statement to be filed with the Delaware Secretary of
State with
respect to the assets in which Vitro Packaging granted a security
interest to
secure the obligations under the Glass Containers Credit Facility;
(iv) Such
other certificates, opinions, documents and instruments relating
to the
Collateral as may have been reasonably requested by the Representative;
(v) The
Release dated as of the Closing Date between the Company and the
lenders under
the Glass Containers Credit Facility releasing all security interests
and liens
created in connection with the Glass Containers Credit Facility;
and
(vi) The
executed Agency Agreements.
(o) Subsequent
to the Execution Time or, if earlier, the dates as of which information
is given
in the Final Memorandum (exclusive of any amendment or supplement
thereto) but
at or prior to the Closing Date, there shall not have been (i) any
change or
decrease specified in the letter or letters referred to in paragraph
(k)(ii)(B)
of this Section 6; or (ii) any change, or any development involving
a
prospective change, in or affecting the condition (financial or otherwise),
prospects, earnings, business or properties of the Company and its
Subsidiaries
taken as a whole, whether or not arising from transactions in the
ordinary
course of business, except as set forth in or contemplated in the
Final
Memorandum (exclusive of any amendment or supplement thereto), the
effect of
which, in any case referred to in clause (i) or (ii) above, is, in
the sole
judgment of the Representative, so material and adverse as to make
it
impractical or inadvisable to proceed with the offering or delivery
of the
Securities as contemplated in the Final Memorandum (exclusive of
any amendment
or supplement thereto).
(p) As
of the
Closing Date, the Securities shall have been designated as PORTAL-eligible
securities in accordance with the rules and regulations of the NASD and
the
Securities shall be eligible for clearance and settlement through
The Depository
Trust Company.
(q) Subsequent
to the Execution Time but at or prior to the Closing Date, there
shall not have
been any decrease in the rating of any of the Company’s debt securities by any
“nationally recognized statistical rating organization” (as defined for purposes
of Rule 436(g) under the Act) or any notice given of any intended
or potential
decrease in any such rating or of a possible change in any such rating
that does
not indicate the direction of the possible change.
(r) As
of the
Closing Date, the Company directly or through one of its Subsidiaries
shall have
acquired shares representing 49.7% of the capital stock of Comegua,
and
19
Comegua
shall have become a subsidiary of the Company pursuant to the terms
of Comegua
Share Purchase Agreement.
(s) As
of the
Closing Date, the Company shall have acquired 100% of the shares
of capital
stock of Vitro Packaging and Vitro Packaging shall have become a
subsidiary of
the Company pursuant to the terms of Vitro Packaging Merger
Agreement.
(t) At
or
prior to the Closing Date, the Company shall have furnished to the
Representative such further information, certificates and documents
as the
Representative may reasonably request.
If
any of
the conditions specified in this Section 6 shall not have been fulfilled
when
and as provided in this Agreement, or if any of the opinions and
certificates
mentioned above or elsewhere in this Agreement shall not be reasonably
satisfactory in form and substance to the Representative and counsel
for the
Initial Purchasers, this Agreement and all obligations of the Initial
Purchasers
hereunder may be cancelled at, or at any time prior to, the Closing
Date by the
Representative. Notice of such cancellation shall be given to the
Company in
writing or by telephone or facsimile confirmed in writing.
The
documents required to be delivered by this Section 6 will be delivered
at the
office of U.S. counsel for the Initial Purchasers, at Xxx
Xxxxxxx Xxxxx, Xxx Xxxx, XX 00000
on the
Closing Date.
7. Reimbursement
of Expenses.
If the
sale of the Securities provided for herein is not consummated because
any
condition to the obligations of the Initial Purchasers set forth
in Section 6
hereof is not satisfied, because of any termination pursuant to Section
10
hereof or because of any refusal, inability or failure on the part
of the
Company to perform any agreement herein or comply with any provision
hereof
other than by reason of a default by any of the Initial Purchasers,
the Company
will reimburse the Initial Purchasers severally through Citigroup
on demand for
all reasonable and documented out-of-pocket expenses (including reasonable
fees
and disbursements of counsel) that shall have been incurred by them
in
connection with the proposed purchase and sale of the Securities.
8.
Indemnification and Contribution.
(a)
The Company agrees to indemnify and hold harmless each Initial Purchaser,
the
directors, officers, employees, Affiliates and agents of each Initial
Purchaser
and each person who controls any Initial Purchaser within the meaning
of either
the Act or the Exchange Act against any and all losses, claims, damages
or
liabilities, joint or several, to which they or any of them may become
subject
under the Act, the Exchange Act or other U.S. federal or state statutory
law or
regulation, at common law or otherwise, insofar as such losses, claims,
damages
or liabilities (or actions in respect thereof) arise out of or are
based upon
any untrue statement or alleged untrue statement of a material fact
contained in
the Preliminary Memorandum, the Final Memorandum or in any amendment
or
supplement thereto, or arise out of or are based upon the omission
or alleged
omission to state therein a material fact required to be stated therein
or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, and agrees to reimburse
each such
indemnified party, as incurred, for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any
such loss,
claim, damage, liability or action;
20
provided,
however,
that
the Company will not be liable in any such case to the extent that
any such
loss, claim, damage or liability arises out of or is based upon any
such untrue
statement or alleged untrue statement or omission or alleged omission
made in
the Preliminary Memorandum, the Final Memorandum, or in any amendment
thereof or
supplement thereto, in reliance upon and in conformity with written
information
furnished to the Company by or on behalf of any Initial Purchaser
through the
Representative specifically for inclusion therein. This indemnity
agreement will
be in addition to any liability that the Company may otherwise
have.
(b) Each
Initial Purchaser severally, and not jointly, agrees to indemnify
and hold
harmless the Company, each of its directors, each of its officers,
and each
person who controls the Company within the meaning of either the
Act or the
Exchange Act, to the same extent as the foregoing indemnity from
the Company to
each Initial Purchaser, but only with reference to written information
relating
to such Initial Purchaser furnished to the Company by or on behalf
of such
Initial Purchaser through the Representative specifically for inclusion
in the
Preliminary Memorandum, the Final Memorandum or in any amendment
or supplement
thereto. This indemnity agreement will be in addition to any liability
that any
Initial Purchaser may otherwise have. The Company acknowledges that
(i) the
statements set forth in the last paragraph of the cover page regarding
delivery of the Securities and
(ii),
under the heading “Plan of Distribution”, (A) the first and third sentences of
the third paragraph related to the terms of the offering by the Initial
Purchasers, (B) the fifth sentence of the ninth paragraph related
to market
making by the Initial Purchasers, and (C) the 10th paragraph related
to
over-allotment, stabilization, and syndicate covering transactions
in the
Preliminary Memorandum and the Final Memorandum constitute the only
information
furnished in writing by or on behalf of the Initial Purchasers for
inclusion in
the Preliminary Memorandum, the Final Memorandum or in any amendment
or
supplement thereto.
(c) Promptly
after receipt by an indemnified party under this Section 8 of notice
of the
commencement of any action, such indemnified party will, if a claim
in respect
thereof is to be made against the indemnifying party under this Section
8,
notify the indemnifying party in writing of the commencement thereof;
but the
failure so to notify the indemnifying party (i) will not relieve
it from
liability under paragraph (a) or (b) above unless and to the extent
it did not
otherwise learn of such action and such failure results in the forfeiture
by the
indemnifying party of substantial rights and defenses and (ii) will
not, in any
event, relieve the indemnifying party from any obligations to any
indemnified
party other than the indemnification obligation provided in paragraph
(a) or (b)
above. The indemnifying party shall be entitled to appoint counsel
(including
local counsel) of the indemnifying party’s choice at the indemnifying party’s
expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall
not
thereafter be responsible for the fees and expenses of any separate
counsel,
other than local counsel if not appointed by the indemnifying party,
retained by
the indemnified party or parties except as set forth below); provided,
however,
that
such counsel shall be satisfactory to the indemnified party. Notwithstanding
the
indemnifying party’s election to appoint counsel (including local counsel) to
represent the indemnified party in an action, the indemnified party
shall have
the right to employ separate counsel (including local counsel), and
the
indemnifying party shall bear the reasonable fees, costs and expenses
of such
separate counsel if (i) the use of counsel chosen by the indemnifying
party to
represent the indemnified party would present such counsel with a
conflict of
interest; (ii) the actual or potential defendants in, or targets
of, any such
action include both the indemnified party and the indemnifying party
21
and
the
indemnified party shall have reasonably concluded that there may
be legal
defenses available to it and/or other indemnified parties that are
different
from or additional to those available to the indemnifying party;
(iii) the
indemnifying party shall not have employed counsel satisfactory to
the
indemnified party to represent the indemnified party within a reasonable
time
after notice of the institution of such action; or (iv) the indemnifying
party
shall authorize the indemnified party to employ separate counsel
at the expense
of the indemnifying party. An indemnifying party will not, without
the prior
written consent of the indemnified parties, settle or compromise
or consent to
the entry of any judgment with respect to any pending or threatened
claim,
action, suit or proceeding in respect of which indemnification or
contribution
may be sought hereunder (whether or not the indemnified parties are
actual or
potential parties to such claim or action) unless such settlement,
compromise or
consent includes an unconditional release of each indemnified party
from all
liability arising out of such claim, action, suit or proceeding.
(d) In
the
event that the indemnity provided in paragraph (a) or (b) of this
Section 8 is
unavailable to or insufficient to hold harmless an indemnified party
for any
reason, the Company and the Initial Purchasers severally agree to
contribute to
the aggregate losses, claims, damages and liabilities (including
legal or other
expenses reasonably incurred in connection with investigating or
defending any
loss, claim, damage, liability or action (collectively “Losses”) to which the
Company and one or more of the Initial Purchasers may be subject
in such
proportion as is appropriate to reflect the relative benefits received
by the
Company on the one hand and by the Initial Purchasers on the other
from the
offering of the Securities; provided,
however,
that in
no case shall any Initial Purchaser be responsible for any amount
in excess of
the purchase discount or commission applicable to the Securities
purchased by
such Initial Purchaser hereunder. If the allocation provided by the
immediately
preceding sentence is unavailable for any reason, the Company and
the Initial
Purchasers severally shall contribute in such proportion as is appropriate
to
reflect not only such relative benefits but also the relative fault
of the
Company on the one hand and the Initial Purchasers on the other in
connection
with the statements or omissions that resulted in such Losses, as
well as any
other relevant equitable considerations. Benefits received by the
Company shall
be deemed to be equal to the total net proceeds from the offering
(before
deducting expenses) received by it, and benefits received by the
Initial
Purchasers shall be deemed to be equal to the total purchase discounts
and
commissions. Relative fault shall be determined by reference to,
among other
things, whether any untrue or alleged untrue statement of a material
fact or the
omission or alleged omission to state a material fact relates to
information
provided by the Company on the one hand or the Initial Purchasers
on the other,
the intent of the parties and their relative knowledge, access to
information
and opportunity to correct or prevent such untrue statement or omission.
The
Company and the Initial Purchasers agree that it would not be just
and equitable
if contribution were determined by pro rata allocation or any other
method of
allocation that does not take account of the equitable considerations
referred
to above. Notwithstanding the provisions of this paragraph (d), no
person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f)
of the Act)
shall be entitled to contribution from any person who was not guilty
of such
fraudulent misrepresentation. For purposes of this Section 8, each
person who
controls an Initial Purchaser within the meaning of either the Act
or the
Exchange Act and each director, officer, employee, Affiliate and
agent of an
Initial Purchaser shall have the same rights to contribution as such
Initial
Purchaser, and each person who controls the Company within the meaning
of either
the
Act
or the Exchange Act and each officer and director of the Company
shall have the
same
22
rights
to
contribution as the Company, subject in each case to the applicable
terms and
conditions of this paragraph (d).
9. Default
by an Initial Purchaser.
If any one or more Initial Purchasers shall fail to purchase and
pay for any of
the Securities agreed to be purchased by such Initial Purchaser hereunder
and
such failure to purchase shall constitute a default in the performance
of its or
their obligations under this Agreement, the remaining Initial Purchasers
shall
be obligated severally to take up and pay for (in the respective
proportions
which the principal amount of Securities set forth opposite their
names in
Schedule I hereto bears to the aggregate principal amount of Securities
set
forth opposite the names of all the remaining Initial Purchasers)
the Securities
which the defaulting Initial Purchaser or Initial Purchasers agreed
but failed
to purchase; provided,
however,
that in
the event that the aggregate principal amount of Securities which
the defaulting
Initial Purchaser or Initial Purchasers agreed but failed to purchase
shall
exceed 10% of the aggregate principal amount of Securities set forth
in Schedule
I hereto, the remaining Initial Purchasers shall have the right to
purchase all,
but shall not be under any obligation to purchase any, of the Securities,
and if
such nondefaulting Initial Purchasers do not purchase all the Securities,
this
Agreement will terminate without liability to any nondefaulting Initial
Purchaser or the Company. In the event of a default by any Initial
Purchaser as
set forth in this Section 9, the Closing Date shall be postponed
for such
period, not exceeding five Business Days, as the Representative shall
determine
in order that the required changes in the Final Memorandum or in
any other
documents or arrangements may be effected. Nothing contained in this
Agreement
shall relieve any defaulting Initial Purchaser of its liability,
if any, to the
Company or any nondefaulting Initial Purchaser for damages occasioned
by its
default hereunder.
10. Termination.
This
Agreement shall be subject to termination in the absolute discretion
of the
Representative, by notice given to the Company prior to delivery
of and payment
for the Securities, if at any time prior to such time (i) trading
in securities
generally on the New York Stock Exchange or the Mexican Stock Exchange
shall
have been suspended or limited or minimum prices shall have been
established on
either of such exchanges; (ii) a banking moratorium shall have been
declared
either by U.S. federal or New York State authorities; or (iii) there
shall have
occurred any outbreak or escalation of hostilities, declaration by
the United
States of a national emergency or war or other calamity or crisis
the effect of
which on financial markets is such as to make it, in the sole judgment
of the
Representative, impractical or inadvisable to proceed with the offering
or
delivery of the Securities as contemplated in the Final Memorandum
(exclusive of
any amendment or supplement thereto).
11. Representations
and Indemnities to Survive.
The
respective agreements, representations, warranties, indemnities and
other
statements of the Company or its officers and of the Initial Purchasers
set
forth in or made pursuant to this Agreement will remain in full force
and
effect, regardless of any investigation made by or on behalf of the
Initial
Purchasers or the Company or any of the indemnified persons referred
to in
Section 8 hereof, and will survive delivery of and payment for the
Securities.
The provisions of Sections 7 and 8 hereof shall survive the termination
or
cancellation of this Agreement.
12. Notices.
All
communications hereunder will be in writing and effective only on
receipt, and,
if sent to the Representative, will be mailed, delivered or telefaxed
to the
23
Citigroup
General Counsel (fax no.: (000) 000-0000) and confirmed to Citigroup
at 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: General Counsel;
or, if
sent to the Company, will be mailed, delivered or telefaxed to +
00 (000)
000-0000 and
confirmed to it at Xx. Xxxxxxx Xxxxxxx 000, Xxx. Xxxxx xxx Xxxxxxxxx,
00000
San
Xxxxx
Xxxxx Xxxxxx,
X.X.
Mexico, Attention: Departamento Jurídico.
13. Successors.
This
Agreement will inure to the benefit of and be binding upon the parties
hereto
and their respective successors and the indemnified persons referred
to in
Section 8 hereof and their respective successor, and, except as expressly
set
forth in Section 5(h) hereof, no other person will have any right
or obligation
hereunder.
14. Jurisdiction.
The
Company and each of the Initial Purchasers agrees that any suit,
action or
proceeding against any party hereto brought by any other party hereto,
the
directors, officers, employees and agents of any such other party
hereto, or by
any person who controls any such other party hereto, arising out
of or based
upon this Agreement or the transactions contemplated hereby may be
instituted in
any State or U.S. federal court in The City of New York and County
of New York,
and waives any objection which it may now or hereafter have to the
laying of
venue of any such proceeding, and irrevocably submits to the jurisdiction
of
such courts in any suit, action or proceeding. The Company hereby
appoints CT
Corporation System, located at 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 as
its authorized agent (the “Authorized Agent”) upon whom process may be served in
any suit, action or proceeding arising out of or based upon this
Agreement or
the transactions contemplated herein that may be instituted in any
State or U.S.
federal court in The City of New York and County of New York, by
any Initial
Purchaser, the directors, officers, employees, Affiliates and agents
of any
Initial Purchaser, or by any person who controls any Initial Purchaser,
and
expressly accepts the jurisdiction of any such court in respect of
any such
suit, action or proceeding. The Company hereby represents and warrants
that the
Authorized Agent has accepted such appointment and has agreed to
act as said
agent for service of process, and the Company agrees to take any
and all action,
including the filing of any and all documents that may be necessary
to continue
such appointment in full force and effect as aforesaid. Service of
process upon
the Authorized Agent shall be deemed, in every respect, effective
service of
process upon the Company. Notwithstanding the foregoing, any action
arising out
of or based upon this Agreement may be instituted by any party, the
directors,
officers, employees, Affiliates and agents of any party, or by any
person who
controls any party, in any court of competent jurisdiction in Mexico.
The
parties hereto each hereby waive any right to trial by jury in any
action,
proceeding or counterclaim arising out of or relating to this
Agreement.
15. Applicable
Law.
This
Agreement will be governed by and construed in accordance with the
laws of the
State of New York applicable to contracts made and to be performed
within the
State of New York.
16. Currency.
Each
reference in this Agreement to U.S. dollars (the “relevant currency”), including
by use of the symbol “$”, is of the essence. To the fullest extent permitted by
law, the obligation of the Company in respect of any amount due under
this
Agreement will, notwithstanding any payment in any other currency
(whether
pursuant to a judgment or otherwise), be discharged only to the extent
of the
amount in the relevant currency that the party entitled to receive
such payment
may, in accordance with its normal procedures, purchase with
25
the
sum
paid in such other currency (after any premium and costs of exchange)
on the
Business Day immediately following the day on which such party receives
such
payment. If the amount in the relevant currency that may be so purchased
for any
reason falls short of the amount originally due, the Company will
pay such
additional amounts, in the relevant currency, as may be necessary
to compensate
for the shortfall. Any obligation of the Company not discharged by
such payment
will, to the fullest extent permitted by applicable law, be due as
a separate
and independent obligation and, until discharged as provided herein,
will
continue in full force and effect.
17. Taxes.
All
payments due under this letter are to be made in U.S. dollars, free
and clear
of, and without deduction for, any set-off, claim or applicable taxes
(with
appropriate gross-up for any such taxes deducted or withheld). The
Company will
pay such additional amount as will result in the Representative receiving
and
retaining (after any such deduction or withholding) an amount equal
to the
payment that would have been due if no such deduction or withholding
had been
required or made. For this purpose, “taxes” means all forms of taxation, duties
(including stamp duty), levies, imposts, charges and withholdings
(including any
related or incidental penalty, fine, interest or surcharge), whenever
created or
imposed, and whether required by the law of Mexico or required by
the
regulations of Mexico, other than taxes imposed on a Representative
by reason of
any present or former connection between the Representative and Mexico,
or any
political subdivision thereof or therein (other than as a result
of entering
into this Agreement and receiving payments hereunder).
Each
Representative agrees to cooperate with the Company and provide the
Company with
any documentation reasonably requested by the Company in order to
reduce or
eliminate the amount of taxes required to be paid on any amounts
due under this
Agreement.
18. Waiver
of Immunity.
To the
extent that the Company has or hereafter may acquire any immunity
(sovereign or
otherwise) from any legal action, suit or proceeding, from jurisdiction
of any
court or from set-off or any legal process (whether service or notice,
attachment in aid or otherwise) with respect to itself or any of
its property,
the Company hereby irrevocably waives and agrees not to plead or
claim such
immunity in respect of its obligations under this Agreement.
19. Entire
Agreement.
This
Agreement constitutes the entire agreement and supercedes all prior
agreements
and understandings, both written and oral, among the parties with
respect to the
subject matter hereof.
20. Counterparts.
This
Agreement may be signed in one or more counterparts, each of which
shall
constitute an original and all of which together shall constitute
one and the
same agreement.
21. Headings.
The
section headings used herein are for convenience only and shall not
affect the
construction hereof.
22. Definitions.
The
terms that follow, when used in this Agreement, shall have the meanings
indicated.
25
“Act”
shall mean the U.S. Securities Act of 1933, as amended, and the rules
and
regulations of the Commission promulgated thereunder.
“Affiliate”
shall have the meaning specified in Rule 501(b) of
Regulation D.
“Agency
Agreements” shall have the meaning specified in the Non-Possessory Pledge
Agreements.
“Business
Day” shall mean any day other than a Saturday, a Sunday or a legal holiday
or a
day on which banking institutions or trust companies are authorized
or obligated
by law to close in The City of New York.
“Citigroup”
shall mean Citigroup Global Markets Inc.
“CNBV”
shall mean the Mexican National Securities and Banking Commission.
“Collateral”
shall have the meaning specified in the Master Collateral and Intercreditor
Agreement.
“Collateral
and Intercreditor Agent” shall have the meaning specified in the Master
Collateral and Intercreditor Agreement.
“Collateral
Documents” shall have the meaning specified in the Master Collateral and
Intercreditor Agreement.
“Collateral
Permitted Liens” shall have the meaning specified in the Master Collateral and
Intercreditor Agreement.
“Comegua
Share Purchase Agreement” shall mean the Share Purchase Agreement dated as of
May 31, 2004, between Vitrosa Holding Ltd. and Centro de Tecnologia
Vidriera
Ltd.
“Commission”
shall mean the Securities and Exchange Commission.
“Deloitte
Touche Tohmatsu” shall mean Xxxxx, Xxxxx-Xxxxxx, Chavero, Yamazaki, S.C., a
member firm of Deloitte & Touche International.
“Exchange
Act” shall mean the U.S. Securities Exchange Act of 1934, as amended, and
the
rules and regulations of the Commission promulgated thereunder.
“Execution
Time” shall mean the date and time that this Agreement is executed and delivered
by the parties hereto.
“Glass
Containers Credit Facility” shall mean the Loan Agreement dated as of August 14,
2001, between HSBC Bank USA, as lender, and Compañía Vidriera, S.A. de C.V., as
borrower.
“Grantor
Subsidiaries” shall have the meaning specified in the Master Collateral and
Intercreditor Agreement.
26
“Indenture”
shall mean the Indenture dated as of the Closing Date, among the Company,
the
Note Guarantors and The Bank of New York as Trustee, as such may be
amended from
time to time.
“Investment
Company Act” shall mean the U.S. Investment Company Act of 1940, as amended, and
the rules and regulations of the Commission promulgated thereunder.
“Master
Collateral and Intercreditor Agreement” shall mean the Master Collateral and
Intercreditor Agreement dated as of the Closing Date, among HSBC Bank
USA, as
Collateral
and Intercreditor Agent, The Bank of New York, as Trustee for the Noteholders
(as defined therein), the Company, as issuer of the Notes (as defined
therein)
and grantor of Collateral under the Collateral Documents (as defined
therein),
and the Grantor Subsidiaries listed on Schedule I thereto or becoming
a party to
the agreement from time to time.
“Mortgage”
shall have the meaning specified in the Master Collateral and Intercreditor
Agreement.
“NASD”
shall mean the National Association of Securities Dealers, Inc.
“Note
Guarantors” shall have the meaning specified in the Indenture.
“Non-Possessory
Pledge Agreements” shall have the meaning specified in the Master Collateral and
Intercreditor Agreement.
“Persons”
shall mean any individual, corporation, partnership, joint venture,
association,
joint-stock company, trust, limited liability company, unincorporated
organization or government or agency or political subdivision thereof.
“PORTAL”
shall mean the Private Offerings, Resales and Trading through Automated
Linkages
system of the NASD.
“Regulation
D” shall mean Regulation D under the Act.
“Regulation
S” shall mean Regulation S under the Act.
“Stock
Pledge Agreement” shall have the meaning specified in the Master Collateral and
Intercreditor Agreement.
“Trust
Indenture Act” shall mean the U.S. Trust Indenture Act of 1939, as amended, and
the rules and regulations of the Commission promulgated thereunder.
“UCC”
shall mean the Uniform Commercial Code as in effect in the state of
New
York.
“Vitro
Packaging Merger Agreement” shall mean the Agreement and Plan of Merger dated
May 17, 2004 between Vitro Packaging Inc. and VENA Acquisition
Corp.
27
“Vitro
Packaging Security Agreement” shall mean the Security Agreement dated as of the
Closing Date between Vitro Packaging and the Collateral and Intercreditor
Agent.
28
If
the
foregoing is in accordance with your understanding of our agreement,
please sign
and return to us the enclosed duplicate hereof, whereupon this letter
and your
acceptance shall represent a binding agreement between the Company
and the
several Initial Purchasers.
Very
truly yours,
Vitro
Envases Norteamérica, S.A. de C.V.
By:___________________________
Name:
Title:
Vitro
Envases Norteamérica, S.A. de C.V.
By:___________________________
Name:
Title:
The
foregoing Agreement is hereby
confirmed
and accepted as of the
date
first above written.
Citigroup
Global Markets Inc.
By:
Citigroup Global Markets Inc.
By:__________________________
Name:
Title:
SCHEDULE
I
|
Initial
Purchasers
|
Principal
Amount of
Securities
to
be Purchased
|
|
|
Citigroup
Global Markets Inc.
|
U.S.$170,000,000
|
|
|
Total
|
U.S.$170,000,000
|
|
Annex
A
|
Subsidiary
|
Equity
Interest At Execution Time
|
Equity
Interest At Closing Date
|
|
1.
Compañía Vidriera, S.A. de C.V.
|
99.9%
|
99.9%
|
|
2.
Vidriera Guadalajara, S.A. de C.V.
|
99.9%
|
99.9%
|
|
3.
Vidriera Los Xxxxx, X.X. de C.V.
|
99.9%
|
99.9%
|
|
4.
Vidriera México, S.A. de C.V.
|
99.9%
|
99.9%
|
|
5.
Vidriera Mexicali, S.A. de. C.V.
|
99.9%
|
99.9%
|
|
6.
Vidriera Monterrey, S.A. de C.V.
|
99.9%
|
99.9%
|
|
7.
Vidriera Queretaro, S.A. de C.V.
|
99.9%
|
99.9%
|
|
8.
Vidriera Toluca, S.A. de C.V.
|
99.9%
|
99.9%
|
|
9.
Vitro Packaging, Inc.
|
0.0%
|
100.0%
|
|
10.
Centro de Tecnología Vidriera Ltd.
|
100.0%
|
100.0%
|
|
11.
Vitro Europa Ltd.
|
100.0%
|
100.0%
|
|
12.
Xxxxxx Xxx, X.X.
|
100.0%
|
100.0%
|
|
13.
Industria del Alcali, S.A. de C.V.
|
99.9%
|
99.9%
|
|
14.
Fabricación de Maquinas, S.A. de C.V.
|
99.9%
|
99.9%
|
|
15.
Servicios Integrales de Envasado, S.A. de C.V.
|
99.9%
|
99.9%
|
|
16.
Procesadora de Materias Xxxxxx Industrializables,
S.A. de C.V.
|
99.9%
|
99.9%
|
|
17.
VGD Soluciones Integrales de Diseño, S.A. de C.V.
|
99.9%
|
99.9%
|
|
18.
Empresas Comegua, S.A.
|
0.0%
|
49.7%
|
|
19.
Fomento Industrial Centroamericano, S.A.
|
0.0%
|
49.7%
|
|
20.
Trentino Holding Corp.
|
0.0%
|
49.7%
|
|
21.
Vidriera Guatemalteca, S.A.
|
0.0%
|
49.7%
|
|
22.
Sílice de Centroamérica, S.A.
|
0.0%
|
49.7%
|
|
Subsidiary
|
Equity
Interest At Execution Time
|
Equity
Interest At Closing Date
|
|
23.
Sílice de Costa Rica, S.A.
|
0.0%
|
49.7%
|
|
24.
Vidriera Centroamericana, S.A.
|
0.0%
|
49.7%
|
|
25.
Distribuidora Industrial y Comercial de
Centroamérica, S.A. (Costa
Rica)
|
0.0%
|
49.7%
|
|
26.
Cerámica Xxxxxxxxxx, S.A.
|
0.0%
|
49.7%
|
|
27.
Industria Centroamericana de Tapas, S.A.
|
0.0%
|
49.7%
|
|
28.
Distribuidora Industrial y Comercial de
Centroamérica, S.A. (Guatemala)
|
0.0%
|
49.7%
|
|
29.
Proveedora Centroamericana Industrial y
Comercial, S.A.
|
0.0%
|
49.7%
|
|
30.
Envases de Borosilicato y Plastico, S.A.
|
0.0%
|
49.7%
|
|
31.
Xxxxxx de Exportación, S.A.
|
0.0%
|
49.7%
|
Annex
B
Significant
Subsidiaries
| 1. |
Compañía
Vidriera, S.A. de C.V.
|
| 2. |
Industria
del Alcali, S.A. de C.V.
|
| 3. |
Empresas
Comegua, S.A. de C.V.
|
| 4. |
Vitro
Packaging, Inc.
|
Schedule
of Exhibits
Exhibit
A: Opinion of Company’s In-House Counsel
Exhibit
B: Opinion of Company’s Mexican Counsel
Exhibit
C-1: Opinion of Company’s U.S. Counsel
Exhibit
C-2: 10b-5 Letter of Company’s U.S. Counsel
Exhibit
D: Opinion of Company’s Mexican Intellectual Property Counsel
Exhibit
E: Opinion of Company’s Ohio Counsel
Exhibit
F: Opinion of Company’s U.S. Federal Patent Counsel
Exhibit
G: Opinion of Company’s Panamanian Counsel
Exhibit
H-1: Opinion of Company’s Special Delaware Counsel (Pre-Merger)
Exhibit
H-2: Opinion of Company’s Special Delaware Counsel (Post-Merger)
Exhibit
I: Opinion of Company’s Special Switzerland Counsel
Exhibit
A
/●/,
2004
Citigroup
Global Markets Inc.
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Re.
Vitro Envases Norteamerica, S.A. de C.V.$/●/ Aggregate Principal
Amount
of /●/% Senior Secured Guaranteed Notes due 2011
Ladies
and Gentlemen:
I
am the
General Counsel of Vitro Envases Norteamerica, S.A. de C.V., a Mexican
corporation (sociedad
anónima de capital variable)
(the
"Company"),
and
in that capacity, have acted as counsel to the Company in connection with
the
purchase by Citigroup Global Markets Inc. (the “Initial
Purchaser”)
from
the Company of $/●/ aggregate principal amount of the Company's /●/% Senior
Secured Guaranteed Notes due 2011 (the “Notes”)
pursuant to the Purchase Agreement dated as of /●/, 2004 (the “Purchase
Agreement”),
between the Company and the Initial Purchaser.
In
that
connection, I have examined and relied upon originals, or copies certified
or
otherwise identified to my satisfaction, of such documents, corporate records
and other instruments as I have deemed necessary or appropriate for the purposes
of this opinion, including:
(a)
the
Offering Memorandum dated /•/, 2004 (the “Offering
Memorandum”),
relating to the Notes,
(b)
an
executed version of the Purchase Agreement,
(c)
an executed version of the Indenture dated as of /•/, 2004 (the “Indenture”),
between
the Company, its subsidiary guarantors (the “Guarantors”)
and
The Bank of New
York, as trustee (the "Trustee"),
(d)
the
form
of the Notes;
(e)
an
executed version of the Master Collateral and Intercreditor Agreement dated
as
of ______, 2004 (the “Master
Collateral and Intercreditor Agreement”)
among
the
Company, the Grantors as defined therein, HSBC Bank USA as Collateral and
Intercreditor Agent, and such other Secured Parties (as defined therein)
as
shall, form time
to time, become party thereto;
(f)
executed
versions of the non-possessory pledge agreements (contratos
de prenda sin transmisión de posesión)
dated
as of ________, 2004, entered into by each of Compañía Vidriera, S.A. de C.V.,
Fabricación de Máquinas, S.A. de C.V., Industria del Alcali, S.A. de C.V.,
Procesadora de Materias Xxxxxx Industrializables, S.A. de C.V., Vidriera
Monterrey, S.A. de C.V., Vidriera Guadalajara, S.A. de C.V., Vidriera Querétaro,
S.A. de C.V., Vidriera Toluca, S.A. de C.V. and Vidriera Los Xxxxx, X.X.
de
C.V., with HSBC Bank USA, as Collateral and Intercreditor Agent (collectively,
the Non-Possessory
Pledge Agreements);
(g)
the
forms
of mortgage instrument (hipoteca)
attached as Exhibit “F” to the Master Collateral and Intercreditor Agreement and
Mexican stock pledge agreement (contrato
de prenda de acciones)
attached as Exhibit “G” to the Master Collateral and Intercreditor Agreement
(together with the Non-Posessory Pledge Agreements collectively the
“Mexican
Collateral Documents”);
(h)
the
form
of stock pledge agreement (contrato
de prenda mercantil),
to be
entered into by and between Centro de Tecnología Vidriera Ltd. and the
Collateral and Intercreditor
Agent, with respect to shares issued by Empresas Comegua, S.A. attached as
Exhibit “G-2” to the Master Collateral and Intercreditor
Agreement (the
“Comegua
Pledge Agreement”),
and
(i)
such
other documents and certificates as I
have deemed necessary or convenient for purposes of this opinion.
The
Purchase Agreement, the Indenture, the Notes, the Master Collateral and
Intercreditor Agreement and the Non-Possessory Pledge Agreements are
collectively referred to as the “Transaction
Documents”.
Capitalized terms used herein without definition shall have the definition
assigned to them in the Purchase Agreement.
In
rendering the opinions contained herein, I have assumed, without independent
investigation or verification: (a) that each of the parties to the Transaction
Documents (other than the Company and its Mexican Subsidiaries) is duly
organized, validly existing and, if applicable, in good standing under the
laws
of the jurisdiction of its incorporation or formation, and has all requisite
power and authority to execute, deliver and perform its obligations under
the
Transaction Documents, (b) that each of the parties to the Transaction Documents
(other than the Company and its Mexican Subsidiaries) has duly authorized,
executed and delivered the Transaction Documents, (c) that each of the parties
to the Transaction Documents (other than the Company and its Mexican
Subsidiaries) has the legal power to act in the capacity or capacities in
which
it is to act thereunder and to deliver and perform its obligations thereunder,
(d) that each of the Transaction Documents constitutes a legal, valid and
binding obligation of each of its respective parties and is enforceable under
the laws of each jurisdiction (other than, in the case of the Company and
its
Mexican Subsidiaries,
the
United Mexican States (“Mexico”))
to
which the Transaction Documents and any of the parties thereto may be
subject,
(e) the performance of, and compliance with, the covenants contained in the
Transaction Documents, (f) the accuracy as to factual matters asserted on
the
Transaction Documents and all other certificates, opinions, documents and
papers
submitted to me, (g) the authenticity of all documents submitted to me as
originals, (h) the conformity to the original documents of all documents
submitted to me as copies and (i) the genuineness of all signatures on all
documents submitted to me. I have also relied, with respect to certain factual
matters, on the representations and warranties contained in the Transaction
Documents and in certificates from the Company.
Based
upon the foregoing, and subject to the assumptions, qualifications and
limitations set forth herein, I am of the opinion that:
1. Each
of
the Company and its Mexican Subsidiaries has all requisite corporate power
and
authority, has taken all requisite corporate action and has received and
is in
compliance with all governmental, authorizations, approvals and orders necessary
to execute, deliver and perform the Transaction Documents to which it is
a party
and, (a) in the case of the Company, to offer, issue, sell and deliver the
Notes
and (b) in the case of the Mexican Guarantors, to guarantee the Notes; no
authorization, approval or other action by, and no notice to, consent of,
order
of, or filing with, any Mexican court or governmental agency or body is required
in connection with the transactions contemplated by the Transaction Documents,
except for (i) the authorization for the registration of the Notes in the
Special Section of the Mexican Registro
Nacional de Valores
maintained by the Mexican Comisión
Nacional Bancaria y de Valores,
(ii)
the registration of each of the Non-Possessory Pledge Agreements at the Public
Registry of Commerce (Registro
Público de Comercio)
of the
state where each corresponding Mexican Grantor has its corporate domicile,
and
(iii) the registration of each of the mortgage agreements (if and when executed)
at the Public Registry of Property (Registro
Público de la Propiedad)
corresponding to the location of the mortgaged real estate.
2. None
of
the issue and sale of the Notes, the execution and delivery of the Transaction
Documents, the consummation of any other of the transactions contemplated
by the
Transaction Documents or the performance of the terms of the Transaction
Documents will conflict with, result in a breach or violation of, or imposition
of any lien, charge or encumbrance upon any property or asset of the Company
or
of any of its Subsidiaries (other than those created by the Non-Possessory
Pledge Agreements, the mortgages and/or the stock pledge agreements, if and
when
executed) pursuant to, or constitute a default under, (i) the estatutos
sociales or
comparable constituting documents of Vitro, S.A. de C.V., the Company or
its
Subsidiaries chartered in Mexico; (ii) the terms of any indenture or other
agreement, obligation, condition, covenant or instrument governed by the
laws of
Mexico to which the Company or any of its Subsidiaries is a party or bound
or to
which its or their respective property is subject or (iii) any statute, law,
rule or regulation in Mexico or, to my knowledge, after due inquiry, any
order
or decree of any Mexican court, regulatory body, administrative agency,
governmental body, arbitrator, instrumentality or other authority having
jurisdiction over the Company, any of its Subsidiaries or any of their
respective property.
3. All
of
the outstanding shares of capital stock of the Company and each of the
Subsidiaries of the Company chartered in Mexico have been duly authorized,
validly issued and are fully paid and nonassessable, except as otherwise
set
forth in the Offering Memorandum. All of the outstanding shares of capital
stock
of the Subsidiaries of the Company chartered in Mexico are owned by the Company
either directly or through wholly owned Subsidiaries free and clear of any
perfected security interest and, to my knowledge, after due inquiry, any
other
security interest, claim, lien or encumbrance, except, in each case, as
otherwise set forth in the Offering Memorandum.
4. The
statements made in the Offering Memorandum under the caption "Business--Legal
or
Arbitration Proceedings", insofar as they purport to constitute summaries
of
certain legal and arbitration proceedings, under the caption
"Business--Environmental Matters", insofar as they purport to constitute
summaries of certain environmental matters, fairly summarize the matters
therein
described.
5. To
my
knowledge, except as disclosed in the Offering Memorandum, there are not
any
pending or threatened actions, suits or proceedings before any court or
governmental agency or authority or any arbitrator involving the Company
or any
of its subsidiaries or its or their property that is not adequately disclosed
in
the Offering Memorandum, except in each case, for such actions, suits or
proceedings that, if the subject of an unfavorable decision, ruling or finding
would not, individually or in the aggregate, have a Material Adverse Effect
(as
defined in the Purchase Agreement).
My
opinion is subject to the following qualifications:
Absent
an
approval of the pledge of stock by the shareholders of Vitro, S.A. de C.V.,
a
shareholder of Vitro, S.A. de C.V. could attempt to contest the sale of the
Pledged Stock in a foreclosure, based on an alleged violation of the bylaws
of
Vitro, S.A. de C.V.
I
am
admitted to practice in Mexico, and I express no opinion as to matters governed
by any laws other than the laws of Mexico. In particular, I do not purport
to
pass on any matter governed by the laws of the United States of America or
any
of its constituent States or the laws of the Republic of
Panama.
To
the
extent that the laws of the United States or any of its constituent States,
the
laws of the Republic of Panama, or the intellectual property laws of Mexico
may
be relevant to the opinions expressed herein, I have, with your consent,
relied
on, assumed (without independent investigation) the correctness of, and my
opinion is subject to the assumptions, qualifications and limitations contained
in, the opinions dated the date hereof of (i) Cravath, Swaine & Xxxxx LLP,
special New York counsel for the Company, (ii) Xxxxxxxx, Xxx & Xxxxxx, U.S.
intellectual property counsel for the Company, (iii) MacMillan, Xxxxxxxx
&
Xxxx, LLC, special Ohio counsel for the Company, (iv) Jalife, Caballero,
Xxxxxxx
& Asociados, Mexican intellectual property counsel for the Company, and (v)
De Obaldía & Xxxxxx xx Xxxxxxx, special Panamanian counsel for the Company.
I
am
furnishing this opinion to you, as the Initial Purchaser of the Notes, solely
for your benefit. This opinion may not be relied upon by any other person
(including by any person that acquires the Notes from you) or for any other
purpose. It may not be used, circulated, quoted or otherwise referred to
for any
other purpose.
Exhibit
B
/●/,
2004
Citigroup
Global Markets Inc.
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Re: Vitro
Envases Norteamérica, S.A. de C.V.
$/●/
Aggregate Principal Amount of
/●/%
Senior Secured Guaranteed Notes due 2011
Ladies and Gentlemen:
We
have
acted as special outside Mexican counsel for Vitro Envases Norteamérica, S.A. de
C.V., a Mexican corporation (sociedad
anónima de capital variable)
(the
"Company")
and its
Mexican Subsidiaries named in Schedule 1 hereof (the “Mexican
Subsidiaries”),
in
connection with the purchase by Citigroup Global Markets Inc. (the "Initial
Purchaser"),from
the Company of $/●/ aggregate principal amount of the Company's /●/% Senior
Secured Guaranteed Notes due 2011 (the "Notes")
pursuant to the Purchase Agreement dated as of /●/, 2004 (the "Purchase
Agreement"),
between the Company and the Initial Purchaser.
In
that
connection, we have examined and relied upon originals, or copies certified
or
otherwise identified to our satisfaction, of such documents, corporate records
and other instruments as we have deemed necessary or appropriate for the
purposes of this opinion, including:
|
(a)
|
the
Offering Memorandum dated /•/, 2004 (the "Offering
Memorandum"),
relating to the Notes,
|
|
(b)
|
an
executed version of the Purchase
Agreement,
|
|
(c)
|
an
executed version of the Indenture dated as of /•/, 2004 (the "Indenture"),
between
the Company, its subsidiary guarantors (the “Guarantors”)
and The Bank of New York, as trustee (the "Trustee"),
|
|
(d)
|
the
form of the Notes;
|
|
(e)
|
an
executed version of the Master Collateral and Intercreditor Agreement
dated as of ______, 2004 (the “Master
Collateral and Intercreditor Agreement”)
among the Company, the Grantors (as defined therein), HSBC Bank
USA, as
Collateral and Intercreditor Agent, and such other Secured Parties
(as
defined therein) as shall, form time to time, become party
thereto;
|
|
(f)
|
executed
versions of the non-possessory pledge agreements (contratos
de prenda sin transmisión de posesión)
dated as of ________, 2004, entered into by each of Compañía Vidriera,
S.A. de C.V., Fabricación de Máquinas, S.A. de C.V., Industria del Alcali,
S.A. de C.V., Procesadora de Materias Xxxxxx Industrializables,
S.A. de
C.V., Vidriera Monterrey, S.A. de C.V., Vidriera Guadalajara, S.A.
de
C.V., Vidriera Querétaro, S.A. de C.V., Vidriera Toluca, S.A. de C.V. and
Vidriera Los Xxxxx, X.X. de C.V., with HSBC Bank USA, as Collateral
and
Intercreditor Agent (collectively, the Non-Possessory
Pledge Agreements);
|
|
(g)
|
executed
versions of the mercantile agency agreements (contratos
de commisión mercantil)
dated as of_______, 2004, entered into by each of Compañía Vidriera, S.A.
de C.V., Fabricación de Máquinas, S.A. de C.V., Industria del Alcali, S.A.
de C.V., Procesadora de Materias Xxxxxx Industrializables, S.A.
de C.V.,
Vidriera Monterrey, S.A. de C.V., Vidriera Guadalajara, S.A. de
C.V.,
Vidriera Querétaro, S.A. de C.V., Vidriera Toluca, S.A. de C.V. and
Vidriera Los Xxxxx, X.X. de C.V., with Banco Nacional de México, S.A.,
División Fiduciaria, integrante del Grupo Financiero Banamex, as agent
of
each of the above Mexican Subsidiaries and HSBC Bank USA, as Collateral
and Intercreditor Agent (collectively, the “Agency
Agreements”);
|
|
(h)
|
the
forms of mortgage instrument (hipoteca)
and Mexican stock pledge agreement (contrato
de prenda de acciones)
attached as Exhibits “F” and “G” to the Master Collateral and
Intercreditor Agreement (together with the Non-Posessory Pledge
Agreements
collectively the “Mexican
Collateral Documents”);
|
|
(i)
|
the
form of stock pledge agreement (contrato
de prenda mercantil)
to be entered into by and between Centro de Tecnología Vidriera Ltd. and
the Collateral and Intercreditor Agent, with respect to shares
issued by
Empresas Comegua, S.A. (the “Comegua
Pledge Agreement”),
and
|
|
(j)
|
such
other documents and certificates as we have deemed necessary or
convenient
for purposes of this opinion.
|
The
Purchase Agreement, the Indenture, the Notes, the Master Collateral and
Intercreditor Agreement the Non-Possessory Pledge Agreements and the Agency
Agreements are collectively referred to as the "Transaction
Documents".
Capitalized
terms
used herein without definition shall have the definition assigned to them
in the
Purchase Agreement.
In
rendering the opinions contained herein, we have assumed, without independent
investigation or verification: (a) that each of the parties to the Transaction
Documents (other than the Company and its Mexican Subsidiaries) is duly
organized, validly existing and, if applicable, in good standing under the
laws
of the jurisdiction of its incorporation or formation, and has all requisite
power and authority to execute, deliver and perform its obligations under
the
Transaction Documents, (b) that each of the parties to the Transaction Documents
(other than the Company, and its Mexican Subsidiaries) has duly authorized,
executed and delivered the Transaction Documents, (c) that each of the parties
to the Transaction Documents (other than the Company and its Mexican
Subsidiaries) has the legal power to act in the capacity or capacities in
which
it is to act thereunder and to deliver and perform its obligations thereunder,
(d) that each of the Transaction Documents constitutes a legal, valid and
binding obligation of each of its respective parties and is enforceable under
the laws of each jurisdiction (other than, in the case of the Company and
its
Mexican Subsidiaries, the United Mexican States ("Mexico"))
to
which the Transaction Documents and any of the parties thereto may be subject,
(e) the performance of, and compliance with, the covenants contained in the
Transaction Documents, (f) the accuracy as to factual matters asserted in
the
Transaction Documents and all other certificates, opinions, documents and
papers
submitted to us, (g) the authenticity of all documents submitted to us as
originals, (h) the conformity to the original documents of all documents
submitted to us as copies, and (i) the genuineness of all signatures on all
documents submitted to us. We have also relied, with respect to certain factual
matters, on the representations and warranties contained in the Transaction
Documents and in certificates from the Company.
We
express no opinion as to any laws other than the laws of Mexico as currently
in
effect, and we assume that there is nothing in any other law that affects
our
opinion.
Based
upon the foregoing, and subject to the assumptions, qualifications and
limitations set forth herein, we are of opinion that:
1.
Each
of
the Company and its Mexican Subsidiaries is duly incorporated or formed and
validly existing under the laws of Mexico, and has full corporate power and
authority to own, lease and operate its properties and conduct its businesses
as
described in the Offering Memorandum.
2.
All of the outstanding
shares of capital stock of the Company and each of its Mexican Subsidiaries
have
been duly authorized, validly issued and are fully paid and nonassessable,
except as otherwise set forth in the Offering Memorandum. All of the outstanding
shares of capital stock of the Mexican Subsidiaries of the Company are owned
by
the Company either directly or through wholly owned Subsidiaries, to our
knowledge, after due inquiry, free and clear of any security interest, claim,
lien or encumbrance, except, in each case, as otherwise set forth in the
Offering Memorandum.
3.
The
Purchase Agreement has been duly authorized, executed and delivered by the
Company and constitutes a legal, valid and binding obligation of the Company.
4.
The
Indenture has been duly authorized, executed and delivered by the Company
and
the Mexican Guarantors and constitutes a legal, valid and binding obligation
of
the Company and such Mexican Guarantors.
5.
The
Notes
have been duly authorized and, when executed and authenticated in accordance
with the provisions of the Indenture and delivered to and paid for by the
Initial Purchaser pursuant to the Purchase Agreement, will constitute legal,
valid and binding obligations of the Company.
6.
The
Master Collateral and Intercreditor Agreement has been duly authorized, executed
and delivered by the Company and by each Mexican Grantor and constitutes
a
legal, valid and binding obligation of the Company and each Mexican
Grantor.
7.
Each
of
the Non-Possessory Pledge Agreements has been duly authorized, executed and
delivered by each such Mexican Subsidiary that is a party thereto and
constitutes a legal, valid, binding and enforceable obligation of each such
Mexican Subsidiary, and creates a valid security interest, and, when duly
recorded in the Public Registry of Commerce (Registro
Público de Comercio)
of the
corporate domicile of each such Mexican Subsidiary, will constitute a perfected
security interest, enforceable against third parties, in respect of the
Collateral comprised thereby in favor of the Collateral and Intercreditor
Agent
securing the Secured Obligations (as defined in the Master Collateral and
Intercreditor Agreement).
8.
Each
of
the Agency Agreements has been duly authorized, executed and delivered by
each
Mexican Subsidiary that is a party thereto and constitutes a legal, valid,
binding and enforceable obligation of each such Mexican
Subsidiary.
9.
Each
of
the Company and each Mexican Subsidiary has all requisite corporate power
and
authority, has taken all requisite corporate action and has received and
is in
compliance with all governmental, authorizations, approvals and orders necessary
to execute, deliver and perform the Transaction Documents to which it is
a party
and, (a) in the case of the Company, to offer, issue, sell and deliver the
Notes
and (b) in the case of the Mexican Guarantors, to guarantee the Notes; no
authorization, approval or other action by, and no notice to, consent of,
order
of, or filing with, any Mexican court or governmental agency or body is required
in connection with the transactions contemplated by the Transaction Documents,
except for (i) the authorization for the registration of the Notes in the
Special Section of the Mexican Registro
Nacional de Valores
maintained by the Mexican Comisión
Nacional Bancaria y de Valores,
(ii)
the registration of each of the Non-Possessory Pledge Agreements at the Public
Registry of Commerce (Registro
Público de Comercio)
of the
state where each corresponding Mexican Grantor has its corporate domicile,
and
(iii) the registration of each of the mortgage agreements (if and when executed)
at the Public Registry of
Property
(Registro
Público de la Propiedad)
corresponding to the location of the mortgaged real estate.
10. None
of
the issue and sale of the Notes, the execution and delivery of the Transaction
Documents, the granting of the guarantees by the Mexican Guarantors as provided
in Section 10.1 of the Indenture, the consummation of any other of the
transactions contemplated by the Transaction Documents or the performance
of the
terms of the Transaction Documents will conflict with, result in a breach
or
violation of, or imposition of any lien, charge or encumbrance (other than
those
created by the Non-Possessory Pledge Agreements, the Agency Agreements, the
mortgages and/or the Mexican stock pledge agreements, if and when executed)
upon
any property or asset of the Company or of any of its Mexican Subsidiaries
pursuant to, or constitute a default under, (i) the estatutos
sociales
or
comparable constituting documents of Vitro, S.A. de C.V., the Company or
its
Mexican Subsidiaries, (ii) the terms of any of the agreements listed in Schedule
2 hereof, or (iii) any statute, law, rule or regulation of Mexico, applicable
to
the Company, any of its Mexican Subsidiaries or any of their respective
property.
11.
The
statements made in the Offering Memorandum under the caption “Description of
Notes”, insofar as they purport to summarize the terms of the Mexican Collateral
Documents or matters of Mexican law, under the Caption “Business-Legal or
Arbitration Proceedings” insofar as they purport to constitute summaries of
certain Mexican legal and arbitration proceedings, and under the caption
“Certain Income Tax Considerations--Mexican Taxation”, insofar as they purport
to describe the material Mexican income tax consequences of an investment
in the
Notes, fairly summarize the matters therein described.
12. The
choice of law provisions set forth in Section 15 of the Purchase Agreement,
Section 12.6 of the Indenture, in the Notes, Section 11.8 of the Master
Collateral and Intercreditor Agreement and in each other Transaction Document
executed by the Company or its Mexican Subsidiaries are legal, valid and
binding
under the laws of Mexico, and we know of no reason why the courts of Mexico
would not give effect to the choice of New York law as the proper law governing
the Purchase Agreement, the Indenture, the Notes and the Master Collateral
and
Intercreditor Agreement.
13.
The
Company has the legal capacity to xxx and be sued in its own name under the
laws
of Mexico, and each Mexican Subsidiary has the legal capacity to xxx and
be sued
in its own name under the laws of Mexico.
14.
The
Company has the power to submit, and has irrevocably submitted, to the
jurisdiction of any State or United States Federal court in the City of New
York
and the County of New York, to the extent and for the matters set forth in
Section 14 of the Purchase Agreement, Section 12.6 of the Indenture, the
Notes
and Section 11.9 of the Master Collateral and Intercreditor Agreement. Each
Mexican Subsidiary that is a party to any Transaction Document containing
a
submission to the jurisdiction of any State or United States Federal court
in
the City of New York and the County of New
York
has
the power to submit, and has irrevocably submitted, to the jurisdiction of
such
courts.
15.
The
appointment by the Company of CT Corporation System as authorized agent to
receive service of process in accordance with Section 14 of the Purchase
Agreement, Section 12.6 of the Indenture, the Notes and Section 11.9 of the
Master Collateral and Intercreditor Agreement is valid under the laws of Mexico.
The appointment by any Mexican Subsidiary of CT Corporation System as authorized
agent to receive service of process in accordance with any Transaction Document
to which it is a party is valid under the laws of Mexico.
16.
The
waivers by the Company of any immunity and any objection to the laying of venue
set forth in Sections 14 and 18 of the Purchase Agreement, Section 12.6 of
the
Indenture, Sections 11.9 and 11.11 of the Master Collateral and Intercreditor
Agreement and the Notes are legal, valid and binding under the laws of Mexico,
and the waiver by any Mexican Subsidiary of any immunity and any objection
to
the laying of venue in any Transaction Document to which it is a party is legal,
valid and binding under the laws of Mexico, and we know of no reason why the
courts of Mexico would not give effect to such waivers.
17.
In
the
event that a final and conclusive judgment of the courts of the State of New
York for the payment of money be rendered against the Company or against any
Mexican Subsidiary in respect to the Transaction Documents, the courts of Mexico
will recognize such judgment as valid and final and such judgment would be
enforced by the courts of Mexico against the Company, or the Mexican Subsidiary,
as the case may be, provided, inter
alia,
that:
(i)
such
judgment is obtained in compliance with the legal requirements of the
jurisdiction of the court rendering such judgment;
(ii)
such
judgment is strictly for the payment of a certain sum of money and has been
rendered in an actio
in personam
(as
opposed to an actio
in rem);
(iii)
service
of process in the action has been served personally on the defendant or a duly
appointed process agent (please note that service by mail does not constitute
personal service in Mexico);
(iv)
the
Mexican courts do not determine that the obligation for which enforcement is
sought violates Mexican law or public policy (orden
público)
or any
international treaty or agreement binding upon Mexico, or generally accepted
principles of international law;
(v)
the applicable procedures under the laws of Mexico
with respect to the enforcement of foreign judgments (including issuance of
a
letter rogatory by the competent authority of such jurisdiction requesting
enforcement
of such judgment and the certification of such judgment as authentic by the
corresponding authorities of such jurisdiction in accordance with the laws
thereof) is complied with;
(vi)
the
action in respect of which such judgment is rendered is not the subject matter
of a lawsuit among the same parties pending before a Mexican court;
(vii)
the
courts of such jurisdiction would enforce Mexican judgments as a matter of
reciprocity;
(viii)
such
judgment is final in the jurisdiction where obtained, and
(ix)
the
documents relating to the legal action instituted before the courts of the
State
of New York, and the judgment rendered thereunder, would need to be translated
into Spanish by and expert duly authorized by the Mexican court for their
admissibility before the Mexican court before which enforcement is requested.
Such translation would have to be approved by the Mexican court after the
defendant had been given an opportunity to be heard with respect to the accuracy
of the translation, and such proceedings would thereafter be based upon the
translated documents.
In
any
proceeding taken in Mexico for the enforcement of a judgment rendered under
a
legal action instituted before the courts of the State of New York, a Mexican
court would apply Mexican procedural law.
The
effects that the New York court judgment would produce in Mexico will be
governed by Mexican Law.
18. No
Mexican stamp or other issuance or transfer taxes or duties and no capital
gains, income, withholding or other taxes are payable by or on behalf of
the
Initial Purchaser to Mexico or any political subdivision or taxing authority
thereof or therein in connection with the issue, sale and delivery by the
Company of the Notes to the Initial Purchaser or the sale and delivery by
the
Initial Purchaser of the Notes as contemplated in the Purchase Agreement
or in
connection with the guaranty of the Notes by the Mexican Guarantors or the
granting by any Mexican Subsidiary of a non-posessory pledge, or the granting
of
a real estate mortgage or the pledge by the Company of any Pledged Stock
(as
defined in the Indenture), other than the payment of registration duties
(derechos
de registro)
for the
recordation of the corresponding Mexican Collateral Documents at the appropriate
Public Registry of Commerce (Registro
Público de Comercio)
or
Public Registry of Property (Registro
Público de la Propiedad),
as the
case may be, and, in the case of mortgages on real estate located in the
State
of Jalisco, México, a tax on legal transactions and notarial instruments
(impuesto
sobre negocios jurídicos e instrumentos notariales).
19. Other
than as described in the Offering Memorandum, under the current laws and
regulations of Mexico, all payments of principal, premium (if any) and interest
on the Notes may be paid by the Company or any Mexican Guarantor to the
registered holder thereof in U.S. dollars (that may be obtained through the
conversion of pesos that may be freely transferred out of Mexico), and all
such
payments made to holders of the Notes who are non-residents of Mexico will
not
be subject to income, withholding or other taxes under the laws and regulations
of Mexico other than as described in the Offering Memorandum and are otherwise
free and clear of any other tax, duty, withholding or deduction in Mexico
and
without the necessity of obtaining any governmental authorization in
Mexico.
20. Other
than the steps contemplated in the Mexican Collateral Documents, it will
not be
necessary, under Mexican law, that any of such documents be filed, registered
or
recorded in any public office or elsewhere in Mexico in order to ensure their
validity, effectiveness, perfection, enforceability or admissibility into
evidence.
21. The
work
we performed in connection with the preparation of the Offering Memorandum
did
not disclose any information that gave us reason to believe that the Offering
Memorandum (except for the financial statements and other information of
a
statistical, accounting or financial nature included therein, as to which
we do
not express any view) as of its date and as of the date hereof, included
or
includes an untrue statement of a material fact or omitted or omits to state
a
material fact necessary in order to make the statements therein, in the light
of
the circumstances under which they were made, not misleading.
Our
opinion is subject to the following qualifications:
(a)
The
enforceability of the Transaction Documents may be subject to the limitations
imposed by concurso
mercantil,
bankruptcy, suspension of payments, insolvency, fraudulent conveyance,
dissolution, liquidation, reorganization, moratorium, tax, labor and similar
laws affecting the enforcement of creditors' rights generally or public
order;
(b)
Provisions
of the Transaction Documents granting discretionary authority to any party
thereto cannot be exercised in a manner inconsistent with relevant facts
nor
defeat any requirement from a competent authority to produce satisfactory
evidence as to the basis of any determination. In addition, under Mexican
law,
the parties thereto will have the right to contest in court any determination,
notice or certificate purporting to be conclusive and binding;
(c)
In
the
event that proceedings are brought in Mexico seeking performance of any payment
obligations of any party to the Transaction Documents, such party may discharge
its obligations by paying any sums due in a currency other than Mexican
currency, in Mexican pesos at the rate of exchange
prevailing
on the date when payment is made, as published by the Banco
de México
in the
Diario
Oficial de la Federación;
provisions purporting to limit the ability of the Company or the Subsidiaries
to
discharge their obligations as described above, or purporting to give a holder
of the Notes, the Collateral and Intercreditor Agent or any other party an
additional course of action seeking indemnity or compensation for possible
deficiencies arising or resulting from variations in rate of exchange, may
not
be enforceable in Mexico;
(d)
In the event that a legal proceeding is brought
before the courts of Mexico, a Spanish translation prepared and stamped by
a
court-approved translator of the
Transaction Documents will be
required in such proceeding, which translation must be approved by the court
after the parties to the relevant proceedings have been
given an opportunity to be
heard with respect to the accuracy of the translation, and proceedings would
thereafter be based upon the translated documents;
(e)
Covenants
in the Transaction Documents which purport to bind any of the parties thereto
on
matters reserved by Mexican law to shareholders, which require certain
action of the shareholders or which purport to bind shareholders or directors
of
the Company or its Mexican Subsidiaries to vote or refrain from voting their
shares, or
take or abstain from taking certain actions, are not enforceable in
Mexico;
(f)
Regarding
service of process, it should be noted that service of process by mail does
not
constitute personal service under Mexican law and, since such service is
considered to be a basic procedural requirement under such law, if for purposes
of proceedings outside Mexico service of process is made by mail, we believe
a
final
judgment based on such service of process would not be enforced by the courts
of
Mexico;
(g)
Pursuant
to the laws of Mexico, labor claims, claims of tax authorities for unpaid
taxes,
social security quotas, workers' housing fund quotas and retirement fund
quotas are preferred by statute and will have priority over claims of other
creditors;
(h)
Pursuant
to the laws of Mexico, labor claims, claims of tax authorities for unpaid
taxes,
social security quotas, workers' housing fund quotas and retirement fund
quotas are preferred by statute and will have priority over claims of other
creditors;
(i)
In
accordance with Mexican bankruptcy law (Ley
de Concursos Mercantiles),
any
provision in an agreement which makes the obligations of a party more onerous
due
to the fact of a filing for insolvency or bankruptcy may be considered
void;
(j)
Any provision in the Transaction Documents to the effect that invalidity
and
illegality of any part thereof will not invalidate the remaining obligations
of
the Transaction Documents may be unenforceable in Mexico to the extent that
such
provision constitutes an essential element of the Transaction
Documents;
(k)
In
any
proceeding brought before the courts of Mexico for the enforcement of any
of the
Transaction Documents, a Mexican court would apply Mexican procedural law
in
such proceedings;
(l)
Mexican
law does not permit the collection of interest on interest, and, consequently,
any relevant provision of the Transaction Documents relating to the payment
of
interest on interest may be unenforceable in Mexico;
(m)
Choice
of
forum provisions which provide some, but not all, of the parties to an agreement
the ability to select the forum, are not valid under Mexican procedural
law;
(n)
Generally,
the waivers by the Mexican Guarantors to the benefits of escussio,
order
and division set fourth in Mexico’s Federal Civil Code and in
corresponding sections of the civil codes of each of the states of
Mexico,
as set forth in Section /●/ of the Indenture are valid; however, a Mexican court
could determine that other waivers of the Mexican Guarantors to possible
discharges based on the invalidity, illegality, unenforceability, amendment,
termination, discharge or similar situations affecting the Guaranteed
Obligations, are contrary to public policy (orden
público).
As a
general principle under Mexican law, the guarantees would be deemed limited
or
discharged to the same extent as the Obligations;
(o)
Generally,
Mexican law does not allow a secured party to seize or sell collateral unless
appropriate judicial procedures have been followed. Absent a court decision,
a
secured creditor would require the debtor’s consent to assume ownership of the
pledged assets. Under Mexican law, powers of attorney granted by the Company,
and its Mexican Subsidiaries should be formalized before a Mexican Notary
Public, or in certain cases, a public broker (corredor
público),
and
general powers of attorney should be recorded in the Public Registry of Commerce
of the domicile of the corresponding company;
(p)
Although
the assets of the Company and its Mexican Subsidiaries are generally not
subject
to immunity from attachment, assets of such entities that are essential for
the
conduct of their operations may not be attached separately, although they
may be
attached jointly with the business concern (this limitation does not apply
to
foreclosures under the Non-Possessory Pledge Agreements);
(q)
Absent
an
approval of the pledge of stock by the shareholders of Vitro, S.A. de C.V.,
a
shareholder of Vitro, S.A. de C.V. could attempt to contest the sale of the
Pledged Stock in a foreclosure, based on an alleged violation to the bylaws
of
Vitro, S.A. de C.V.;
(r)
Provisions
in the Mexican Collateral Documents regarding reinstatement of a security
interest upon devolution to the bankruptcy estate of amounts previously received
by a Secured Party, are subject to rules regarding fraudulent conveyance and
recognition of credits under Mexican bankruptcy law.
(s)
The
statements made in paragraph 20 above are based upon our conferences with
certain officers of, and with the accountants and other outside counsel for,
the
Company, your representatives and your counsel, concerning the preparation
of
the Offering Memorandum and the examination of such documents that were provided
to us by the Company. Although we made certain inquiries and investigations
in
connection with the preparation of the Offering Memorandum, the limitations
inherent to the role of special outside counsel are such that we cannot and
do
not assume any responsibility for the accuracy or completeness of the statements
made in the Offering Memorandum (except for the opinions in paragraph 10 above).
We are furnishing the statements in paragraph 20 to you only in order to assist
you to establish certain defenses that we understand may be available to you
under the securities laws of the United States of America. However, such
statements should not be construed as stating any view, express or implied,
based upon the federal or state securities laws of the United States of America,
its rules or regulations, the interpretation thereof or the practice thereunder,
with respect to which we are not qualified to express any view.
We
are
admitted to practice in Mexico, and we express no opinion as to matters governed
by any laws other than the laws of Mexico. In particular, we do not purport
to
pass on any matter governed by the laws of the United States of America or
any
of its constituent States or the laws of the Republic of Panama.
To
the
extent that the laws of the United States or any of its constituent States,
the
laws of the Republic of Panama, or the intellectual property laws of Mexico
may
be relevant to the opinions expressed herein, we have, with your consent, relied
on, assumed (without independent investigation) the correctness of, and our
opinion is subject to the assumptions, qualifications and limitations contained
in, the opinions dated the date hereof of (i) Cravath, Swaine & Xxxxx LLP,
special New York counsel for the Company; (ii) Xxxxxxxx, Xxx & Xxxxxx, U.S.
intellectual property counsel for the Company; (iii) MacMillan, Xxxxxxxx &
Xxxx, LLC, special Ohio counsel for the Company (iv) Jalife, Caballero, Xxxxxxx
& Asociados, Mexican intellectual property counsel for the Company; (iv)
Lic. Xxxxxxxxx Xxxxxx Xxxxx, General Counsel for the Company, and (v) De Obaldía
& Xxxxxx xx Xxxxxxx, special Panamanian counsel for the
Company.
We
are
furnishing this opinion to you, as the Initial Purchaser of the Notes, solely
for your benefit. This opinion may not be relied upon by any other person
(including by any person that acquires the Notes from you) or for any other
purpose. It may not be used, circulated, quoted or otherwise referred to for
any
other purpose.
Very
truly yours,
SCHEDULE
1
Mexican
Subsidiaries of the Company
Compañía
Vidriera, S.A. de C.V.
Fabricación
de Máquinas, S.A. de C.V.
Industria
del Alcali, S.A. de C.V.
Procesadora
de Materias Xxxxxx Industrializables, S.A. de C.V.
Vidriera
Monterrey, S.A. de C.V.
Vidriera
Guadalajara, S.A. de C.V.
Vidriera
Querétaro, S.A. de C.V.
Vidriera
Toluca, S.A. de C.V.
Vidriera
Los Xxxxx, X.X. de C.V.
SCHEDULE
2
List
of
Agreements
| 1. |
Consignment
Agreement, dated July 13, 1998, between Avon de C.V. (sic)
and Vitro (sic).
|
| 2. |
Acuerdo
de Asociación Estratégica,
dated December 2000, between Vitro Envases Norteamérica, S.A. de C.V. and
Bacardi y Cía., S.A.
|
| 3. |
Acuerdo
de Asociación Estratégica, dated May 13, 2000,
between Vitro Envases (sic)
and Industrias Vinícolas Xxxxx Xxxxxx (sic).
|
| 4. |
Alianza
Comercial, dated August 29, 2001, between
Vitro Envases (sic)
and Jugos del Xxxxx.
|
| 5. |
Contrato
de Alianza Estratégica de Abastecimiento de Envases xx Xxxxxx,
dated
November
19, 1993, between Vidriera
Monterrey, S.A. de C.V. and Grupo Nestlé México.
|
| 6. |
Acuerdos
de Calidad, dated
March,
2001, between Compañía Vidriera,
S.A. de C.V. and Nestlé México, S.A. de
C.V.
|
| 7. |
Acuerdo
de Asociación Estratégica, dated April 1, 1998,
between Vitro Envases (sic)
and Productos de Uva, S.A. de C.V., Tequila Viuda xx Xxxxxx, and
Vinícola
X.X. XXXXX.
|
| 8. |
Acuerdo
de Asociación Estratégica, dated October 25, 1993,
between Vitro Envases (sic)
and Salsa Tamazula, S.A. de C.V.
|
| 9. |
Acuerdo
de Asociación Estratégica, dated May 1, 2000,
between Vitro Envases (sic)
and Suntory Mexicana, S.A. de C.V.
|
| 10. |
Acuerdo
de Asociación Estratégica, dated December 20, 2002,
between Vitro Envases (sic)
and Tequila Cazadores de Arandas, S. de X.X. de
C.V.
|
| 11. |
Contrato
de Suministro y Alianza Estratégica, dated September 3,
1997,
between Vidriera Guadalajara, S.A. de C.V. and Affiliates and Tequila
Herradura, S.A. de C.V. and
Affiliates.
|
| 12. |
Acuerdo
de Asociación Estratégica, dated December 23, 1998,
between Vitro Envases (sic)
and Xxxxx Redondo, S.A. de C.V.
|
| 13. |
Contrato
de Suministro de Pintura Termoplástica Polvo,
Pasta y Vehículo, dated February 26, 1996, between
Vitro
Corporativo, S.A. de C.V., and Ciemex, S.A. de
C.V.
|
| 14. |
Contrato
de Suministro de Esmaltes Cerámicos,
dated October 1, 1996, between Vitro Corporativo, S.A. de C.V.,
and Ferro
Mexicana, S.A. de C.V.
|
| 15. |
Contrato
de Compraventa de Gas Natural, dated
November 1, 1995, between Vidriera Los Xxxxx, X.X. de C.V.; Vidriera
Toluca, S.A. de C.V.; Vidriera Guadalajara, S.A. de C.V.; Vidriera
Querétaro, S.A. de C.V.; Vidriera México, S.A. de C.V.; Vitro Flotado,
S.A. de C.V.; Xxxxxx Plano de México, S.A. de C.V.; Vitro Fibras, S.A. de
C.V.; Industria del Álcali, S.A. de C.V, and Pemex Gas y Petroquímica
Básica.
|
| 16. |
Contrato
de Suministro de Producto, dated
November 1, 1999, between Vitro
Corporativo, S.A. de C.V.; Vidriera Monterrey, S.A. de C.V.; Vidriera
México, S.A. de C.V.; Vidriera Los Xxxxx, X.X. de C.V.; Vidriera
Guadalajara, S.A. de C.V.; Vidriera Querétaro, S.A. de C.V.; Vidriera
Mexicali, S.A. de C.V.; Vidriera Toluca, S.A. de C.V.; Xxxxxx Plano
de
México, S.A. de C.V.; Vitrofibras, S.A. de C.V.; Vitrocrisa, S.A.
de C.V.;
Vitroflotado, S.A. de C.V., and Praxair México, S.A. de
C.V.
|
| 17. |
Supply
and Strategic Alliance Agreement, dated June 27, 1997, between
Vidriera
Monterrey, S.A. de C.V.; Vidriera Guadalajara, S.A. de C.V.; Vidriera
Querétaro, S.A. de C.V.; Vidriera México, S.A. de C.V.; Vidriera Los
Xxxxx, X.X. de C.V.; Vidriera Toluca, S.A. de C.V.; Vitro Flotado,
S.A. de
C.V.; Xxxxxx Plano de México, S.A. de C.V.; Vitrocrisa, S.A. de C.V.;
Vitro PQ Química, S.A. de C.V.; Vitro Fibras, S.A. (sic);
Fabricación de Máquinas, S.A. (sic);
Fabricantes de Aparatos Domésticos, S.A. de C.V.; Vitro, S.A.; Grupo
Materias Xxxxxx de México, S. de X.X. de C.V. and UNIMIN
Corporation.
|
| 18. |
Contrato
de Compraventa y Suministro, dated
December 30, 1998, between
Vitro
Corporativo, S.A. de C.V., and Empresas de Empaques de Cartón Titán, S.A.
de C.V., Cartónpack, S.A. de C.V., and Envases y Empaques de México, S.A.
de C.V.
|
| 19. |
Contrato
de Compra Venta para el Suministro de Empaque de Cartón Corrugado y
Laminado,
dated July 30, 1997, between
Vitro
Corporativo, S.A. de C.V. and Ingeniería en Empaque Arvisa, S.A. de
C.V.
|
| 20. |
Contrato
de Suministro,
dated September 11, 2000, between
Vitro
Corporativo, S.A. de C.V., and Ingeniería en Empaque Arvisa, S.A. de
C.V.
|
| 21. |
Contrato
de Abastecimiento (Compra-Venta) para el Suministro y Consumo de
Empaque
de Cartón Corrugado Sencillo,
dated April 15, 1986, between
Vitro
Corporativo, S.A. and Corrugados La Colmena, S.A. de
C.V.
|
| 22. |
Contrato
de Compraventa y Suministro, between
Vitro
Corporativo, S.A. de C.V., and Smurfit Cartón y Papel de México, S.A. de
C.V.
|
| 23. |
Contrato
de Mediación Mercantil,
dated June 1, 1998, between
Vitro
Corporativo, S.A. de C.V., and Ferro Mexicana, S.A. de
C.V.
|
| 24. |
Contrato
de Comisión Mercantil,
dated March 11, 2002, between
Fabricación
de Máquinas, S.A. de C.V. and Ing. Xxxx Xxxx Xxxxx
Xxxxxxx.
|
| 25. |
Contrato
de Prestación de Servicios de Limpieza de Pedacería xx
Xxxxxx,
dated January 13, 2000, between
Procesadora
de Materias Xxxxxx Industrializables, S.A. de C.V. and Recicladora
xx
Xxxxxx Nuevo Xxxx, X.X. de C.V.
|
| 26. |
Acuerdos
de Tarifas,
dated June 2, 2000, between Grupo Vitro (sic)
and Ferrosur, S.A. de C.V.
|
| 27. |
Contrato
de Prestación de Servicios de Transporte, dated
May 19, 1998, between
Vitro
Corporativo, S.A. de C.V. and Transportes Sale, S.A. de
C.V.
|
| 28. |
Contrato
de Fideicomiso Irrevocable para la Creación de un Fondo para el Pago de
Pensiones por Jubilación,
dated May 19, 1998, between Vidriera Monterrey, S.A. de C.V.; Vidriera
México, S.A. de C.V.; Vidriera Los Xxxxx, X.X. de C.V.; Vidriera
Guadalajara, S.A. de C.V.; Vidriera Querétaro, S.A. de C.V.; Vidriera
Toluca, S.A. de C.V.; Vidriera Mexicali, S.A. de C.V.; Metalúrgica
Oriental, S.A. de C.V.; Procesadora de Materias Xxxxxx Industrializables,
S.A. de C.V.; Ampolletas, S.A.; Plásticos Xxxxx, X.X. de C.V.; Industria
del Álcali, S.A. de C.V.; Vitro Fibras, S.A. de C.V.; Fabricación de
Máquinas, S.A. de C.V.; Xxxxxx Plano de México, S.A. de C.V.; Xxxxxx
Plano, S.A. de C.V.; Vitro Flotado, S.A. de C.V.; Xxxxxxxxx Inastillables
de México, S.A. de C.V.; Shatterproof de México, S.A. de C.V.; Auto
Templex, S.A. de C.V.; Distribuidora Nacional xx Xxxxxx, X.X. de
C.V.;
Fabricación de Cubiertos, S.A. de C.V.; Vitro Corporativo, S.A. de C.V.,
and Banco Nacional de México, S.A., División
Fiduciaria.
|
| 29. |
Contrato
de Arrendamiento y Mantenimiento de Equipo Móvil Diverso,
dated January 31, 2000, between
Vitro
Corporativo, S.A. de C.V. and Xxxxxx Equipment, S.A. de
C.V.
|
| 30. |
Contrato
de Arrendamiento,
dated April 1, 2002, between Compañía Vidriera, S.A. de C.V. and Xxxxxx
Xxxxxx Xxxxxxxxx.
|
| 31. |
Contrato
de Servicios Administrativos, dated
May 1, 2000, between Vitro Corporativo, S.A. de C.V. and Fabricación de
Máquinas, S.A. de C.V.
|
| 32. |
Contrato
de Prestación de Servicios, dated
November 1, 2000, between Vidriera los Xxxxx, X.X. de C.V. and
Compañía
Vidriera, S.A. de C.V.
|
| 33. |
Contrato
de Arrendamiento, dated
November 1, 2000, between Vidriera los Xxxxx, X.X. de C.V. and
Compañía
Vidriera, S.A. de C.V., as amended on January 1,
2001.
|
| 34. |
Contrato
de Prestación de Servicios, dated
November 1, 2000, between Vidriera Mexicali, S.A. de C.V. and Compañía
Vidriera, S.A. de C.V.
|
| 35. |
Contrato
de Arrendamiento, dated
November 1, 2000, between Vidriera Mexicali, S.A. de C.V. and Compañía
Vidriera, S.A. de C.V.
|
| 36. |
Contrato
de Prestación de Servicios, dated
November 1, 2000, between Vidriera Guadalajara, S.A. de C.V. and
Compañía
Vidriera, S.A. de C.V.
|
| 37. |
Contrato
de Arrendamiento, dated
November 1, 2000, between Vidriera Guadalajara, S.A. de C.V. and
Compañía
Vidriera, S.A. de C.V., as amended on January 1,
2001.
|
| 38. |
Contrato
de Prestación de Servicios, dated
November 1, 2000, between Vidriera Monterrey, S.A. de C.V. and
Compañía
Vidriera, S.A. de C.V.
|
| 39. |
Contrato
de Arrendamiento, dated
November 1, 2000, between Vidriera Monterrey, S.A. de C.V. and
Compañía
Vidriera, S.A. de C.V., as amended on January 1,
2001.
|
| 40. |
Contrato
de Asistencia Técnica, dated
June 20, 2002, between Vidriera Monterrey, S.A. de C.V. and Vidriera
Guatemalteca, S.A.
|
| 41. |
Contrato
de Asistencia Técnica, dated
June 20, 2002, between Vidriera Monterrey, S.A. de C.V. and Vidriera
Centroamericana, S.A.
|
| 42. |
Contrato
de Suministro,
dated July 1, 2000, between Fabricación de Máquinas, S.A. de C.V.;
Vidriera Querétaro, S.A. de C.V.; Vidriera Monterrey, S.A. de C.V.;
Vidriera Mexicali, S.A. de C.V.; Vidriera México, S.A. de C.V.; Vidriera
Toluca, S.A. de C.V.; Vidriera los Xxxxx, X.X. de C.V.; Vidriera
Guadalajara, S.A. de C.V., and Vidriolux, S.A. de
C.V.
|
| 43. |
Contrato
de Prestación de Servicios, dated
November 1, 2000, between Vidriera Querétaro, S.A. de C.V. and Compañía
Vidriera, S.A. de C.V.
|
| 44. |
Contrato
de Arrendamiento, dated
November 1, 2000, between Vidriera Querétaro, S.A. de C.V. and Compañía
Vidriera, S.A. de C.V., as amended on January 1,
2001.
|
| 45. |
Contrato
de Prestación de Servicios, dated
November 1, 2000, between Vidriera Toluca, S.A. de C.V. and Compañía
Vidriera, S.A. de C.V.
|
| 46. |
Contrato
de Arrendamiento, dated
November 1, 2000, between Vidriera Toluca, S.A. de C.V. and Compañía
Vidriera, S.A. de C.V., as amended on January 1,
2001.
|
| 47. |
Contrato
de Prestación de Servicios, dated
November 1, 2000, between Vidriera México, S.A. de C.V. and Compañía
Vidriera, S.A. de C.V.
|
| 48. |
Convenio
de Reconocimiento de Adeudos, dated
January 26, 1996, between Compañía Vidriera,
S.A. de C.V.; Vitro,
S.A. de C.V.; Vidriera Querétaro, S.A. de C.V.; and Banca Serfín, S.A., as
amended on June
19, 1997, March 27, 1998, and April 10,
2002.
|
| 49. |
Convenio
de Reconocimiento de Adeudos, dated
January 26, 1996, between Compañía Vidriera,
S.A. de C.V.; Vitro,
S.A. de C.V.; Vidriera Mexicali, S.A. de C.V.; and Banca Serfín, S.A., as
amended on June
19, 1997, March 27, 1998, and April 10,
2002.
|
| 50. |
Contrato
de Apertura de Crédito Simple con Garantía Hipotecaria,
dated December 31, 2003, between Vitro, S.A. de C.V.; Vidriera
Toluca,
S.A. de C.V.; Crisa Corporation; Vitro Corporativo, S.A. de C.V.;
Fomento
Inmobiliario y de la Construcción, S.A. de C.V., and Banco Inbursa, S.A.,
Institución de Banca Múltiple, Grupo Financiero
Inbursa.
|
| 51. |
Factoring
Agreement for the Purchase and Sale of Accounts Receivable, dated
August
4, 2000, between
Vitro
Envases Norteamérica, S.A. de C.V.; Vidriera
Monterrey,
S.A. de C.V.;
Vidriera México,
S.A. de C.V.;
Vidriera los Xxxxx,
X.X. de C.V.;
Vidriera Guadalajara,
S.A. de C.V.;
Vidriera Querétaro,
S.A. de C.V.;
Vidriera Toluca,
S.A. de C.V.;
Vidriera Mexicali,
S.A. de C.V.;
Compañía Mexicana de Envases, S.A. de C.V. and
Transamerica Commercial Finance Corporation, as amended on November
1,
2000 and April 20, 2002, and waiver letter from Transamerica Commercial
Finance Corporation dated June 9,
2004.
|
Exhibit
C-1
July
/●/,
2004
Vitro
Envases Norteamerica, S.A. de C.V.
$170,000,000
Aggregate Principal Amount of
/●/%
Senior Secured Guaranteed Notes due /●/
Ladies
and Gentlemen:
We
have
acted as special United States counsel for Vitro Envases Norteamerica, S.A.
de
C.V., a Mexican corporation (sociedad
anónima de capital variable)
(the
"Company"),
and
for those subsidiaries of the Company listed on Schedule
I
hereto
(the "Subsidiaries"),
in
connection with the purchase by Citigroup Global Markets Inc. (the "Initial
Purchaser")
pursuant to the Purchase Agreement dated as of July /●/, 2004 (the "Purchase
Agreement"),
between the Company and the Initial Purchaser, from the Company of $170,000,000
aggregate principal amount of the Company's /●/% Senior Secured Guaranteed Notes
due /●/ (the "Notes").
This
opinion is being delivered to you pursuant to Section 6(c) of the
Purchase
Agreement.
In
that
connection, we have examined originals, or copies certified or otherwise
identified to our satisfaction, of such documents, corporate records and
other
instruments as we have deemed necessary or appropriate for the purposes of
this
opinion, including: (a) the Offering Memorandum dated July /●/, 2004 (the
"Offering
Memorandum"),
relating to the Notes, (b) the Purchase Agreement, (c) the Indenture
dated
as of July /●/, 2004 (the "Indenture"),
among
the Company, each of the Subsidiaries (other than Centro de Tecnología Vidriera
Ltd. ("CTV"))
and
Bank of New York, as trustee ("Trustee"),
(d) the form of the Notes, (e) the Master Collateral and Intercreditor
Agreement dated as of July /●/, 2004 (the "Master
Collateral Agreement"),
among
the Company, each of the Subsidiaries, the Collateral and Intercreditor Agent
(the "Collateral
Agent")
and
the Trustee, (f) the Security Agreement dated as of July /●/, 2004 (the
"Vitro
Packaging Security Agreement"),
between the Collateral Agent and Vitro Packaging, Inc. ("Vitro
Packaging"),
(g)
the [Account Control Agreement] dated as of July /●/, 2004 (the "Vitro
Packaging Account Control Agreement"),
between the Collateral Agent and Vitro Packaging and (h) the [Account Control
Agreement] dated as of July /●/, 2004 (the "FAMA
Account Control Agreement"),
between the Collateral Agent and Fabricación de Máquinas, S.A. de C.V.
("FAMA").
The
Purchase Agreement, the Indenture, the Notes, the Master Collateral Agreement,
the Vitro Packaging Security Agreement, the Vitro Packaging Account Control
Agreement and the FAMA Account Control Agreement are collectively referred
to as
the "Transaction
Documents".
Account No. /●/ maintained with /●/ Bank and Account No. /●/ maintained
with /●/ Bank are referred to as the "Deposit
Accounts".
References in this opinion to the "UCC" are to the Uniform Commercial Code
currently in effect in the State of New York.
In
rendering the opinions contained herein, we have assumed: (a) that
each of
the parties to the Transaction Documents is duly organized, validly existing
and, if
applicable,
in good standing under the laws of the jurisdiction of its incorporation
or
formation, and has all requisite power and authority to execute, deliver
and
perform its obligations under the Transaction Documents, (b) that
each of
the parties to the Transaction Documents has duly authorized the Transaction
Documents to which it is a party, (c) that each of the parties to
the
Transaction Documents has duly executed and delivered the Transaction Documents
to which it is a party under the laws of each jurisdiction (other than, in
the
case of the Company and the Subsidiaries, the State of New York) to which
any of
the parties thereto may be subject, (d) that each of the parties to
the
Transaction Documents has the legal power to act in the capacity or capacities
in which it is to act thereunder, (e) that each of the Transaction
Documents constitutes a legal, valid and binding obligation of each of its
respective parties, and is enforceable, under the laws of each jurisdiction
(other than, in the case of the Company and the Subsidiaries, the State of
New
York) to which any of the parties thereto may be subject, (f) the performance
of, and compliance with, the covenants contained in the Transaction Documents
by
each of the parties thereto, (g) the authenticity of all documents submitted
to
us as originals, (h) the conformity to the original documents of all
documents submitted to us as copies, (i) the genuineness of all signatures
on all documents submitted to us and (j) that the Notes conform to
the form
of Notes examined by us. We have also assumed that the appointment of CT
Corporation System by the Company or the Subsidiaries, as the case may be,
as
authorized agent to receive service of process in accordance with
Section 14 of the Purchase Agreement, Section 12.6 of the Indenture,
Section 20 of the Notes, Section /●/ of the Master Collateral Agreement, Section
/●/ of the Vitro Packaging Security Agreement, Section /●/ of the Vitro
Packaging Account Control Agreement and Section /●/ of the FAMA Account
Control Agreement is valid under the laws of the United Mexican States
("Mexico")
and
have relied, with respect to certain factual matters, on the representations
and
warranties contained in the Transaction Documents and certificates of the
Company.
Based
on
the foregoing, and subject to the assumptions, qualifications and limitations
set forth herein, we are of opinion as follows:
| 1. |
Assuming
the Purchase Agreement has been duly authorized, executed and delivered
by
the Company under the laws of Mexico, the Purchase Agreement has
been duly
executed and delivered by the
Company.
|
| 2. |
Assuming
the Indenture has been duly authorized, executed and delivered
by each of
the Company and the Subsidiaries (other than CTV) under the laws
of the
jurisdiction of their organization or formation, the Indenture
has been
duly executed and delivered by each of the Company and the Subsidiaries
(other than CTV) and constitutes a legal, valid and binding obligation
of
each of the Company and the Subsidiaries (other than CTV) enforceable
against each of them in accordance with its
terms.
|
| 3. |
Assuming
the Notes have been duly authorized, executed and delivered by
the Company
under the laws of Mexico, the Notes have been duly executed and
delivered
by the Company and, when authenticated in accordance with the
|
|
provisions
of the Indenture and delivered to and paid for by the Initial
Purchaser
pursuant to the Purchase Agreement, will constitute legal,
valid and
binding obligations of the Company entitled to the benefits
of the
Indenture and enforceable against the Company in accordance
with their
terms.
|
| 4. |
Assuming
the Master Collateral Agreement has been duly authorized, executed
and
delivered by each of the Company and the Subsidiaries under
the laws of
the jurisdiction of their organization or formation, the Master
Collateral
Agreement has been duly executed and delivered by each of the
Company and
the Subsidiaries and constitutes a legal, valid and binding
obligation of
each of the Company and the Subsidiaries enforceable against
each of them
in accordance with its terms.
|
| 5. |
Assuming
the Vitro Packaging Security Agreement has been duly authorized,
executed
and delivered by Vitro Packaging under the laws of the State
of Delaware,
the Vitro Packaging Security Agreement has been duly executed
and
delivered by Vitro Packaging and constitutes a legal, valid
and binding
obligation of Vitro Packaging enforceable against Vitro Packaging
in
accordance with its terms.
|
| 6. |
Assuming
the Vitro Packaging Account Control Agreement has been duly
authorized,
executed and delivered by Vitro Packaging under the laws of
the State of
Delaware, the Vitro Packaging Account Control Agreement has
been duly
executed and delivered by Vitro Packaging and constitutes a
legal, valid
and binding obligation of Vitro Packaging enforceable against
Vitro
Packaging in accordance with its
terms.
|
| 7. |
Assuming
the FAMA Account Control Agreement has been duly authorized,
executed and
delivered by FAMA under the laws of Mexico, the FAMA Account
Control
Agreement has been duly executed and delivered by FAMA and
constitutes a
legal, valid and binding obligation of FAMA enforceable against
Vitro
Packaging in accordance with its
terms.
|
| 8. |
No
authorization, approval or other action by, and no notice to,
consent of,
order of, or filing with, any United States Federal
or New York
governmental authority or regulatory body is required for the
execution
and delivery of the Transaction Documents or the consummation
of the
transactions contemplated therein, except for any authorizations
required
under state securities or "blue sky"
laws.
|
| 9. |
None
of the execution and delivery of the Transaction Documents,
the issue and
sale of the Notes, the consummation of any other of the
transactions
contemplated by the Transaction Documents or the performance
of the terms
of the Transaction Documents will (i) conflict with,
result in a
breach of, or constitute a default under, the terms of
any of the
agreements and instruments listed in Annex A
attached hereto or (ii) contravene any law, rule
or regulation of the
United States of America or the State of New York
or, to our
knowledge, based solely on
|
|
inquiry
of the General Counsel and Chief Financial Officer of
the Company, any
order or decree of any United States Federal or New York
Court or
government agency or
instrumentality.
|
| 10. |
The
statements made in the Offering Memorandum under the
captions "Description
of the Notes" and "Notice to Investors", insofar as they
purport to
constitute summaries of certain provisions of the Indenture,
the Notes and
the Master Collateral Agreement, and under the caption
"Certain Income Tax
Considerations—United States Taxation", insofar as they purport
to
describe the material United States Federal income tax
consequences of an
investment in the Notes, fairly summarize the matters
therein
described.
|
| 11. |
The
statements made in the Offering Memorandum under the
captions "Description
of the Notes" and "Notice to Investors", insofar as
they purport to
constitute summaries of certain provisions of the Indenture,
the Notes and
the Master Collateral Agreement, and under the caption
"Certain Income Tax
Considerations—United States Taxation", insofar as they purport
to
describe the material United States Federal income
tax consequences of an
investment in the Notes, fairly summarize the matters
therein
described.
|
| 12. |
Assuming
the validity of such actions under the laws of
Mexico, under the laws of
the State of New York, the Company or the Subsidiaries,
as the case may
be, have (i) pursuant to Section 14
of the Purchase Agreement,
Section [12.6] of the Indenture, Section [20]
of the Notes and
Section [11.9] of the Master Collateral
Agreement, to the extent and
for the matters set forth therein, validly and
irrevocably submitted to
the personal jurisdiction of any New York State
or United States Federal
court located in the City of New York and County
of New York in any action
brought by any other party thereto arising out
of or relating to the
Purchase Agreement, the Indenture, the Notes or
the Master Collateral
Agreement, (ii) pursuant to Section [14]
of the Purchase
Agreement, Section [12.6] of the Indenture,
Section [20] of the
Notes and Section 11.9 of the Master Collateral
Agreement, to the
extent and for the matters set forth therein, validly
and irrevocably
waived any objection to the laying of venue of
any such action in any such
court and (iii) validly appointed CT Corporation
System as its
authorized agent for the purposes described in
Section [14] of the
Purchase
|
|
Agreement,
Section [12.6] of the Indenture, Section [20] of
the Notes and
Section [11.9] of the Master Collateral Agreement; and,
assuming the
validity of such actions under the laws of Mexico, service of process
effected in the manner set forth in Section [14] of the
Purchase
Agreement, Section [12.6] of the Indenture, Section [20]
of the
Notes and Section [11.9] of the Master Collateral Agreement
will be
effective, under the laws of the State of New York, to confer valid
personal jurisdiction over the Company or the Subsidiaries, as
the case
may be, in any such proceeding.
|
| 13. |
The
Company is not required to register as an "investment company"
under the
Investment Company Act of 1940, as
amended.
|
| 14. |
(i)The
provisions of the Vitro Packaging Security Agreement are effective
to
create in favor of the Collateral Agent a valid security interest
in all
right, title and interest of Vitro Packaging in such of the Collateral
(as
defined therein) as constitutes "accounts", "chattel paper", "deposit
accounts", "documents", "general intangibles", "instruments", "inventory",
"investment property" and "letter-of-credit rights" within the
meaning of
the New York UCC and (ii) the provisions of the Master Collateral
Agreement are effective to create in favor of the Collateral Agent
a valid
security interest in all right, title and interest of FAMA in such
of the
[FAMA U.S. Collateral] (as defined therein) as constitutes "accounts",
"chattel paper", "deposit accounts" and "investment property" within
the
meaning of the New York UCC, (such of the Collateral and the [FAMA
U.S.
Collateral] being hereinafter referred to as the "Specified
Collateral"),
to the extent that the creation of security interests in the Specified
Collateral is governed by the New York
UCC.
|
Our
opinions expressed in this paragraph 14 are further qualified as
follows:
(a)
we
express no opinion as to Vitro Packaging's or FAMA's rights in or title
to any
Collateral or [FAMA U.S. Collateral];
(b)
we
express no opinion as to the validity or perfection of any security interests
in
any item of collateral other than the Specified Collateral, in any item
of
Collateral or [FAMA U.S. Collateral] which is expressly excluded from the
application of the New York UCC pursuant to Section 9-109 thereof, in any
item
of Collateral or [FAMA U.S. Collateral] which consists of fixtures (as
defined
in Section 9-102(a)(41) of the New York UCC) or in any item of Collateral
or
[FAMA U.S. Collateral] which is subject to (A) a statute or treaty of the
United
States which provides for a national or international registration or a
national
or international certificate of title for the perfection of a security
interest
therein or which specifies a place of filing different from that specified
in
the New York UCC for filing to perfect such security interest or (B) a
certificate of title statute;
(c)
we
express no opinion as to the perfection of any security interest in any
proceeds
and note that any such interest is limited to the extent set forth in Section
9-315 of the New York UCC;
(d)
we
express no opinion as to the priority of any security interest;
(e)
in
the case of property which becomes Collateral or [FAMA U.S. Collateral]
on any
day after the filing of a bankruptcy petition with respect to Vitro Packaging
or
FAMA, as the case may be, Section 552 of Title 11 of the United States
Code (the
"Bankruptcy
Code")
limits
the extent to which property acquired by a debtor after the commencement
of a
case under the Bankruptcy Code may be subject to a security interest arising
from a security agreement entered into by the debtor before the commencement
of
such case;
(f)
we
express no opinion as to the validity or enforceability of any security
interest
in "goods" (as defined in the New York UCC) which have been bought from
Vitro
Packaging by a buyer in the ordinary course of business (as defined in
Section
1-201 of the New York UCC); and
(g)
we
express no opinion in paragraph 14 as to what law, pursuant to Section
9-301 of
the New York UCC, would govern perfection of the security interests granted
in
the Collateral or [FAMA U.S. Collateral].
The
provisions of the Vitro Packaging Account Control Agreement and the FAMA
Account
Control Agreement are effective to perfect the security interest of the
Collateral Agent in the Deposit Account which is the subject of such agreement.
For purposes of the foregoing opinion, we have assumed that each of the
Deposit
Accounts is a "deposit account" within the meaning of Section 9-102 of
the New
York UCC.
The
foregoing opinions are subject to the following qualifications and
limitations:
(a)
the
enforceability of the Transaction Documents is subject to applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer or conveyance
and
other similar laws affecting creditors' rights generally from time to time
in
effect to general principles of equity, including, without limitation,
concepts
of materiality, reasonableness, good faith and fair dealing, regardless
of
whether considered in a proceeding in equity or at law and to judicial
application of foreign laws or foreign governmental actions affecting creditors'
rights (as to which matters we understand you have satisfied yourself);
(b)
insofar as provisions contained in the Transaction Documents provide for
indemnification, the enforcement thereof may be limited by public policy
considerations;
(c)
certain provisions of the Vitro Packaging Security Agreement and the Master
Collateral Agreement (with respect to the creation, perfection and enforcement
of a security interest in the [FAMA U.S. Collateral]) are or may be
unenforceable in whole or in part under the laws of the State of New York,
but
the inclusion of such provisions does not affect the validity of the Vitro
Packaging Security Agreement or the Master Collateral Agreement, and each
of the
foregoing agreements contains adequate provisions for the practical realization
of the principal rights and benefits intended to be afforded
thereby;
(d)
the
availability of a decree for specific performance, an injunction or any
other
equitable remedy is subject to the discretion of the court requested to
issue
any such decree, injunction or remedy; and
(e)
the
choice of the law of the State of New York as the governing law of the
Transaction Documents is subject to the limitations specified in Section
5-1401
of the General Obligations Law of the State of New York, and we express
no
opinion as to matters which, as a result of the application of said Section
5-1401, are not governed by New York law.
We
express no opinion herein as to (i) Section /●/ of the Purchase
Agreement, Section [12.6] of the Indenture, Section [20]
of the Notes
and Section [11.9] of the Master Collateral Agreement insofar as
they
relate to waiver of an inconvenient forum, (ii) the enforceability
of
Section [18] of the Purchase Agreement, Section [12.6] of
the
Indenture, Section [20] of the Notes and Section [11.11]
of the Master
Collateral Agreement to the extent that the waiver of immunity set forth
therein
purports to apply to any immunity to which the Company or the Subsidiaries
may
become entitled after the date hereof, (iii) Section [16]
of the
Purchase Agreement, Section [12.6] of the Indenture, Section [14]
of
the Notes and Section /●/ of the Master Collateral Agreement relating to
currency indemnities, (iv) Section [14] of the Purchase Agreement,
Section [12.6] of the Indenture, Section [20] of the Notes
and
Section [11.9] of the Master Collateral Agreement insofar as they
relate to
subject matter jurisdiction of the United States Federal courts in the
City of
New York and the County of New York to adjudicate any controversy related
to
such agreements or (v) compliance with, or the application or effect
of,
Federal or state securities laws except to the extent set forth in
paragraph 11.
We
are
admitted to practice in the State of New York, and we express no opinion
as to
matters governed by any laws other than the laws of the State of New York
and
the Federal laws of the United States of America. In particular, we do
not
purport to pass on any matter governed by the laws of Mexico.
To
the
extent that the laws of Mexico, Ohio, Panama, Switzerland, Delaware or
the
intellectual property laws of the United States may be relevant to the
opinions
expressed herein, we have, with your consent, relied on, assumed (without
independent investigation) the correctness of, and our opinion is subject
to the
assumptions, qualifications and limitations contained in, the opinions
dated the
date hereof of (i) Lic. Xxxxxxxxx Xxxxxx, General Counsel
for the
Company, (ii) Xxxx Xxxxx, Xxxxxxx Xxxxxx, Xxxxxxxx y Xxxxx, special Mexican
counsel for the Company, (iii) Jalife, Caballero, Xxxxxxx & Asociados,
Mexican intellectual property counsel for the Company, (iv) Xxxxxxxx,
Xxx
& Xxxxxx, U.S. intellectual property counsel for the
Company,(v) MacMillan, Xxxxxxxx & Xxxx, LLC, special Ohio counsel for
the Company, (vi) De Obaldia & Xxxxxx xx Xxxxxxx, special Panamanian counsel
for the Company, (vii) /●/, special Swiss counsel for the Company and
(viii) Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for
Vitro Packaging.
We
are
furnishing this opinion to you, as the Initial Purchaser of the Notes,
solely
for your benefit. This opinion may not be relied upon by any other person
(including by any person that acquires the Notes from you) or for any other
purpose. It may not be used, circulated, quoted or otherwise referred to
for any
other purpose.
Very
truly yours,
Schedule
I
1. Compañia
Vidriera, S.A. de C.V.
2. Vidriera
Guadalajara, S.A. de C.V.
3. Vidriera
Los Xxxxx, X.X. de C.V.
4. Vidriera
Monterrey, S.A. de C.V.
5. Vidriera
Querétaro, S.A. de C.V.
6. Vidriera
Toluca, S.A. de C.V.
7.
Procesadora
de Materias Xxxxxx Industrializables, S.A. de C.V.
8. Industria
del Álcali, S.A. de C.V.
9. Fabricacíon
de Máquinas, S.A. de C.V.
10. Vitro
Packaging, Inc.
11. Centro
de
Tecnología Vidriera Ltd.
Exhibit
C-2
/●/,
2004
Vitro
Envases Norteamerica, S.A. de C.V.
$/●/
Aggregate Principal Amount of
/●/%
Senior Secured Guaranteed Notes due 2011
Citigroup
Global Markets Inc.
380
Xxxxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Ladies
and Gentlemen:
We
have
acted as special United States counsel for Vitro Envases Norteamerica, S.A.
de
C.V., a Mexican corporation (sociedad
anónima de capital variable)
(the
"Company"),
in
connection with the purchase by Citigroup Global Markets Inc. (the "Initial
Purchaser")
under
the Purchase Agreement dated as of /●/, 2004 (the "Purchase
Agreement"),
between the Company and the Initial Purchaser, from the Company of $/●/
aggregate principal amount of the Company's /●/% Senior Secured Guaranteed Notes
due 2011 (the "Notes").
In
that
capacity, we participated in conferences with certain officers and
representatives of, and with the accountants and counsel for, the Company
concerning the preparation of the Offering Memorandum dated /●/, 2004 (the
"Offering
Memorandum"),
relating to the Notes.
Although
we have made certain inquiries and investigations in connection with the
preparation of the Offering Memorandum, the limitations inherent in the role
of
outside counsel are such that we cannot and do not assume responsibility
for the
accuracy or completeness of the statements made in the Offering Memorandum,
except insofar as such statements relate to us and except to the extent set
forth in paragraph 10 in our opinion to you dated the date hereof.
Subject
to the foregoing, we hereby advise you that our work in connection with this
matter did not disclose any information that gave us reason to believe
that
the Offering Memorandum (except for the financial statements and other
information of a statistical, accounting or financial nature included therein
as
to which we do not express any view) as of its date or as of the date hereof,
included or includes an untrue statement of a material fact or omitted or
omits
to state a material fact necessary in order to make the statements therein,
in
the light of the circumstances under which they were made, not
misleading.
We
are
furnishing this letter to you, as the Initial Purchaser of the Notes, solely
for
your benefit in order to assist you in establishing appropriate defenses
under
applicable securities law. This letter may not be relied upon by any other
person (including by any person that acquires the Notes from you) or for
any
other purpose. It may not be used, circulated, quoted or otherwise referred
to
for any other purpose.
Very
truly yours,
Exhibit
D
July
/●/,
2004
Vitro
Envases Norteamérica,
S.A. de C.V.
$/●/
Aggregate Principal Amount of
/●/%
Senior Secured Guaranteed Notes due 2011
Ladies
and Gentlemen:
We
have
acted as special Mexican intellectual property counsel for Vitro Envases
Norteamérica, S.A. de C.V., a Mexican corporation (sociedad
anónima de capital variable)
(the
"Company"),
in
connection with the purchase by the initial purchaser (the "Initial
Purchaser")
listed
in Schedule I to the Purchase Agreement dated as of /●/, 2004 (the
"Purchase
Agreement"),
among
the Company and Citigroup Global Markets Inc., as Representative of the Initial
Purchaser, from the Company of $/●/ aggregate principal amount of the Company's
/●/% Senior Secured Guaranteed Notes due 2011 (the "Notes").
In
that
connection, we have examined originals, or copies certified or otherwise
identified to our satisfaction, of such documents, corporate records and
other
instruments as we have deemed necessary or appropriate for the purposes of
this
opinion, including: (a) the Purchase Agreement, (b) the Indenture
dated as
of /●/, 2004 (the "Indenture"),
between
the Company, the Guarantors (as defined therein) and /●/, as trustee (the
“Trustee”),
(c) the form of the Note, (d) the Master Collateral and Intercreditor
Agreement dated as of /●/, 2004 (the “Master
Collateral and Intercreditor Agreement”)
among
the Company, the Grantors (as defined therein), the Collateral and Intercreditor
Agent, the Trustee and such other Secured Parties (as defined therein) as
shall,
from time to time, become party thereto, (e) the [Non-Possessory Mexican
Security Agreement] and (f) the September 29, 1994 Technical Assistance
Agreement between Xxxxx-Xxxxxxxx Glass Container, Inc. and Vidriera Monterrey,
S.A. de C.V. (the “Technical
Assistance Agreement”)
and
related documents.
The
Purchase Agreement, the Indenture, the Notes, the Master Collateral and
Intercreditor Agreement and the [Non-Possessory Mexican Security Agreement]
are
collectively referred to as the "Transaction
Documents".
In
rendering the opinions contained herein, we have assumed: (a) that
each of
the parties to the Transaction Documents is duly organized, validly existing
and, if applicable, in good standing under the laws of the jurisdiction of
its
incorporation or formation, and has all requisite power and authority to
execute, deliver and perform its obligations under the Transaction Documents,
(b) that each of the parties to the Transaction Documents has duly
authorized, executed and delivered the Transaction Documents, (c) that
each
of the parties to the Transaction Documents has the legal power to act in
the
capacity or capacities in which it is to act thereunder, (d) that
each of
the Transaction Documents constitutes a legal, valid and binding obligation
of
each of its respective parties and is enforceable under the laws of each
jurisdiction to which any of the parties thereto may be subject, (e) the
performance of, and compliance with, the covenants contained in the Transaction
Documents, (f) the authenticity of all documents submitted to us as
originals, (g) the conformity to the original documents of all documents
submitted to us as copies and (h) the genuineness of all signatures
on all
documents submitted to
us.
We
have also relied, with respect to certain factual matters, on the
representations and warranties contained in the Transaction Documents and
certificates from the Company.
Based
upon the foregoing, and subject to the assumptions, qualifications and
limitations set forth herein, we are of opinion as follows:
None
of
the issue and sale of the Notes, the execution and delivery of the Transaction
Documents, the consummation of any other of the transactions contemplated
by the
Transaction Documents or the performance of the terms of the Transaction
Documents will conflict with, or result in a breach or violation of (i)
the
Technical Assistance Agreement or any intellectual property rights of
Xxxxx-Xxxxxxxx Glass Containers, Inc. (x) contemplated by the Technical
Assistance Agreement or (y) codified or covered by any statute, law, rule
or
regulation of Mexico relating to the pledged machinery, (ii) any statute,
law,
rule or regulation of Mexico relating to intellectual property rights or
(iii)
to our knowledge, any order or decree of any Mexican court, regulatory
body,
administrative agency, governmental body, arbitrator, instrumentality or
other
authority having jurisdiction over the Company, any of its Subsidiaries
or any
of their respective property.
Regarding
the Technical Assistance Agreement, we are of the opinion that Xxxxx-Xxxxxxxx
Glass Container, Inc. has no rights to claim that any person located in
Mexico
may not transfer (enajenar)
the
machinery which is the subject of the Technical Assistance Agreement to
any
other person also located in Mexico.
We
note
that the Technical Assistance Agreement does
not
specify a governing law. For purposes of this opinion we have assumed that
the
agreement is governed by Mexican law.
We
are
admitted to practice in Mexico and express no opinion as to matters governed
by
any laws other than the laws of Mexico. In particular, we do not purport
to pass
on any matter governed by the laws of the United States of America or any
of its
constituent States.
We
are
furnishing this opinion to you, as the Initial Purchaser of the Notes,
solely
for your benefit. This opinion may not be relied upon by any other person
(including by any person that acquires the Notes from the Initial Purchaser)
or
for any other purpose. It may not be used, circulated, quoted or otherwise
referred to for any other purpose.
Very
truly yours,
Exhibit
E
July
/●/,
2004
Vitro
Envases Norteamérica,
S.A. de C.V.,
$/●/
Aggregate Principal Amount of
/●/%
Senior Secured Guaranteed Notes due 2011
Ladies
and Gentlemen:
We
have
acted as special Ohio law and United States intellectual property law counsel
for Vitro Envases Norteamérica, S.A. de C.V., a Mexican corporation
(sociedad
anónima de capital variable)
(the
"Company"),
in
connection with the purchase by the initial purchaser (the "Initial
Purchaser")
listed
in Schedule I to the Purchase Agreement dated as of /●/, 2004 (the
"Purchase
Agreement"),
among
the Company and Citigroup Global Markets Inc., as the Initial Purchaser,
from
the Company of $/●/ aggregate principal amount of the Company's /●/% Senior
Notes due 2011 (the "Notes").
In
that
connection, we have examined originals, or copies certified or otherwise
identified to our satisfaction, of such documents, corporate records and
other
instruments as we have deemed necessary or appropriate for the purposes
of this
opinion, including: (a) the Purchase Agreement, (b) the Indenture
dated as
of [insert date] (the “Indenture”),
between the Company, the Guarantors (as defined therein) and [insert] as
trustee
(the “Trustee”),
(c)
the form of the Note, (d) the Master Collateral and Intercreditor Agreement
dated as of /●/, 2004 (the “Master
Collateral and Intercreditor Agreement”)
among
the Company, the Grantors (as defined therein) /●/ as Collateral and
Intercreditor Agent, the Trustee and such other Secured Parties (as defined
therein) as shall, from time to time, become party thereto, (e) the
[Non-Possessory Mexican Security Agreement] and (f)(c) the September 29,
1994
Technical Assistance Agreement between Xxxxx-Xxxxxxxx Glass Container,
Inc. and
Vidriera Monterrey, S.A. de C.V. (the “Technical
Assistance Agreement”) and
related documents. The Purchase Agreement, the Indenture, the Notes, the
Master
Collateral and Intercreditor Agreement and the [Non-Possessory Mexican
Security
Agreement] are collectively referred to as the "Transaction
Documents".
In
rendering the opinions contained herein, we have assumed: (a) that
each of
the parties to the Transaction Documents is duly organized, validly existing
and, if applicable, in good standing under the laws of the jurisdiction
of its
incorporation or formation, and has all requisite power and authority to
execute, deliver and perform its obligations under the Transaction Documents,
(b) that each of the parties to the Transaction Documents has duly
authorized the Transaction Documents to which it is a party, (c) that
each
of the parties to the Transaction Documents has duly executed and delivered
the
Transaction Documents to which it is a party under the laws of each jurisdiction
to which any of the parties thereto may be subject, (d) that each
of the
parties to the Transaction Documents has the legal power to act in the
capacity
or capacities in which it is to act thereunder, (e) that each of
the
Transaction Documents constitutes a legal, valid and binding obligation
of each
of its respective parties and is enforceable under the laws of each jurisdiction
to which any of the parties thereto may be subject, (f) the performance
of, and
compliance with, the covenants contained in the Transaction Documents by
each of
the parties thereto, (g) the authenticity of all documents submitted to
us as
originals, (h) the conformity to the original documents of all documents
submitted to us as copies
and
(i) the genuineness of all signatures on all documents submitted
to us. We
have also relied, with respect to certain factual matters, on the
representations and warranties contained in the Transaction Documents
and
certificates of the Company and its Subsidiaries.
Based
on
the foregoing, and subject to the assumptions, qualifications and limitations
set forth herein, we are of the following opinion:
We
have
reviewed the Transaction Documents for the sole purpose of determining
if the
pledge as security of machinery acquired under the Technical Assistance
Agreement or the subsequent foreclosure of any such pledged machinery
would
violate said Agreement or any intellectual property rights of Xxxxx-Xxxxxxxx
Glass Container, Inc. In this regard, none of the execution and delivery
of the
Transaction Documents, the consummation of any other of the transactions
contemplated by the Transaction Documents or the performance of the terms
of the
Transaction Documents will conflict with or result in a breach or violation
of
the Technical
Assistance Agreement,
or any
intellectual property law or rights of Xxxxx-Xxxxxxxx Glass Container,
Inc.
codified in or covered by any statute, law, rule or regulation of the
State of
Ohio relating to the pledged machinery.
We
note
that the Technical Assistance Agreement does
not
specify a governing law. It is our opinion that the Technical Assistance
Agreement and any follow-on license contemplated by same would be interpreted
under Mexican law. For purposes of this opinion, however, we have assumed
the
Technical Assistance Agreement and any follow-on licenses contemplated
therein
are governed by the law of the State of Ohio. Making such assumption,
we
conclude that the Technical Assistance Agreement has expired and no longer
governs the relationship between the parties thereto. Any follow-on license
entered into between Xxxxx-Xxxxxxxx Glass Container, Inc. and Vidriera
Monterrey, S.A. de C.V., pursuant to the provisions of the Technical
Assistance
Agreement would not be breached or violated by virtue of the pledge of
the
machinery contemplated in the Transaction Documents. In our opinion,
any
additional post-expiration intellectual property rights relating to the
Technical Assistance Agreement and the pledged machinery would necessarily
be
governed exclusively by the laws of Mexico because such intellectual
property
rights would involve Mexican patents.
We
are
admitted to practice before the United States Patent and Trademark Office
and in
the State of Ohio, and we express no opinion as to matters governed by
any laws
other than the federal laws of the United States of America and the laws
of the
State of Ohio. In particular, we do not purport to pass on any matter
governed
by the laws of Mexico or the laws of the State of New York. Our field
of
specialty is intellectual property and licensing, and we do not offer
any
opinion falling outside this field.
We
are
furnishing this opinion to you, as the Initial Purchaser of the Notes,
solely
for your benefit. This opinion may not be relied upon by any other person
(including by any person that acquires the Notes from the Initial Purchaser)
or
for any other purpose. It may not be used, circulated, quoted or otherwise
referred to for any other purpose.
Exhibit
F
July
/●/,
2004
Vitro
Envases Norteamérica,
S.A. de C.V.
$/●/
Aggregate Principal Amount of
/●/%
Senior Secured Guaranteed Notes due 2011
Ladies
and Gentlemen:
We
have
acted as special United States federal patent counsel for Vitro Envases
Norteamérica, S.A. de C.V., a Mexican corporation (sociedad
anónima de capital variable)
(the
"Company"),
in
connection with the purchase by the initial purchaser (the "Initial
Purchaser")
listed
in Schedule I to the Purchase Agreement dated as of /●/, 2004 (the
"Purchase
Agreement"),
among
the Company and Citigroup Global Markets Inc., as the Initial Purchaser,
from
the Company of $/●/ aggregate principal amount of the Company's /●/% Senior
Secured Guaranteed Notes due 2011 (the "Notes").
In
that
connection, We have examined originals, or copies certified or otherwise
identified to our satisfaction, of such documents, corporate records
and other
instruments as we have deemed necessary or appropriate for the purposes
of this
opinion, including: (a) the Purchase Agreement, (b) the Indenture dated
as of
[insert date] (the “Indenture”),
between the Company, the Guarantors (as defined therein) and [insert]
as trustee
(the “Trustee”),
(c)
the form of the Note, (d) the Master Collateral and Intercreditor
Agreement
dated as of /●/, 2004 (the “Master
Collateral and Intercreditor Agreement”)
among
the Company, the Grantors (as defined therein), /●/ as Collateral and
Intercreditor Agent, the Trustee and such other Secured Parties (as defined
therein) as shall, from time to time, become party thereto, (e) the
[Non-Possessory Mexican Security Agreement] and (f) the September 29,
1994
Technical Assistance Agreement between Xxxxx-Xxxxxxxx Glass Container,
Inc. and
Vidriera Monterrey, S.A. de C.V. (the “Technical
Assistance Agreement”)
and
related documents.
The
Purchase Agreement, the Indenture, the Notes, the Master Collateral and
Intercreditor Agreement and the [Non-Possessory Mexican Security Agreement]
are
collectively referred to as the "Transaction
Documents".
In
rendering the opinions contained herein, We have assumed: (a) that
each of
the parties to the Transaction Documents is duly organized, validly existing
and, if applicable, in good standing under the laws of the jurisdiction
of its
incorporation or formation, and has all requisite power and authority
to
execute, deliver and perform its obligations under the Transaction Documents,
(b) that each of the parties to the Transaction Documents has
duly
authorized the Transaction Documents to which it is a party, (c) that
each
of the parties to the Transaction Documents has duly executed and delivered
the
Transaction Documents to which it is a party under the laws of each jurisdiction
to which any of the parties thereto may be subject, (d) that each
of the
parties to the Transaction Documents has the legal power to act in the
capacity
or capacities in which it is to act thereunder, (e) that each
of the
Transaction Documents constitutes a legal, valid and binding obligation
of each
of its respective parties and is enforceable under the laws of each jurisdiction
to which any of the parties thereto may be subject, (f) the performance
of, and
compliance with, the covenants contained in the Transaction Documents
by each of
the parties thereto, (g) the authenticity of all documents submitted
to us as
originals, (h) the conformity to the original documents of all
documents
submitted to us as copies and (i) the genuineness of all signatures
on all
documents submitted to us. We have also relied,
with
respect to certain factual matters, on the representations and warranties
contained in the Transaction Documents and certificates of the Company and
its
Subsidiaries.
Based
on
the foregoing, and subject to the assumptions, qualifications and limitations
set forth herein, we are of opinion as follows:
We
have
reviewed the Transaction Documents for the sole purpose of determining if
the
pledge as security of machinery acquired under the Technical Assistance
Agreement or the subsequent foreclosure of any such pledged machinery would
violate said Agreement or any intellectual property rights of Xxxxx-Xxxxxxxx
Glass Container, Inc. In this regard, none of the execution and delivery
of the
Transaction Documents, the consummation of any other of the transactions
contemplated by the Transaction Documents or the performance of the terms
of the
Transaction Documents will conflict with or result in a breach or violation
of
the Technical Assistance Agreement, or
any
intellectual property law or rights of Xxxxx-Xxxxxxxx Glass Container, Inc.
codified in or covered by any federal statute, law, rule or regulation of
the
United States of America (the "United States") relating to the pledged
machinery. We note, however, that the importation into or sale in the United
States of items pledged as security under the Transaction Documents could
infringe United States patents. We have not undertaken the task of determining
if there are any valid United States patents that would be infringed in such
instance, and, therefore, offer no opinion in this regard.
We
note
that the Technical Assistance Agreement does not specify a governing law.
It is
our opinion that the Technical Assistance Agreement and any follow-on license
contemplated by same would be interpreted under Mexican law. For purposes
of
this opinion, however, we have assumed that the Technical Assistance Agreement
and any follow-on licenses contemplated therein are governed by the federal
law
of the United States. Making such assumption, we conclude that the Technical
Assistance Agreement has expired and no longer governs the relationship between
the parties thereto. Any follow-on license entered into between Xxxxx-Xxxxxxxx
Glass Container, Inc. and Vidriera Monterrey, S.A. de C.V., pursuant to the
provisions of the Technical Assistance Agreement would not be breached or
violated by virtue of the pledge of the machinery contemplated in the
Transaction Documents. In our opinion, any additional post-expiration
intellectual property rights relating to the Technical Assistance Agreement
and
the pledged machinery would necessarily be governed exclusively by the laws
of
Mexico, because such intellectual property rights would involve Mexican
patents.
The
undersigned is admitted to practice before the United States Patent and
Trademark Office and in the State of Texas, and we express no opinion as
to
matters governed by any laws other than the federal laws of the United States
of
America and the laws of the State of Texas. In particular, we do not purport
to
pass on any matter governed by the laws of Mexico or by the laws of the State
of
New York. Our field of specialty is intellectual property and licensing,
and we
do not offer any opinion falling outside this field.
We
are
furnishing this opinion to you, as the Initial Purchaser of the Notes, solely
for your benefit. This opinion may not be relied upon by any other person
(including by any person that acquires the Notes from the Initial Purchaser)
or
for any other purpose. It may not be used, circulated, quoted or otherwise
referred to for any other purpose.
Very
truly yours,
Exhibit
G
July
/●/,
2004
Vitro
Envases Norteamérica,
S.A. de C.V.,
$/●/
Aggregate Principal Amount of
/●/%
Senior Secured Guaranteed Notes due 2011
Citigroup
Global Capital Markets Inc.
As
Representatives of the Initial Purchasers
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Ladies
and Gentlemen:
We
have
acted as special Panamanian counsel for Vitro Envases Norteamérica, S.A. de
C.V., a Mexican corporation (sociedad
anónima de capital variable)
(the
"Company"),
in
connection with the purchase by Citigroup Global Capital Markets Inc. (the
"Initial
Purchaser")
pursuant to the Purchase Agreement dated as of /●/, 2004 (the "Purchase
Agreement"),
between the Company and the Initial Purchaser, from the Company of $/●/
aggregate principal amount of the Company's /●/% Senior Secured Guaranteed Notes
due 2011 (the "Notes").
This
opinion is being delivered to you pursuant to Section 6(g) of the Purchase
Agreement.
In
that
connection, we have examined originals, or copies certified or otherwise
identified to our satisfaction, of such documents, corporate records and
other
instruments as we have deemed necessary or appropriate for the purposes of
this
opinion, including: (a) the Offering Memorandum dated July /●/ 2004 (the
"Offering
Memorandum")
relating to the Notes, (b) the Purchase Agreement, (c) the Indenture
dated
as of /●/, 2004 (the "Indenture"),
between the Company, the Bank of New York, as trustee (the "Trustee"),
(d) the form of the Notes, (e) the Master Collateral and Intercreditor
Agreement dated as of /●/, 2004 (the “Master
Collateral and Intercreditor Agreement”)
among
the Company, the Grantors (as defined therein), HSBC Bank USA as collateral
and
intercreditor agent (the “Collateral
and Intercreditor Agent”),
the
Trustee and such other Secured Parties (as defined therein) as shall, from
time
to time, become party thereto (f) the Share Purchase Agreement, dated as
of May
31, 2004 (the “Comegua
Share Purchase Agreement”)
among
Vitrosa A.G. (formerly Vitrosa Holding LTD.), a Swiss [corporation] (the
“Seller”)
and
Centro de Tecnología Vidriera LTD., a Swiss [corporation] (the “Purchaser”),
providing for the sale of 2,376 class “AA” shares (the “Comegua
Shares”)
of
Empresas Comegua, S.A (“Comegua”)
by the
Seller to the Purchaser, (g) the letters of London Overseas Inc. and Golden
Beer
Corporation dated May 3, 2004 and May 17, 2004, respectively, each in respect
of
the transfer of the Comegua Shares by the Seller to the Purchaser and the
pledge
of the Comegua Shares to the creditors of the Company (collectively, the
“Consent
Letters”),
(h)
the stock certificates representing the Comegua Shares, (i) the pacto
social y reformas
of
Comegua, (j) the shareholder agreement of Comegua (the “Comegua
Shareholder Agreement”)
and
(k) the form of Stock Pledge Agreement attached as an exhibit to the Master
Collateral Agreement (the “Comegua
Stock Pledge Agreement”).
The
Purchase Agreement, the Indenture, the Notes, the Master Collateral Agreement,
the Comegua Share Purchase Agreement and the Comegua Stock Pledge Agreement
are
collectively referred to as the "Transaction
Documents".
In
rendering the opinions contained herein, we have assumed: (a) that
each of
the parties to the Transaction Documents is duly organized, validly existing
and, if applicable, in good standing under the laws of the jurisdiction of
its
incorporation or formation, and has all requisite power and authority to
execute, deliver and perform its obligations under the Transaction Documents,
(b) that each of the parties to the Transaction Documents has duly
authorized the Transaction Documents to which it is a party, (c) that
each
of the parties to the Transaction Documents has duly executed and delivered
the
Transaction Documents to which it is a party under the laws of each jurisdiction
to which any of the parties thereto may be subject (other than Panama),
(d) that each of the parties to the Transaction Documents has the
legal
power to act in the capacity or capacities in which it is to act thereunder,
(e) that each of the Transaction Documents constitutes a legal, valid
and
binding obligation of each of its respective parties and is enforceable under
the laws of each jurisdiction to which any of the parties thereto may be
subject
(other than Panama), (f) that the Comegua Stock Pledge Agreement will be
executed and delivered substantially in the form attached as an exhibit to
the
Master Collateral Agreement, (g) the performance of, and compliance with,
the
covenants contained in the Transaction Documents by each of the parties thereto,
(h) the authenticity of all documents submitted to us as originals, (i) the
conformity to the original documents of all documents submitted to us as
copies
and (j) the genuineness of all signatures on all documents submitted
to us.
We have also relied, with respect to certain factual matters, on the
representations and warranties contained in the Transaction Documents and
certificates of the Company and its subsidiaries.
Based
on
the foregoing, and subject to the assumptions, qualifications and limitations
set forth herein, we are of opinion as follows:
1. Comegua
is duly incorporated, validly existing and in good standing under the laws
of
Panama, and has full corporate power and authority to own, lease and operate
its
properties and conduct its businesses as described in the Offering
Memorandum.
2. The
Purchaser is the record owner of the Comegua Shares, which represent 49.7%
of
the capital stock of Comegua.
3. It
will
not be necessary or advisable under the law of Panama that any document be
filed, registered or recorded in any public office or elsewhere in Panama
in
order to ensure the validity, effectiveness, enforceability or admissibility
into evidence of the Comegua Stock Pledge Agreement when executed and the
Master
Collateral Agreement.
4. No
further steps beyond those required by the terms of the Comegua Stock Pledge
Agreement will be required to be taken to ensure the validity, effectiveness,
perfection and priority of the security interest granted pursuant to the
Comegua
Stock Pledge Agreement under the law of Panama.
5. The
Comegua Shares have been duly and validly authorized and issued and are fully
paid and nonassessable.
6. None
of
the execution and delivery of the Transaction Documents, the sale of the
Comegua
Shares by the Seller to the Purchaser, the pledge of the Comegua Shares pursuant
to the Master Collateral Agreement and the Comegua Stock Pledge Agreement,
the
consummation of any other of the transactions contemplated by the Transaction
Documents or the performance of the terms of the Transaction Documents will
conflict with, result in a breach or violation of, or the imposition of any
lien, charge or encumbrance upon any property or asset of Comegua pursuant
to,
or constitute a default under, (i) the pacto
social
or
comparable constituting documents of Comegua, (ii) the terms of any indenture
or
other agreement, obligation, condition, covenant or instrument to which Comegua
is a party or bound or to which its property is subject or (iii) any statute,
law, rule or regulation of Panama, or to my knowledge, any order or decree
of
any Panamanian court, regulatory body, administrative agency, governmental
body,
arbitrator, instrumentality or other authority having jurisdiction over Comegua
or any of its respective property.
7. No
authorization, approval or other action by, and no notice to, consent of,
order
of, or filing with, any Panamanian court or governmental authority or regulatory
body is required for the execution, delivery and performance of the Transaction
Documents or the consummation of the transactions contemplated
therein.
8. No
tax,
deduction or withholding will be imposed by any national, regional or local
government of Panama or any subdivision or agent thereof or therein on or
by
virtue of the execution or delivery of any of the Transaction Documents or
the
delivery of the Comegua Shares to the Collateral and Intercreditor Agent
under
(and as defined in) the Comegua Stock Pledge Agreement when executed, or
the
delivery of the Comegua Shares or any exercise of rights under the Comegua
Stock
Pledge Agreement when executed.
9. The
choice of New York law as the governing law of the Master Collateral Agreement
is a valid choice of law and will be recognized and given effect to by the
courts of Panama.
10. A
final
and conclusive judgment obtained in the state or federal courts in New York,
New
York and any appellate court or body thereto against the Purchaser, arising
out
of or in relation to the Transaction Documents, would be enforceable against
the
Purchaser in Panama with respect to the Comegua Shares.
We
are
admitted to practice in the Republic of Panama, and we express no opinion
as to
matters governed by any laws other than the laws of Panama. In particular,
we do
not purport to pass on any matter governed by the laws of Mexico or of the
State
of New York.
We
are
furnishing this opinion to you, as Initial Purchaser of the Notes, solely
for
your benefit. This opinion may not be relied upon by any other person (including
by any person that acquires the Notes from the Initial Purchaser) or for
any
other purpose. It may not be used, circulated, quoted or otherwise referred
to
for any other purpose.
Respectfully
submitted,
DE
OBALDIA & XXXXXX XX XXXXXXX
Exhibit
H-1
July
__,
2004
Citigroup
Capital Markets, Inc.
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
|
Re:
|
Vitro
Packaging, Inc.
|
|
VENA
ACQUISITION CORP.
|
Ladies
and Gentlemen:
We
have
acted as special Delaware counsel for Vitro Packaging, Inc. (formerly known
as
FOMEXPORT USA, INC.), a Delaware corporation ("Vitro Packaging"), and VENA
ACQUISITION CORP., a Delaware corporation ("VENA" and, together with Vitro
Packaging, the "Companies") in connection with the matters set forth herein.
At
your request, this opinion is being furnished to you.
For
purposes of giving the opinions hereinafter set forth, our examination
of
documents has been limited to the examination of originals or copies of
the
following:
| i. |
The
Certificate of Incorporation of Vitro Packaging, dated December
14, 1979,
as filed in the office of the Secretary of State of the State
of Delaware
(the "Secretary of State") on December 17, 1979, as amended by
the
Certificate of Amendment of Certificate of Incorporation, dated
June 11,
1986, as filed with the Secretary of State on July 1, 1986, and
as further
amended by the Certificate of Amendment of Certificate of Incorporation,
dated August 29, 1986, as filed with the Secretary of State on
October 24,
1986 (as so amended, the "Vitro Packaging
Certificate");
|
| ii. |
The
bylaws of Vitro Packaging, as amended through the date hereof (the
"Vitro
Packaging Bylaws");
|
| iii. |
The
Certificate of Incorporation of VENA, dated April 7, 2004 (the
"VENA
Certificate"), as filed with the Secretary of State on April 13,
2004;
|
| iv. |
The
bylaws of VENA, as amended through the dated hereof (the "VENA
Bylaws");
|
| v. |
The
Agreement and Plan of Merger, dated as of May 17, 2004 (the "Merger
Agreement"), between VENA and Vitro
Packaging;
|
| vi. |
A
certificate of an officer of Vitro Packaging, dated ________ __,
2004
hereof, as to certain matters (attaching resolutions of the Board
of
Directors of Vitro Packaging and the sole stockholder of Vitro
Packaging
and a certificate of the Secretary of Vitro Packaging relating
to the
authorization and adoption of the Merger Agreement);
|
| vii. |
A
certificate of an officer of VENA, dated as of the date hereof,
as to
certain matters (attaching resolutions of the Board of Directors
of VENA
and the sole stockholder of VENA and a certificate of the Secretary
of
VENA relating to the authorization and adoption of the Merger
Agreement);
|
| viii. |
The
Certificate of Merger of Vitro Packaging with and into VENA, dated
as of
May 17, 2004 (the "Certificate of Merger"), filed with the Secretary
of
State on ________ __, 2004; and
|
| ix. |
A
Good Standing Certificate for each of Vitro Packaging and VENA,
dated July
__, 2004 and July __, 2004, respectively, obtained from the Secretary
of
State.
|
The
Vitro
Packaging Certificate and the VENA Certificate are hereinafter referred to
jointly as the "Certificates." The Vitro Packaging Bylaws and the VENA Bylaws
are hereinafter referred to jointly as the "Bylaws." Initially capitalized
terms
used herein and not otherwise defined are used as defined in the Merger
Agreement.
For
purposes of this opinion, we have not reviewed any documents other than the
documents listed in paragraphs (i) through (ix) above. In particular, we
have
not reviewed any document (other than the documents listed in paragraphs
(i)
through (ix) above) that is referred to in or incorporated by reference into
any
document reviewed by us. We have assumed that there exists no provision in
any
document that we have not reviewed that is inconsistent with the opinions
stated
herein. We have conducted no independent factual investigation of our own
but
rather have relied solely upon the foregoing documents, the statements and
information set forth therein and the additional matters recited or assumed
herein, all of which we have assumed to be true, complete and accurate in
all
material respects. With respect to all documents examined by us, we have
assumed
that (i) all signatures on documents examined by us are genuine, (ii) all
documents submitted to us as orig-inals are authentic, and (iii) all documents
submitted to us as copies conform to the original copies of those
docu-ments.
For
purposes of this opinion, we have assumed (i) that prior to the effectiveness
of
the Merger, the Vitro Packaging Certificate was not amended and that no such
amendment was pending or proposed (ii) that the VENA Certificate has not
been
amended and that no such amendment is pending or has been proposed, (ii)
that
except for the Merger, there are no proceedings pending or contemplated for
(A)
the merger, consolidation, conversion, dissolution, liquidation or termination
of VENA, or (B) the transfer to or domestication in any other jurisdiction
of
VENA, (iii) except to the extent set forth in paragraphs 1 and 2 below, the
due
organization, due formation or due creation, as the case may be, and valid
existence in good standing of each party to the documents examined by us
under
the laws of the jurisdiction governing its organization, formation or creation,
(iv) the legal capacity of natural persons who are signatories to the documents
examined by us, (v) except to the extent set forth in paragraphs 3 and 7
below,
that each of the parties to the docu-ments examined by us has the power and
authority to execute and deliver, and to perform its obligations under, such
documents, (vi) except to the extent set forth in paragraphs 4 and 8 below,
the
due authorization, execution and delivery by all parties thereto of all
documents examined by us, (vii) that Section 203 of the General Corporation
Law
of the State of Delaware (the "General Corporation Law") is not applicable
to
either of the Companies pursuant to subsection (b)(4) thereof, (viii) that
the
due authorization, execution and delivery of the Merger Agreement by each
of the
parties thereto did not, and the consummation of the transactions contemplated
thereby will not, violate or conflict with any provision of any judgment,
order,
writ, injunction or decree of any court or governmental authority, or violate
or
result in a breach of or constitute a default or require any consent (other
than
such consents as have been duly obtained) under, any provision of any other
agreement, contract, instrument or obligation to which any such party is
a party
or by which any such party or any of such party's properties is bound, (ix)
that
the Merger Agreement has not been terminated in accordance with the terms
thereof, and (x) that the Certificate of Merger has been duly executed and
duly
filed with the Secretary of State by VENA in accordance with the General
Corporation Law along with the payment of all applicable taxes, fees and
other
charges in connection therewith. We have not participated in the preparation
of
any offering material relating to either of the Companies and assume no
responsibility for the contents of any such material.
This
opinion is limited to the laws of the State of Delaware (excluding the
securities and blue sky laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other state or
jurisdiction, including federal laws (including federal securities and
bankruptcy laws) and rules and regulations relating thereto, or the rules
or
regulations of the stock exchanges or any other regulatory body. Our opinions
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder that are currently in effect.
Based
upon the foregoing, and upon our examination of such questions of law and
statutes of the State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications, limitations
and
exceptions set forth herein, we are of the opinion that:
| 1. |
Immediately
prior to the effectiveness of the Merger, Vitro Packaging was duly
incorporated, validly existing and in good standing as a corporation
under
the General Corporation Law.
|
| 2. |
VENA
is duly incorporated, validly existing and in good standing as
a
corporation under the General Corporation
Law.
|
| 3. |
Immediately
prior to the effectiveness of the Merger, Vitro Packaging had all
necessary power and authority under the Vitro Packaging Certificate,
the
Vitro Packaging Bylaws and the General Corporation Law to execute
and
deliver, and to perform its obligations under, the Merger
Agreement.
|
| 4. |
Immediately
prior to the effectiveness of the Merger, the execution and delivery
of
the Merger Agreement by Vitro Packaging, and the performance by
Vitro
Packaging of its obligations thereunder, was duly authorized by
all
necessary corporate action on the part of Vitro Packaging under
the Vitro
Packaging Certificate, the Vitro Packaging Bylaws and the General
Corporation Law.
|
| 5. |
Immediately
prior to the effectiveness of the Merger, the execution and delivery
by
Vitro Packaging of the Merger Agreement, and the performance by
Vitro
Packaging of its obligations thereunder, (i) did not violate the
Vitro
Packaging Certificate, the Vitro Packaging Bylaws or the General
Corporation Law and (ii) subject to the qualifications set forth
in
paragraph D below, did not violate any pending judgment, order
or decree
binding on Vitro Packaging.
|
| 6. |
Subject
to the qualifications set forth in paragraph D below, immediately
prior to
the effectiveness of the Merger, there was no action, suit or proceeding
to which Vitro Packaging was a party pending before any court located
in
the State of Delaware having jurisdiction over Vitro
Packaging.
|
| 7. |
VENA
has all necessary power and authority under the VENA Certificate,
the VENA
Bylaws and the General Corporation Law to execute and deliver,
and to
perform its obligations under, the Merger
Agreement.
|
| 8. |
The
execution and delivery of the Merger Agreement by VENA, and the
performance by VENA of its obligations thereunder, have been duly
authorized by all necessary corporate action on the part of VENA
under the
VENA Certificate, the VENA Bylaws and the General Corporation
Law.
|
| 9. |
The
execution and delivery by VENA of the Merger Agreement, and the
performance by VENA of its obligations thereunder, (i) do not violate
the
VENA Certificate, the VENA Bylaws or the General Corporation Law
and (ii)
subject to the qualifications set forth in paragraph D below, do
not
violate any pending judgment, order or decree binding on
VENA.
|
| 10. |
Immediately
prior to the effectiveness of the Merger, the Merger Agreement
constituted
a legal, valid, binding and enforceable obligation of Vitro Packaging
and
was enforceable against Vitro Packaging in accordance with its
terms.
|
| 11. |
The
Merger Agreement constitutes a legal, valid, binding and enforceable
obligation of VENA and is enforceable against VENA in accordance
with its
terms.
|
| 12. |
The
Merger has become effective under the General Corporation
Law.
|
| 13. |
Subject
to the qualifications set forth in paragraph D below, there is
no action,
suit or proceeding to which VENA is a party pending before any
court
located in the State of Delaware having jurisdiction over
VENA.
|
| 14. |
(A)
No authorization, consent, approval or order of any Delaware court
or any
Delaware governmental or administrative body is required to be
obtained by
Vitro solely as a result of the execution and delivery by Vitro
Packaging
of the Merger Agreement, and the performance by Vitro Packaging
of its
obligations thereunder, (B) no notice to, or filing with, any Delaware
court or any Delaware governmental or administrative body is required
to
be made by Vitro Packaging solely as a result of the execution
and
delivery by Vitro Packaging of the Merger Agreement, and the performance
by Vitro Packaging of its obligations thereunder, and (C) no other
action
is required to be taken by Vitro Packaging solely as a result of
the
execution and delivery by Vitro Packaging of the Merger Agreement,
and the
performance by Vitro Packaging of its obligations thereunder, except
for
the due filing of the Certificate of Merger with the Secretary
of State
and the payment of all applicable taxes, fees and other charges
in
connection therewith.
|
| 15. |
(A)
No authorization, consent, approval or order of any Delaware court
or any
Delaware governmental or administrative body is required to be
obtained by
VENA solely as a result of the execution and delivery by VENA of
the
Merger Agreement, and the performance by Vitro Packaging of its
obligations thereunder, (B) no notice to, or filing with, any Delaware
court or any Delaware governmental or administrative body is required
to
be made by VENA solely as a result of the execution and delivery
by VENA
of the Merger Agreement, and the performance by VENA of its obligations
thereunder, and (C) no other action is required to be taken by
VENA solely
as a result of the execution and delivery by VENA of the Merger
Agreement,
and the performance by VENA of its obligations thereunder, except
for the
due filing of the Certificate of Merger with the Secretary of State
and
the payment of all applicable taxes, fees and other charges in
connection
therewith.
|
The
opinions expressed above are subject to the following additional assumptions,
qualifications, limitations and exceptions:
| A. |
We
express no opinion (i) with respect to the enforceability of any
provision
of the Merger Agreement which purports to obligate the parties
thereto to
cause other persons or entities to act in a certain way insofar
as such
provision relates to the actions of such other persons or entities,
(ii)
with respect to the enforceability of the provisions of the Merger
Agreement to the extent that such provisions purport to bind parties
not
signatory thereto or who have otherwise not agreed or consented
to be
bound thereby, and (iii) with respect to Section 4.2 of the Merger
Agreement, the last sentence of Article III of the Merger Agreement
(to
the extent that such provision is inconsistent with Section 259
of the
General Corporation Law), Article IX of the Merger Agreement and
Section
10.2 of the Merger Agreement (to the extent that such provision
provides
that the invalidity, illegality or unenforceability of any provision
of
the Merger Agreement shall not affect any provision of the Merger
Agreement).
|
| B. |
The
opinions expressed above are subject to the effect of (i) bankruptcy,
insolvency, moratorium, receivership, reorganization, liquidation,
fraudulent conveyance and transfer and other similar laws relating
to or
affecting the rights and remedies of creditors generally, (ii)
principles
of equity (regardless of whether considered and applied in a proceeding
in
equity or at law), (iii) the effect of applicable public policy
with
respect to provisions relating to indemnification, exculpation
or
contribution, (iv) the discretion of the court before which any
proceeding
in respect of the Merger Agreement or the transactions contemplated
thereby may be brought, and (v) applicable law relating to fiduciary
duties.
|
| C. |
Our
opinions as expressed herein do not encompass any agreement, schedule,
exhibit or document attached or referred to in or incorporated
by
reference in the Merger Agreement other than the Certificates,
the Bylaws
and the Certificate of Merger.
|
| D. |
Our
opinions as expressed in paragraphs 5, 6, 9 and 13 above are based
solely
upon our search of the records of the Superior Court in and for
New Castle
County, Delaware, the Chancery Court in and for New Castle County,
Delaware, the United States Bankruptcy Court for the District of
Delaware,
and the United States District Court for the District of Delaware,
and
accordingly are limited solely to judgments, orders and decrees
entered
by, and actions, suits and proceedings pending in, said
courts.
|
The
foregoing opinions are rendered solely for your benefit in connection with
the
matters addressed herein. The foregoing opinions may also be relied on by
your
successors and assigns, subject to the understanding that the opinions rendered
herein are given on the date hereof and such opinions are rendered only with
respect to facts existing on the date hereof and laws, rules and regulations
currently in effect. Except as stated above, without our prior written consent,
this opinion may not be relied upon by you for any other purpose or be furnished
or quoted to, or be relied upon by, any other person or entity for any purpose.
Very
truly yours,
Exhibit
H-2
July
__,
2004
Citigroup
Capital Markets, Inc.
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
|
Re:
|
Vitro
Packaging, Inc.
|
Ladies
and Gentlemen:
We
have
acted as special Delaware counsel for Vitro Packaging, Inc. (formerly known
as
VENA ACQUISITION CORP.), a Delaware corporation (the "Company"), in connection
with the matters set forth herein. At your request, this opinion is being
furnished to you.
For
purposes of giving the opinions hereinafter set forth, our examination of
documents has been limited to the examination of originals or copies of the
following:
| i. |
The
Certificate of Incorporation of the Company, dated April 7, 2004,
as filed
in the office of the Secretary of State of the State of Delaware
(the
"Secretary of State") on April 13, 2004, as amended by the Certificate
of
Merger of Vitro Packaging, Inc. with and into VENA ACQUISITION
CORP.,
dated as of May 17, 2004, as filed with the Secretary of State
on July __,
2004 (as so amended, the "Certificate of
Incorporation");
|
| ii. |
The
bylaws of the Company, as amended through the date hereof (the
"Bylaws");
|
| iii. |
The
Collateral Agreement, dated as of June __, 2004 (the "Collateral
Agreement"), between the Company and ______________, as collateral
agent
(the "Collateral Agent") for the Secured Parties (as defined
therein);
|
| iv. |
The
Master Collateral and Intercreditor Agreement, dated as of June
__, 2004
(the "Intercreditor Agreement"), among ___________, as master collateral
and intercreditor agent, ____________, as indenture trustee for
the
Noteholders (as defined therein), Vitro Envases Norteamérica, S.A. de C.V.
(the "Parent"), the Company and the other subsidiaries of the Parent
listed on Schedule I attached thereto, and the other entities from
time to
time party thereto;
|
| v. |
The
Indenture, dated as of June __, 2004 (the "Indenture"), among the
Parent,
as issuer, the Company and the other parties listed on the signature
pages
thereto, as guarantors, and The Bank of New York, as
trustee;
|
| vi. |
The
Deposit Account Control Agreement, dated as of June __, 2004 (the
"Account
Control Agreement"), among the Company, the Collateral Agent and
_________;
|
| vii. |
A
certificate of an officer of the Company, dated as of the date
hereof, as
to certain matters (attaching resolutions of the Board of Directors
of the
Company);
|
| viii. |
A
financing statement on form UCC-1, naming the Company as debtor
and the
Collateral Agent as secured party, in the form attached hereto
and marked
as Exhibit "A" (the "Financing Statement"), to be filed with the
Secretary
of State (Uniform Commercial Code Section) (the "Division");
|
| ix. |
The
Offering Memorandum, dated July __, 2004 (the "Offering Memorandum"),
describing the offering of the Parent's __% Senior Secured Guaranteed
Notes due 2011; and
|
| x. |
A
Good Standing Certificate for the Company, dated July __, 2004,
obtained
from the Secretary of
State.
|
Initially
capitalized terms used herein and not otherwise defined are used as defined
in
the Collateral Agreement. The Collateral Agreement, the Intercreditor Agreement,
the Indenture and the Account Control Agreement are hereinafter referred
to
collectively as the "Transaction Documents."
For
purposes of this opinion, we have not reviewed any documents other than the
documents listed in paragraphs (i) through (x) above. In particular, we have
not
reviewed any document (other than the documents listed in paragraphs (i)
through
(x) above) that is referred to in or incorporated by reference into any document
reviewed by us. We have assumed that there exists no provision in any document
that we have not reviewed that is inconsistent with the opinions stated herein.
We have conducted no independent factual investigation of our own but rather
have relied solely upon the foregoing documents, the statements and information
set forth therein and the additional matters recited or assumed herein, all
of
which we have assumed to be true, complete and accurate in all material
respects. With respect to all documents examined by us, we have assumed that
(i)
all signatures on documents examined by us are genuine, (ii) all documents
submitted to us as orig-inals are authentic, and (iii) all documents submitted
to us as copies conform to the original copies of those docu-ments.
For
purposes of this opinion, we have assumed (i) that the Certificate of
Incorporation has not been amended and that no such amendment is pending
or has
been proposed, (ii) that the Company is organized solely under the laws of
the
State of Delaware, (iii) that there are no proceedings pending or contemplated
for (A) the merger, consolidation, conversion, dissolution, liquidation or
termination of the Company, or (B) the Company's transfer to or domestication
in
any other jurisdiction, (iv) that the Company has not changed its name, whether
by amendment of its organizational documents, by reorganization or otherwise,
within the last four months, (v) except to the extent set forth in paragraph
1
below, the due organization, due formation or due creation, as the case may
be,
and valid existence in good standing of each party to the documents examined
by
us under the laws of the jurisdiction governing its organization, formation
or
creation, (vi) the legal capacity of natural persons who are signatories
to the
documents examined by us, (vii) except to the extent set forth in paragraph
2
below, that each of the parties to the docu-ments examined by us has the
power
and authority to execute and deliver, and to perform its obligations under,
such
documents, (viii) except to the extent set forth in paragraph 3 below, the
due
authorization, execution and delivery by all parties thereto of all documents
examined by us, (ix) that each of the documents examined by us constitutes
a
valid and binding agreement of the parties thereto, and is enforceable against
the parties thereto, in accordance with its terms, (x) that Section 203 of
the
General Corporation Law of the State of Delaware (the "General Corporation
Law")
is not applicable to the Company pursuant to subsection (b)(4) thereof, and
(xi)
the Company is a direct or indirect wholly-owned subsidiary of the Parent.
We
have not participated in the preparation of any offering material relating
to
either the Company or the Parent and assume no responsibility for the contents
of any such material. In addition, we assume no responsibility for the filing
of
the Financing Statement with the Division or any other governmental office
or
agency.
This
opinion is limited to the laws of the State of Delaware (excluding the
securities and blue sky laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other state or
jurisdiction, including federal laws (including federal securities and
bankruptcy laws) and rules and regulations relating thereto, or the rules
or
regulations of the stock exchanges or any other regulatory body. Our opinions
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder that are currently in effect.
Based
upon the foregoing, and upon our examination of such questions of law and
statutes of the State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications, limitations
and
exceptions set forth herein, we are of the opinion that:
1. The
Company is duly incorporated, validly existing and in good standing as a
corporation under the General Corporation Law and has all necessary power
and
authority to own, lease and operate its properties and conduct its businesses
as
described in the Offering Memorandum.
2. The
Company has all necessary power and authority under the Certificate of
Incorporation, the Bylaws and the General Corporation Law to execute and
deliver, and to perform its obligations under, each of the Transaction
Documents.
3. The
execution and delivery of the Transaction Documents by the Company, and the
performance by the Company of its obligations thereunder, have been duly
authorized by all necessary corporate action of the part of the Company under
the Certificate of Incorporation, the Bylaws and the General Corporation
Law.
4. The
execution and delivery by the Company of the Transaction Documents, and the
performance by the Company of its obligations thereunder, do not violate
the
Certificate of Incorporation, the Bylaws or the General Corporation Law,
and
(ii) subject to the qualifications set forth in paragraph H below, do not
violate any pending judgment, order or decree binding on the
Company.
5. (A)
No
authorization, consent, approval or order of any Delaware court or any Delaware
governmental or administrative body is required to be obtained by the Company
solely as a result of the execution and delivery by the Company of the
Transaction Documents, and the performance by the Company of its obligations
thereunder, (B) no notice to, or filing with, any Delaware court or any Delaware
governmental or administrative body is required to be made by the Company
solely
as a result of the execution and delivery by the Company of the Transaction
Documents, and the performance by the Company of its obligations thereunder,
and
(C) no other action is required to be taken by the Company solely as a result
of
the execution and delivery by the Company of the Transaction Documents, and
the
performance by the Company of its obligations thereunder, except for the
filing
of financing statements and continuation statements with the
Division.
6. Subject
to the qualifications set forth in paragraph H below, there is no action,
suit
or proceeding to which the Company is a party pending before any court located
in the State of Delaware having jurisdiction over the Company.
7.
Insofar
as Article 9 of the Uniform Commercial Code as in effect in the State of
Delaware on the date hereof (the "Delaware UCC") is applicable (without regard
to conflict of laws principles), upon the filing of the Financing Statement
with
the Division, the Collateral Agent will have a perfected security interest
in
the Company's rights in that portion of the Collateral described in the
Financing Statement that may be perfected by the filing of a
UCC
financing
statement with the Division (the "Filing Collateral") and the proceeds (as
defined in Section 9-102(a)(64) of the Delaware UCC) thereof.
The
opinions expressed above are subject to the following additional assumptions,
qualifications, limitations and exceptions:
| A. |
We
have assumed that (i) the Company has sufficient rights in the
Collateral
and has received sufficient value and consideration in connection
with the
security interests granted under the Security Agreement for the
security
interests of the Collateral Agent to attach, and we express no
opinion as
to the nature or extent of the Company's rights in, or title to,
any
portion of the Collateral, and (ii) each of the Security Agreement
and the
Financing Statement reasonably identifies the Collateral. Accordingly,
we
have assumed that the security interests in the Collateral and
the
proceeds (as defined in Section 9-102(a)(64) of the Delaware UCC)
thereof
have been duly created and have attached. In addition, we have
assumed (i)
that the Company has no interests in real property located in the
State of
Delaware, and (ii) that none of the Filing Collateral consists
of
as-extracted collateral located in the State of Delaware or timber
to be
cut located in the State of Delaware or fixtures located in the
State of
Delaware or goods that are or are to become fixtures located in
the State
of Delaware.
|
| B. |
The
opinion set forth in paragraph 7 above is limited to Article 9
of the
Delaware UCC, and therefore such opinion does not address (i) laws
of
jurisdictions other than the State of Delaware, and of the State
of
Delaware except for Article 9 of the Delaware UCC, (ii) collateral
of a
type not subject to Article 9 of the Delaware UCC, and (iii) what
law
governs perfection of the security interests granted in the collateral
covered by this opinion.
|
| C. |
We
note that further filings under the Delaware UCC may be necessary
to
preserve and maintain (to the extent established and perfected
by the
filing of the Financing Statement as described herein) the perfection
of
the security interests of the Collateral Agent in the Filing Collateral,
including, without limitation, the
following:
|
| i. |
appropriate
continuation filings to be made within the period of six months
prior to
the expiration of five year anniversary dates from the date of
the
original filing of the Financing
Statement;
|
| ii. |
filings
required with respect to proceeds of collateral under Section 9-315(d)
of
the Delaware UCC;
|
| iii. |
filings
required within four months of the change of name, identity or
structure
made by or with respect to the Company, to the extent set forth
in
Sections 9-507 and 9-508 of the Delaware
UCC;
|
| iv. |
filings
required within four months of a change by the Company of its location
to
another jurisdiction, to the extent set forth in Sections 9-301
and 9-316
of the Delaware UCC; and
|
| v. |
filings
required within one year after the transfer of collateral to
a person or
entity that becomes a debtor and is located in another jurisdiction,
to
the extent set forth in Section 9-316 of the Delaware UCC.
|
| D. |
We
do not express any opinion as to the perfection of any security
interest
in any portion of the Collateral that cannot be perfected by
filing of a
financing statement with the Division. In addition, no opinion
is
expressed herein concerning (i) any collateral other than the
Filing
Collateral and the proceeds (as defined in Section 9-102(a)(64)
of the
Delaware UCC) thereof, (ii) any portion of the Filing Collateral
that
constitutes a "commercial tort claim" (as defined in Section
9-102(a)(13)
of the Delaware UCC), or (iii) any consumer transaction. Further,
any
opinion as to the perfection of any security interest in proceeds
(as
defined in Section 9-102(a)(64) of the Delaware UCC) of the Filing
Collateral is qualified to the extent set forth in Section 9-315
of the
Delaware UCC.
|
| E. |
We
express no opinion as to the priority of any security
interest.
|
| F. |
We
call to your attention that under the Delaware UCC, actions taken
by a
secured party (e.g., releasing or assigning the security interest,
delivering possession of the collateral to the debtor or another
person
and voluntarily subordinating a security interest) may affect
the
validity, perfection or priority of a security
interest.
|
| G. |
The
opinions expressed in paragraphs 4 and 7 above are subject to
the effect
of (i) bankruptcy, insolvency, moratorium, receivership, reorganization,
liquidation, fraudulent conveyance and transfer and other similar
laws
relating to or affecting the rights and remedies of creditors
generally,
(ii) principles of equity (regardless of whether considered and
applied in
a proceeding in equity or at law), and (iii) the effect of applicable
public policy with respect to provisions relating to indemnification,
exculpation or contribution.
|
| H. |
Our
opinions as expressed in paragraphs 4 and 6 above are based solely
upon
our search of the records of the Superior Court in and for New
Castle
County, Delaware, the Chancery Court in and for New Castle County,
Delaware, the United States Bankruptcy Court for the District
of Delaware,
and the United States District Court for the District of Delaware,
and
accordingly are limited solely to judgments, orders and decrees
entered
by, and actions, suits and proceedings pending in, said
courts.
|
We
understand that you will rely as to matters of Delaware law upon this opinion
in
connection with the transactions contemplated by the Transaction Documents.
In
connection with the foregoing, we hereby consent to your and your successors’
and assigns’ relying as to matters of Delaware law upon this opinion. Except as
stated above, without our prior written consent, this opinion may not be
furnished or quoted to, or relied upon by, any other person or entity for
any
purpose.
Very
truly yours,
Exhibit
I
Citigroup
Global Capital Markets Inc.
As
Representatives of the Initial Purchasers
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Vitro
Envases Norteamérica, S.A. de C.V.,
$/●/
Aggregate Principal Amount of
/●/%
Senior Secured Guaranteed Notes due /●/
Ladies
and Gentlemen:
We
have
acted as special Swiss counsel for Vitro Envases Norteamérica, S.A. de C.V., a
Mexican corporation (sociedad
anónima de capital variable)
(the
“Company”),
in
connection with (i) the sale by Vitrosa Holding A.G., a Swiss stock company
(the
“Seller”)
of
2,376 class “AA shares” (the “Comegua
Shares”)
of
Empresas Comegua S.A. (“Comegua”)
to
Centro de Tecnología Vidriera LTD., a Swiss stock company (the “Purchaser”)
pursuant to the Share Purchase Agreement dated as of May 31, 2004 between
the
Purchaser and the Seller (the “Comegua
Share Purchase Agreement”),
and
(ii) the
purchase by Citigroup Global Capital Markets Inc. (the "Initial
Purchaser")
pursuant to the Purchase Agreement dated as of /●/, 2004 (the "Purchase
Agreement"),
between the Company and the Initial Purchaser, from the Company of $/●/
aggregate principal amount of the Company's /●/% Senior Secured Guaranteed Notes
due 20[ ](the "Notes").
This
opinion is being delivered to you pursuant to Section 6(i) of the Purchase
Agreement.
In
that
connection, we have examined originals, or copies certified or otherwise
identified to our satisfaction, of such documents, corporate records and
other
instruments as we have deemed necessary or appropriate for the purposes of
this
opinion, including: (a) the Offering Memorandum dated /●/, 2004 (the
“Offering
Memorandum”),
relating to the Notes, (b) the Purchase Agreement, (c) the Indenture
dated
as of /●/, 2004 (the “Indenture”),
among
the Company, the Guarantors (as defined therein) and, The Bank of New York,
as
trustee (the “Trustee”),
(d)
the Master Collateral and Intercreditor Agreement dated as of /●/, 2004 (the
“Master
Collateral and Intercreditor Agreement”)
among
the Company, the Grantors (as defined therein), HSBC Bank USA, National
Association, as collateral and intercreditor agent (the “Collateral
and Intercreditor Agent”),
the
Trustee and such other Secured Parties (as defined therein) as shall, from
time
to time, become party thereto, (e) the
form
of Stock Pledge Agreement attached as an exhibit to the Master Collateral
and
Intercreditor Agreement (the “Comegua
Stock Pledge Agreement”),
(f)
the
Comegua Share Purchase Agreement, (g) the loan agreement, dated as of /July
8/,
2004 (the “Loan
Agreement”)
between the Seller, as lender, and the Purchaser, as borrower, and (h) the
articles of incorporation and excerpts of commercial register ("Swiss Charter
Documents") of Purchaser and Seller.
The
Purchase Agreement, the Indenture, the Notes, the Master Collateral and
Intercreditor Agreement and the Comegua Stock Pledge Agreement are collectively
referred to as the “Transaction
Documents.”
Capitalized terms used but not defined herein have the meanings given to
such
terms in the Indenture.
In
rendering the opinions contained herein, we have assumed: (a) that
each of
the parties to the Transaction Documents (other than the Purchaser) is duly
organized, validly existing and, if applicable, in good standing under the
laws
of the jurisdiction of its incorporation or formation, and has all requisite
power and authority to execute, deliver and perform its obligations under
the
Transaction Documents, (b) that each of the parties to the Transaction
Documents (other than the Purchaser) has duly authorized the Transaction
Documents to which it is a party, (c) that each of the parties to
the
Transaction Documents (other than the Purchaser) has duly executed and delivered
the Transaction Documents to which it is a party under the laws of each
jurisdiction to which any of such parties may be subject, (d) that
each of
the parties to the Transaction Documents (other than the Purchaser) has the
legal power to act in the capacity or capacities in which it is to act
thereunder, (e) that the Comegua Stock Pledge Agreement will be executed
and delivered substantially in the form attached as an exhibit to the Master
Collateral and Intercreditor Agreement, (f) that each of the Transaction
Documents constitutes a legal, valid and binding obligation of each of its
respective parties (other than the Purchaser) and is enforceable under the
laws
of each jurisdiction to which any of the parties thereto may be subject (other
than the law of Switzerland), (g) the performance of, and compliance with,
the
covenants contained in the Transaction Documents by each of the parties thereto,
(h) the authenticity of all documents submitted to us as originals, (i) the
conformity to the original documents of all documents submitted to us as
copies
and (j) the genuineness of all signatures on all documents submitted
to us.
We have also relied, with respect to certain factual matters, on the
representations and warranties contained in the Transaction Documents and
certificates of the Company and its Subsidiaries.
We
express no opinion as to any law other than the law of Switzerland and we
have
assumed that there is nothing in any other law that affects our opinion,
which
is delivered based upon Swiss law applicable on the date hereof. In particular,
we have made no independent investigation of the law of (i) the State of
New
York and/or (ii) the United States of America and/or (iii) any state or other
political subdivision thereof or therein and (iv) Panama and/or Mexico and/or
(v) any state or other political subdivision thereof or therein, as a basis
for
the opinion stated herein and do not express or imply any opinion on or based
on
any law other than Swiss law and we do not purport to pass on any matter
governed by the laws of Mexico, Panama or the State of New York.
This
opinion is limited to Swiss law as applied by Swiss court at the date hereof
and
is given on the basis that it will be governed and construed in accordance
with
Swiss law. By
accepting this opinion you agree, without prejudice to the provisions of
the
Transaction Documents applying to the parties thereto, that Zurich, Switzerland
shall be the exclusive place of jurisdiction for any dispute solely arising
out
of or relating solely to this opinion or its interpretation (it being understood
that the exclusive place of jurisdiction for any and all claims by any party
to
the Transaction Documents against Xxxxx Xxxxxxxxxxxx or any of its partners
or
employees relating to the Transaction Documents and/or this Opinion shall
be
Zurich).
Based
on
the foregoing, and subject to the assumptions, qualifications and limitations
set forth herein, we are of the opinion that:
1. Each
of
the Purchaser and the Seller is duly incorporated, validly existing and in
good
standing under the laws of Switzerland.
2. Each
of
the Purchaser and the Seller has full corporate power and authority to enter
into and perform its obligations under the Comegua Share Purchase Agreement
and
the Loan Agreement, and the Purchaser has full corporate power and authority
to
enter into and perform its obligations under the Master Collateral and
Intercreditor Agreement and will have full power and authority to enter and
perform its obligations under the Comegua Stock Pledge Agreement when
executed.
3. Each
of
the Comegua Share Purchase Agreement and the Loan Agreement has been duly
authorized, executed and delivered by the Seller, and each of the Comegua
Share
Purchase Agreement and the Loan Agreement constitutes a legal, valid and
binding
obligation of the Seller, enforceable against the Seller in accordance with
its
terms.
4. Each
of
the Comegua Share Purchase Agreement, the Loan Agreement and the Master
Collateral and Intercreditor Agreement has been duly authorized, executed
and
delivered by the Purchaser, and each of the Comegua Share Purchase Agreement,
the Loan Agreement and the Master Collateral and Intercreditor Agreement
constitutes a legal, valid and binding obligation of the Purchaser, enforceable
against the Purchaser in accordance with its terms.
5. It
will
not be necessary or advisable under the law of Switzerland that any document
be
filed, registered or recorded in any public office or elsewhere in Switzerland
in order to ensure the validity, effectiveness, enforceability or admissibility
into evidence of the Comegua Share Purchase Agreement or any of the Transaction
Documents to which the Purchaser is a party.
6.
None
of
the execution and delivery of the Comegua Share Purchase Agreement, the Loan
Agreement, the Master Collateral and Intercreditor Agreement and the Comegua
Stock Pledge Agreement by the Purchaser, the consummation of any of the
transactions contemplated thereby or the performance of the terms thereof
will
conflict with, result in a breach or violation of, or the imposition of any
lien, charge or encumbrance upon any property or asset of the Seller or the
Purchaser pursuant to, or constitute a default under, (i) the Swiss Charter
Documents of the Purchaser, (ii) the terms of any indenture or other agreement,
obligation, condition, covenant or instrument to which the Seller or the
Purchaser is a party or
bound
or
to which its property is subject or (iii) any statute, law, rule or regulation
of Switzerland, or, to our knowledge, any order or decree of any Swiss court,
regulatory body, administrative agency, governmental body, arbitrator,
instrumentality or other authority having jurisdiction over the Purchaser
or the
Seller or any of their respective properties.
7. All
of
the outstanding capital stock of the Purchaser is owned of record by the
Company. To the best of our knowledge, such capital stock is owned free and
clear of any Liens.
8. The
Seller has validly and irrevocably transferred to the Purchaser pursuant
to the
Comegua Share Purchase Agreement all of its right, title and interest in
the
Comegua Shares, without recourse, and the Purchaser owns 100% of the Comegua
Shares, free and clear of any Liens. Any
subsequent transfer of the Comegua Shares is subject to the right of first
refusal of the other Comegua shareholders as such right is described in the
by-laws of Comegua.
9. No
authorization, approval or other action by, and no notice to, consent of,
order
of, or filing with, any Swiss court or governmental authority or regulatory
body
is required for the execution, delivery and performance of the Master Collateral
and Intercreditor Agreement, the Comegua Stock Pledge Agreement and the Comegua
Share Purchase Agreement or the consummation of the transactions contemplated
therein.
10. No
tax,
deduction or withholding will be imposed by any national, regional or local
government of Switzerland or any subdivision or agent thereof or therein
on or
by virtue of the execution or delivery of any Master Collateral and
Intercreditor Agreement or the delivery of the Comegua Shares to the Collateral
and Intercreditor Agent under (and as defined in) the Comegua Stock Pledge
Agreement when executed, or the delivery of the Comegua Shares or any exercise
of rights under the Comegua Stock Pledge Agreement when executed.
11. The
choice of New York law as the governing law of the Master Collateral Agreement
is a valid choice of law and will be recognized and given effect to by the
courts of Switzerland.
12. The
irrevocable submission by the Purchaser to the state and federal courts located
in New York, New York is a valid submission to the jurisdiction of such courts
and the appointment of the agent for service of process and the designation
and
method of service of process in the Master Collateral and Intercreditor
Agreement are valid and effective under the law of Switzerland will be
recognized by the courts of Switzerland.
13. A
final
and conclusive judgment obtained in the state or federal courts in New York,
New
York and any appellate court or body thereto against the Purchaser, arising
out
of or in relation to the Transaction Documents, would be enforceable against
the
Purchaser in Switzerland.
The
above
opinion is subject to the following qualifications:
| a. |
This
opinion relates to the laws of Switzerland in effect on the date
hereof.
Such laws are subject to change.
|
| b. |
Enforceability
of each of the Comegua Share Purchase Agreement, the Loan Agreement
and
the Master Collateral and Intercreditor Agreement may be limited
by
applicable bankruptcy, insolvency, fraudulent transfer, and similar
laws
affecting the enforcement of creditors' rights generally, including
Swiss
law principles on good faith (Xxxx
und Glauben;
Art. 2 para. 1 of the Swiss Civil Code) or Swiss law principles
on the
abuse of rights (Rechtsmissbrauch;
Art. 2 para. 2 of the Swiss Civil
Code).
|
| c. |
Where
we refer to enforceability, we only express an opinion as to
enforceability under the rules of procedure applicable in Switzerland.
Enforcement before the courts of Switzerland will in any event
be subject
to:
|
|
(i)
|
the
nature of the remedies available in the Swiss courts (and nothing
in this
opinion must be taken as indicating that specific performance or
injunctive relief would be available as remedies for the enforcement
of
such obligations); and
|
|
(ii)
|
the
acceptance of such courts of jurisdiction and the power of such
courts to
stay proceedings if concurrent proceedings are being brought elsewhere.
|
| d. |
The
enforceability in Switzerland of a foreign judgment rendered against
the
Swiss Parties is subject to the limitations set forth in (x) the
Lugano
Convention on Jurisdiction and Enforcement of Judgments in Civil
and
Commercial Matters of September 16, 1988 (y) such other international
treaties under which Switzerland is bound, and (z) the Swiss Federal
Act
on Private International Law (Bundesgesetz
über das Internationale Privatrecht).
In particular, and without limitation to the foregoing, a judgment
rendered by a foreign court may only be enforced in Switzerland
if:
|
(i) the
foreign court had jurisdiction (in case of (y) and (z));
(ii) the
judgment of such foreign court has become final and non-appealable;
|
(iii)
|
the
judgment of such foreign court on its merits does not violate Swiss
law
principles of public policy (ordre
public);
and
|
|
(iv)
|
the
court procedures leading to the judgment followed the principles
of due
process of law.
|
This
four-factor test may limit the enforceability in Switzerland. In addition,
enforceability of a judgment by a non-Swiss court in Switzerland may be limited
if the Swiss parties were not effectively served with process; if, however,
the
process described in Art. 11.9 of the Master Collateral and Intercreditor
Agreement is followed and the Process Agent at the time of proceedings is
the
appointed process agent of the Purchaser, the Purchaser is considered to
be
effectively served.
e. Claims
may become barred under statutes of limitation or prescription, or may be
or
become subject to available defences such as set-off, counterclaim, force
majeure, material error, duress or fraud. Further limitations may apply with
respect to the indemnification and contribution undertakings of the Swiss
|
Parties
if a court considers an act of the indemnified person as willful
or
grossly negligent.
|
| f. |
A
judgment given by a Swiss court in respect of proceedings instituted
before it based on a claim for currencies other than Swiss Francs
may be
expressed in such currency, if so requested. Enforcement of any
court
judgment under Swiss debt enforcement and bankruptcy proceedings,
however,
may only be made in Swiss Francs and the foreign currency amount
must
accordingly be converted into Swiss Francs at the rate obtained
on (y) the
date of instituting the enforcement proceedings or (z) the date
of the
filing for the continuation of the bankruptcy procedure (Fortsetzungsbegehren).
For enforcement proceedings in Switzerland, a foreign judgment
expressed
in a currency other than Swiss Francs will have to be converted
into Swiss
Francs.
|
| g. |
We
express no opinion as to any commercial, accounting, calculating,
auditing
or other non-legal matter. We express no opinion as to tax matters
and, in
particular, we express no opinion as to any tax gross-up or other
gross-up
provisions contained in the Transaction Documents.
|
| h. |
While
a Swiss court will determine the content of non-Swiss law governing
an
agreement ex
officio,
the parties to such agreement may be requested to assist the court
in
doing so. In case of pecuniary claims the burden of proof may be
imposed
upon the parties. If the content of the governing foreign law cannot
be
determined, the Swiss courts will apply Swiss law to the matter
in action.
|
| i. |
Under
Swiss law, the choice of the laws of the State of New York as the
xxxxx-ning law of the Transaction Documents is valid and binding
as to the
parties of the Transaction Documents, if, under the laws of the
State of
New York, such choice of law is valid. Further, under Swiss law
the choice
of law with regard to the Collateral and Intercreditor Agent's
security
interest rights created in the Master Collateral and Intercreditor
Agreement and the security documents referred to therein and the
perfection thereof cannot be invoked against third parties which
are not
parties to the agreements, such as other creditors of the Company.
Such
third parties could request the application of the law that according
to
the Swiss Federal Act on International Private Law of December
18, 1987
would apply disregarding the choice of law set forth in the Master
Collateral and Intercreditor
Agreement.
|
Pursuant
to the Swiss Federal Act on International Private Law a court may take into
consideration mandatory provisions of Swiss Law or Foreign Law if the facts
have
a close connection to that law and where the interests of a party which are
considered legitimate and clearly prevalent under Swiss legal con-cepts require
it.
| j. |
Pursuant
to the Swiss Federal Act on International Private Law Swiss Swiss
judicial
or administrative authorities may grant interim relief even where
they do
not have jurisdiction to entertain the merits. It
is uncertain whether parties to a contract can agree in advance
as to the
governing law of claims connected with the contract but which are
deemed,
by the Swiss courts, not claims on the contract, such as a claim
in tort.
|
| k. |
Any
provision of a guarantee or indemnity which constitutes, or purports
to
constitute, a restriction on the exercise of any statutory power
by a
guarantor may be ineffective. The enforcement of a guarantee, indemnity
or
other obligation of a Swiss subsidiary , such as the pledge of
shares held
by such subsidiary, for, or with respect to, any obligation of
its
shareholder or any of its affiliates is limited to the freely disposable
shareholder equity of such Swiss subsidiary. Such freely disposable
shareholder equity shall be determined in accordance with Swiss
law and
Swiss accounting principles and shall correspond to the lower amount
of
the Swiss subsidiary's total shareholder equity less the total
of (i) its
aggregate share capital and (ii) its statutory reserves (including
reserves for own shares and revaluations as well as paid-in capital
surplus upon the issuance of new shares) at the time of the granting
of
such guarantee, indemnity or other obligation and at the time of
the start
of the proceedings for enforcement, which amount (x) shall be determined
on the basis of an audited annual or interim balance sheet of the
Swiss
subsidiary, (y) shall be approved by the auditors of the Swiss
Subsidiary
as distributable amount, and (z) shall be or has been duly approved
as
distribution by a duly convened meeting of the shareholders of
the Swiss
subsidiary.
|
| l. |
A
determination, calculation or certification as to any matter provided
for
in the Guarantee may be held by a Swiss court not to be final,
conclusive
or binding if such determination, calculation or certificate could
be
shown to have an unreasonable, incorrect or arbitrary basis or
not to have
been given or made in good faith.
|
| m. |
Where
a party to the Transaction Documents is vested with discretion
or may
determine a matter in its opinion, Swiss law may require that such
discretion is exercised reasonably or that such opinion is based
upon
reasonable grounds.
|
We
are
admitted to the Zurich bar. Accordingly, our opinion is confined to Swiss
law.
We have abstained from examining any issues of any other laws. We express
no
opinion as to matters governed by any laws other than the laws of Switzerland.
In particular, we do not purport to pass on any matter governed by the laws
of
Mexico, Panama or of the State of New York.
We
are
furnishing this opinion to you, as Representative of the Initial Purchasers
of
the Notes, solely for your benefit. This opinion may not be relied upon by
any
other person (including by any person that acquires the Notes from an Initial
Purchaser) or for any other purpose. It may not be used, circulated, quoted
or
otherwise referred to for any other purpose.
Yours
sincerely
