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EXHIBIT 10.15
PURCHASE AGREEMENT
This Purchase Agreement (the "Agreement") is entered into as of December21, 2000
by and among Cemex, S.A. de C.V., a Mexican corporation ("CEMEX"), F.L. SMIDTH
- -& Co. A/Sa Danish corporation ("FLS"), Fabricacion de Maquinaria Pesada, S.A.
de C.V. ("FAMAPE"), Braden Manufacturing, L.L.C., a Delaware limited liability
company ("Braden") and Braden Manufacturing, S.A. de C.V., a Mexican corporation
and subsidiary of Braden ("Buyer"). (Buyer, Braden, FAMAPE, FLS, and CEMEX are
sometimes herein referred to individually as a "Party" and collectively as the
"Parties").
RECITALS
WHEREAS, CEMEX and FLS own the entirety of the capital stock of FAMAPE;
WHEREAS, CEMEX and FLS, as shareholders of FAMAPE, are engaged in the business
of manufacture and sale of heavy equipment and parts in Mexico (the "Business").
WHEREAS, FAMAPE is in the process of terminating the manufacturing and sale of
several units to CEMEX and other third parties under certain purchase orders,
for the purpose of slowing-down and closing FAMAPE's operations and terminating
its relationship with its workers and employees as of the 22nd. of December and
subcontractors as of the Closing (the "Termination Process").
WHEREAS, in connection with the Termination Process, FAMAPE will transfer all of
its assets related to the Business as described in Exhibit A attached hereto
(the "FAMAPE's Assets") to Buyer on or prior to the Closing Date;
WHEREAS, pursuant to the terms and conditions and subject to the limitations and
exclusion as contained in this Agreement, FAMAPE desires to sell and Buyer
desires to purchase, FAMAPE's Assets;
NOW, THEREFORE, in consideration of the covenants and agreements hereinafter set
forth, the Parties agree as follows intending to be legally bound:
1. DEFINITIONS.
For purposes of this Agreement, the terms listed on Exhibit B attached
hereto, forming a part hereof and used herein, have the meanings specified or
referred to in Exhibit B.
2. PURCHASE AND SALE.
2.1 AGREEMENT TO PURCHASE AND SELL. Subject to the terms and
conditions contained herein, FAMAPE agrees to sell, transfer,
assign and deliver to Buyer all its right, title and interest in
and to FAMAPE's Assets, free and clear of any Encumbrances or
Security Interests, and Buyer hereby agrees to buy and acquire
FAMAPE's Assets from FAMAPE.
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2.2 FAMAPE'S ASSETS. "FAMAPE's Assets" are any and all of the assets
of FAMAPE described in Exhibit A and all Tangible and Intangible
Property related to FAMAPE's Assets with respect to which FAMAPE
has any rights , which ownership, possession and title shall, on
or before the Closing Date, be transferred to Buyer in accordance
with the terms and conditions contained herein, including the
Garcia Property.
2.3 CLOSING. The purchase and sale of the FAMAPE's Assets (the
"Closing") provided for in this Agreement will take place,
subject to the satisfaction of the terms and conditions of this
Agreement, at Ave. Constitucion No. 444, Monterrey, N.L. (the
"Closing Date"), commencing at 10:00 a.m. local time on or before
(i) January the 12th.., 2001, or (ii) such later time and place
as the Parties may agree to in writing.
2.4 PURCHASE PRICE.
In consideration for the sale, purchase and transfer of the
ownership, possession and title of the Garcia Property, Buyer
shall pay to FAMAPE (i) the amount of US$ 3'321,500.00 (THREE
MILLION THREE HUNDRED TWENTY ONE THOUSAND AND FIVE HUNDRED U.S.
dollars) (the "Property Purchase Price"), plus the corresponding
Value Added Tax ("impuesto al valor agregado") applicable on the
building. The proper allocation of the Property Purchase Price
between the land and the building and thereon any other
improvements of the Garcia Property, will be set prior to Closing
as Buyer deems appropriate, and (ii) for the rest of FAMAPE's
Assets (the Garcia Property not included), the amount of US$_
3'178,500.00 (THREE MILLION ONE HUNDRED AND SEVENTY EIGHT
THOUSAND AND FIVE HUNDREDU.S. dollars), plus Value Added Tax (the
"Assets Purchase Price").
The total sum of the Property Purchase Price and the FAMAPE's
Assets Purchase Price shall be U.S$6'500,000.00 (SIX MILLION FIVE
HUNDRED THOUSAND UNITED STATES DOLLARS) and constitute the entire
consideration for the purchase of FAMAPE's Assets (the "Purchase
Price").
2.5 TRANSACTIONS AT THE CLOSING. The following actions and
transactions shall take place prior to or at the Closing, as
applicable:
(a) FAMAPE shall enter into (as applicable) and deliver to Buyer
or perform the following actions and/or non actions: (i) not
accept additional purchase orders from any third parties from
October 20, 2000 (hereinafter "Purchase Orders"), (ii) Accept
purchase orders from Braden and/or Buyer under terms and
conditions mutually acceptable to FAMAPE and Braden and/or
Buyer (iii) produce evidence satisfactory to Buyer of the
inscription of a pre-preventive notice ("aviso
pre-preventivo") of the purchase of the Garcia Property by
Buyer and its corresponding certification of freedom from
Encumbrances and
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Security Interests, (iv) terminate its labor relationship
with all its employees and workers on or before December 22,
2000, (v) maintain and keep in full force at Closing Date any
and all insurance contracted during the year prior the
execution of this Agreement and applicable to FAMAPE's
Assets, including but not limited to, the vehicles and the
Garcia Property, (vi) deliver to Buyer all invoices and
payments of any applicable tax concerning FAMAPE's Assets,
including, but not limited to, the endorsement and delivery
of the invoices of the vehicles included in FAMAPE's Assets
and all the payments of the property tax ("tenencia" and
"refrendo"), as applicable, (vii) produce evidence
satisfactory to Buyer of the release and termination of all
Security Interests and Encumbrances on FAMAPE's Assets,
(viii) provide any document or contract as may be required or
appropriate by the law of the State of Nuevo Leon granting to
Buyer good title to the Garcia Property (ix) provide the
Assignment Agreement and Request Letter addressed to the
National Commission of Water for the assignment of the
concession title authorizing the extraction of underground
water in the well(s) located in the Garcia Property), (x)
perform any and all other actions and documents needed to
evidence and perfect the sale, assignment and conveyance to
Buyer of good title to, and possession and use of, all of
FAMAPE's Assets in accordance with this Agreement (including
but not limited to the execution of the Public Deed to
transfer the Garcia Property before a Notary Public chosen by
the Buyer) and (xi) perform or provide any and all other
actions, agreements, instruments, opinions, certificates, and
other documents referred to or contemplated in this
Agreement, including but not limited to the execution of the
Escrow Agreement by the Companies.
(b) CEMEX shall enter into (as applicable) and deliver to Buyer
or perform the following actions: (i) take and induce FAMAPE
to take any action needed for the execution and performance
of this Agreement, and (ii) any and all other actions,
agreements, instruments, opinions, certificates, and other
documents referred to or contemplated in this Agreement.
(c) FLS shall enter into (as applicable) and deliver to Buyer or
perform the following actions: (i) take and induce FAMAPE to
take any action needed for the execution and performance of
this Agreement and (ii) any and all other actions,
agreements, instruments, opinions, certificates, and other
documents referred to or contemplated in this Agreement.
(d) On Closing, Buyer or Braden shall deposit in escrow the
amount of US$ 650,000.00 (Six Hundred and Fifty Thousand U.S.
dollars) (the "Escrowed Amount") with the Escrow Agent
mutually appointed by the Parties (the "Escrow Agent"),
subject to the terms and conditions contained in the escrow
agreement annexed hereto as Exhibit D. The Escrowed Amount
shall be deducted from the Purchase Price. The Escrowed
Amount shall serve to guarantee the Companies'
representations and warranties provided in this Agreement and
shall be effective for the term provided in the Escrow
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Agreement.. At the expiration of such term the Escrowed
Amount minus any applicable deductions made under the Escrow
Agreement shall be delivered to FAMAPE as full payment of the
Purchase Price.
(e) Buyer shall enter into (as applicable) and deliver to FAMAPE
or perform the following actions: (i) Once all the conditions
for Closing are met under this Agreement, transfer funds to
the account designated by FAMAPE in an amount equivalent to
the Purchase Price, plus the value added tax applicable,
minus the Escrowed Amount,, (ii) must pay the taxes
applicable and fees derived as a result of this Agreement
(except the income tax which shall be born by FAMAPE, (iii)
execute the Escrow Agreement and (iv) any and all other
actions, agreements, instruments, opinions, certificates, and
other documents referred to or contemplated in this
Agreement.
(f) Braden shall enter into (as applicable) and deliver to FAMAPE
or perform the following actions: (i) take and induce Buyer
to take any action needed for the execution and performance
of this Agreement and (ii) any and all other actions,
agreements, instruments, opinion, certificates, and other
documents referred to or contemplated in this Agreement.
3. REPRESENTATIONS AND WARRANTIES OF FAMAPE AND THE COMPANIES, AS THE CASE MAY
BE.
The Companies, represent and warrant as the case may be to Buyer and Braden
as follows:
3.1 ORGANIZATION AND GOOD STANDING. The Companies represent and
warrant that each of the Companies is a corporation duly
organized, validly existing and in good standing under the
Mexican laws, with full power and authority to conduct their
Business as it is now being conducted and to perform its
obligations. FAMAPE represents and warrants to own and use
FAMAPE's Assets. FAMAPE has delivered to Buyer true and complete
copies of FAMAPE's articles of incorporation and bylaws, as
currently in effect.
3.2 AUTHORITY NO CONFLICT.
(a) The Companies represent and warrant that this Agreement
has been duly executed and delivered by the Companies and
constitutes the legal, valid, and binding obligations of
the Companies, enforceable against each in accordance
with its terms. Upon the execution of this Agreement and
delivery by the Companies of any Closing Documents to be
executed by them at Closing pursuant to this Agreement,
such Closing Documents shall constitute the legal, valid
and binding obligations of the Companies, enforceable
against each in accordance with their respective terms.
The Companies have the absolute and unrestricted right,
power and authority to execute and deliver this Agreement
and the Closing Documents to which
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each is a Party and to perform their respective
obligations hereunder and thereunder. The execution,
delivery and performance of this Agreement, to the extent
required under any law pursuant to each of the Companies'
Organizational Documents, has been specifically
authorized by the shareholders and/or directors of the
Companies.
(b) The Companies represent and warrant that, except as set
forth in Part 3.2(b) of the Disclosure Schedule, neither
the execution and delivery by the Companies of this
Agreement nor the consummation or performance by the
Companies of any of the Contemplated Transactions will:
(i) Conflict with, violate or result in a breach of
(A) any provision of the Organizational Documents
of the Companies; (B) any Legal Requirement or
any Order to which the Companies or any of their
respective assets may be subject; or
(ii) (A) Contravene, conflict with, or result in a
violation or breach of any provision of, or give
any Person the right to declare a default or
exercise and remedy under, or to accelerate the
maturity or performance of, or to cancel,
terminate or modify, any Contract to which any of
the Companies is a party or any interest or
rights of the Companies; or (B) result in the
imposition or creation of any Security Interest
upon or with respect to any of FAMAPE's Assets.
(c) The Companies represent and warrant that. except as set
forth in Part 3.2(c) of the Disclosure Schedule, none of
the Companies is, nor will be required to give, any
notice to or obtain any Consent from any Person in
connection with the execution and delivery of this
Agreement or consummation or performance of any of the
Contemplated Transactions.
3.3 FINANCIAL STATEMENTS. FAMAPE represent and warrant that attached
hereto as Part 3.3 of the Disclosure Schedule are the following
financial statements of FAMAPE (collectively, the "Financial
Statements") audited balance sheet and statement of income as of
and for the fiscal year ended December 31, 1999. The Financial
Statement (including the notes thereto) have been prepared in
accordance with Mexican GAAP applied on a consistent basis
through the periods covered thereby and present fairly the
financial condition of FAMAPE as of such dates and the results of
operations of FAMAPE for such periods; provided, however, that
the Most Recent Financial Statement are subject to normal
year-end adjustments and lack footnotes and other presentation
items.
3.4 FAMAPE'S ASSETS. Famape represents and warrants that, except as
set forth in Part 3.4 of the Disclosure Schedule, FAMAPE's Assets
(i) are located entirely on the Garcia Property and (ii) comply
in all material respect with the terms of
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the applicable Permits pertaining to them, except for the use of
water which is authorized only for services and not for
industrial uses.
3.5 PERMITS. FAMAPE represent and warrant that: Part 3.5 of the
Disclosure Schedule lists all of the Permits. All of the Permits
are held by FAMAPE. The Permits constitute all material licenses,
permits, registrations and approvals necessary to operate
FAMAPE's Assets. FAMAPE is in material compliance with the terms
of the Permits. Except as set forth on such schedule, the
Companies have not received written notice that any Governmental
Body issuing any Permit intends to cancel, terminate, modify or
amend any Permit.
3.6 ABSENCE OFUNDISCLOSED LIABILITIES. FAMAPE represents and warrants
that except for liabilities, obligations, Encumbrance or Security
Interests disclosed in Part 3.6 of the Disclosure Scheduleor
specifically identified as an undisclosed liability, obligation,
Encumbrance or Security Interests on any othersection of the
Disclosure Schedule, FAMAPE does not have any liabilities,
obligations, Encumbrance or Security Interests of any kind
whatsoever upon, related to or affecting FAMAPE's Assets (whether
direct, indirect, accrued or contingent) and there is no existing
condition or situation which could reasonably be expected to
result in any such liabilities ,obligations, Encumbrance or
Security Interests(hereinafter "Undisclosed Liabilities").
3.7 GARCIA PROPERTY. FAMAPE represents and warrants that FAMAPE has
acquired and paid the entire purchase price for the Garcia
Property. Except as set forth in Part 3.7 of the Disclosure
Schedule, FAMAPE has neither received nor has any knowledge of
any other Person having received any notice of pending or
Threatened claims, Proceedings, planned public improvements,
annexations, special assessments,re-zonings or other adverse
claims affecting the Garcia Property and all improvements on the
Garcia Property are in material compliance with all applicable
Legal Requirements.
3.8 TITLE. ENCUMBRANCES. FAMAPE represents and warrants that except
as set forth on Part 3.8 of the Disclosure Schedule, FAMAPE owns
all FAMAPE's Assets, which shall be free and clear of any and all
Encumbrances or Security Interests.
3.9 TAXES. The Companies represent and warrant that:
(a) Except as set forth on Part 3.9 (a) of the Disclosure
Schedule, FAMAPE has (i) correctly prepared and timely
filed all Tax Returns required to be filed by it in
respect of any Taxes, (ii) timely and properly paid all
Taxes that are due and payable, and no claim for unpaid
Taxes has become a lien against FAMAPE's Assets, and
(iii) complied in all respects with applicable
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laws, rules and regulations relating to the payment and
withholding of Taxes.
(b) Except as set forth on Part 3.9 (b) of the Disclosure
Schedule, no deficiency for any Taxes has been proposed,
asserted or assessed against FAMAPE which has not been
resolved and paid in full; FAMAPE has not waived any
statute of limitations in respect to Taxes or agreed to
any extension of time with respect to any Tax assessment
or deficiency; and FAMAPE is not currently under audit
for Taxes by any Government Body, nor is it aware of any
pending or threatened audit.
(c) No Tax Returns with respect to FAMAPE for taxable periods
ended on or after December 31, 1995, have been audited,
and no Tax Returns of FAMAPE are currently the subject of
audit by the Mexican Government or any representative.
FAMAPE has filed all Tax Returns since December 31,1995.
(d) FAMAPE is not a party to any Tax allocation or sharing
agreement and is not liable for the Taxes of any other
person.
3.10 COMPLIANCE WITH LEGAL REQUIREMENTS. The Companies represent and
warrant that: FAMAPE has complied in all material respects with
all Legal Requirements that are applicable to FAMAPE's Assets.
Except as disclosed in Part 3.10 of the Disclosure Schedule,
FAMAPE has not been Threatened to be charged with or given notice
of any violation (which has not been cured); nor, to the
Companies' Knowledge, FAMAPE is under investigation with respect
to any violation of Legal Requirements applicable to the Business
or FAMAPE's Assets.
3.11 LEGAL PROCEEDINGS; ORDERS. The Companies represent and warrant
that, except as set forth in Part 3.11 of the Disclosure
Schedule, there is no Proceeding pending or, to the Knowledge of
the Companies, Threatened against FAMAPE, including any that
challenges or may have the effect of preventing or otherwise
interfering with, any of the Contemplated Transactions, and there
is no Order to which any of the FAMAPE is subject.
3.12 OTHER CONTRACTS. The Companies represent and warrant that, except
as disclosed in Part 3.12 (a) of the Disclosure Schedule, FAMAPE
is not a Party to or bound by (i) any agreement evidencing
Indebtedness; (ii) any joint venture, partnership or Other
Contract involving a Sharing of liabilities by FAMAPE with any
other Person; (iii) any Other Contract containing convenants that
in any way purport to prevent or affect this Agreement;
3.13 INSURANCE. FAMAPE represents and warrants that it maintains in
full force and effect polices of fire and other casualty,
liability, title and other forms of insurance covering FAMAPE's
Assets, and the operation thereof, of the types
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and with the amounts of coverage as are consistent with industry
standard for comparable businesses. All such polices are in full
force and effect, all premiums with respect thereto have been
paid, and no notice of cancellation or termination has been
received by FAMAPE. Part 3.13 of the Disclosure Schedule lists
all claims pending or for which coverage is disputed under any
such insurance policy.
3.14 ENVIRONMENTAL MATTERS. The Companies represent and warrant that
except as set forth in Part 3.14 of the Disclosure Schedule:
(a) FAMAPE is, and at all times has been, in material
compliance with applicable Environmental Laws. There are
no pending or, to the Knowledge of the Companies,
Threatened claims or Encumbrances arising under or
pursuant to any Enviromnental Law.
(b) The Companies have no Knowledge of, nor have they
received, any citation, directive, inquiry, notice,
Order, summons, warning, or other communication that
relates to any alleged actual or potential liability with
respect to Hazardous Materials.
(c) The Companies have delivered to Buyer true and complete
copies and results of any reports, studies, analyses, tests,
or monitoring possessed or initiated by any of the Companies
pertaining to Hazardous Materials or Hazardous Activities in,
on, or under the Garcia Property.
3.15 INTANGIBLE AND TANGIBLE PROPERTY. FAMAPE represents and warrants
that:
(a) Except as set forth Part 3.15 of the Disclosure Schedule,
FAMAPE uses no Intangible Property in connection with the
operation of the Business conducted in the Garcia
Property and related to FAMAPE's Assets, except for the
Permits, the Books and Records, and software programs
listed as part of FAMAPE's Assets. All Intangible
Property is owned by FAMAPE, and on or before the Closing
will be owned by FAMAPE in order to be able to transfer
such property to the Buyer.
(b) The Tangible Personal Property includes, without
limitation, the assets referred in Exhibit A hereto. All
Tangible Personal Property is owned by FAMAPE and on or
before the Closing will be owned by FAMAPE, in order to
be able to transfer such property to the Buyer.
3.16 RELATIONSHIPS WITH AFFILIATES. The Companies represent and
warrant that except as set forth on Part 3.16 of the Disclosure
Schedule, neither CEMEX nor FLS, nor any other Related Person of
the Companies has any claim or right
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against FAMAPE's Assets. Part 3.16 of the Disclosure Schedule
sets forth all arrangements or agreements between FAMAPE, on the
one hand, and CEMEX, FLS or any Related Person of the Companies,
on the other hand.
3.17 BROKERS OR FINDERS. The Companies represent and warrant that they
have not incurred in any obligation or liability, contingent or
otherwise, for brokerage or finders' fees or agents' commissions
or other similar payment in connection with this Agreement that
will not be paid by the Companies at Closing.
3.18 LABOR MATTERS. The Companies represent and warrant that:
(a) Except as set forth in Part 3.18 (a) of the Disclosure
Schedule, (i) FAMAPE is not a party to or bound by, and
its employees are not covered by any labor or collective
bargaining agreement; (ii) the Companies have no
Knowledge of any pening or threatened strikes, work
stoppages, slowdowns, lockouts, unfair labor practice
charges or complaints, or arbitration arising out of a
collective bargaining agreement, or other labor disputes
against FAMAPE; since December 1, 1998, there has not
been any such action or proceeding; (iii) the Companies
have no Knowledge of any pending or Threatened
complaints, charges or claims against FAMAPE with any
Governmental Authority regarding the employment or
termination of employment by FAMAPE of any individual;
(iv) no Knowledge of any union organization campaign is
presently in progress.
(b) Part 3.18 (b) of the Disclosure Schedule lists the names
of all present employees of FAMAPE, the total
compensation payable to each which compensation has not
increased since October 20, 2000, and vacation days for
each (or pay in lieu thereof).
3.19 BOOKS AND RECORDS. FAMAPE represents and warrants that the books
of account, and other Books and records of the Business are
complete and correct in all material respects and have been
maintained in accordance with the Mexican accounting principles.
3.20 ABSENCE OF CHANGES. FAMAPE represents and warrants that since
December 31,1999, and except as set forth on Part 3.20 of the
Disclosure Schedule, there has not been:
(i) Any Material Adverse Effect; or
(ii) Any transaction by FAMAPE outside the Ordinary Course of
Business, exception made for the Permitted Transactions.
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3.21 ASSETS NECESSARY FOR CONDUCT OF BUSINESS. FAMAPE's Assets are all
of the assets and rights needed to conduct the Business as
presently conducted.
3.22 EQUIPMENT UNDER MAQUILA OR PITEX PROGRAM. Except as set forth in
Schedule 3.22, FAMAPE represents and warrants that the Famape
Assets arenot subject to or under any Maquila, Pitex or similar
exportation program.
3.23 INDEMNIFICATION IN CASE OF DISPOSSESSION. FAMAPE in this act
informs and discloses to the Buyer and to Braden about the
existence of a project for the construction of a thoroughfare
service parallel to the main highway that, if performed, could
affect the Garcia Property. Buyer and Braden waive the
indemnification from the Companies in case of dispossession for
such action since each has full knowledge of the risks that it
implies, expressly accepting to submit to its consequences and to
assume the responsibility over them, and consequently releases
the Companies and its shareholders, representatives, and
affiliates of all responsibility and obligation that could
correspond to it after Closing. Other than the above project, the
Companies have no knowledge of any action to be taken by any
Governmental authority with respect to the Garcia Property.
3.24 FAMAPE represents and warrants that FAMAPE is the legal owner of
the Concession Title No. 2NVL104048/24ELGE97, issued on August
12, 1997 by the National Commission of Water ("CNA"), with an
authorized annual consumption volume of 14,900.00 m3 for services
purposes ("Water Concession Title") and of the Concession Title
No. 2NVL102987/24EMGE96 issued on June 17, 1997 by the CNA for
the discharge of residual water (the "Water Discharge Title")
(jointly the "Concession Titles"), and further, FAMAPE represents
and warrants that such Concession Titles can be assigned to Buyer
with their authorized volumes and changed their uses for
industrial purposes.
4. REPRESENTATIONS AND WARRANTIES OF BRADEN AND BUYER.
Braden and Buyer, jointly and severally, represent and warrant to the
Companies as follows:
4.1 ORGANIZATION AND GOOD STANDING. Buyer and Braden are corporations
duly organized, validly existing, and in good standing under the
laws of Mexico and State of Delaware. Buyer and Braden have
delivered to FAMAPE true and complete copies of Buyer's articles
of incorporation and bylaws, as currently in effect.
4.2 AUTHORITY; NO CONFLICT.
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(a) This Agreement has been duly and validly executed and
delivery by Braden and Buyer and constitutes the legal,
valid, and binding obligation of Braden and Buyer,
enforceable against each in accordance with its terms
except to the extent that their enforceability may be
subject to applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and to general
equitable principles. Upon the execution and delivery by
Braden and Buyer of the Closing Documents to which each
is a party, such Closing Documents will constitute the
legal, valid, and binding obligations of Braden and
Buyer, enforceable against each in accordance with their
respectiveterms, except to the extent that their
enforceability may be subject to applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally
and to general equitable principles. Braden and Buyer
have the power, and authority to execute and deliver this
Agreement to each party and to perform their respective
obligations thereunder. The execution and delivery of
this Agreement have been authorized by the Board of
Directors of Braden.
(b) Neither the execution and delivery of this Agreement by
Braden or Buyer nor the consummation or performance of
any of the Contemplated Transactions by Braden or Buyer
will conflict with, violate or result in a breach of (i)
any provision of Braden or Buyer's Organizational
Documents, (ii) any Legal Requirement or Order to which
Braden or Buyer may be bound. Braden and Buyer are not
and will not be required to give any notice to or obtain
any Consent from any Person in connection with the
execution and delivery of this Agreement or the
consummation or performance of any of the Contemplated
Transactions.
4.3 SOURCE OF FUNDS. The payment of the Purchase Price will be made
by Buyer from funds obtained by Buyer in compliance with all
applicable laws.
4.4 CERTAIN PROCEEDINGS. There are no Proceedings pending, or to
Braden's or Buyer's Knowledge, Threatened against the Buyer or
Braden that challenges, or may have the effect of preventing, or
otherwise interfering with any of the Contemplated Transactions.
4.5 BROKERS OR FINDERS. Braden and Buyers have not incurred any
obligation or liability, contingent or otherwise, for brokerage
or finders' fees or agents' commissions or other similar payments
in connection with this Agreement that will not be paid by Buyer
or Braden.
5. COVENANTS OF FAMAPE OR THE COMPANIES AS THE CASE MAY BE.
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5.1 ACCESS AND INVESTIGATION. Between the date of this Agreement and
until the Closing Date, FAMAPE will and CEMEX and FLS will cause
FAMAPE and its Representatives to afford Buyer and its
Representatives, reasonable access during normal business hours
to FAMAPE's Assets and FAMAPE's Books and Records, and other
documents and data, and furnish Buyer and its Representatives
with copies of the same, upon Braden or Buyer written request.
Without limiting the generality of the foregoing, one day prior
to Closing Date, Braden, Buyer and their Representatives shall
have access to the Garcia Property in order to inspect and verify
the conditions of FAMAPE's Assets and the accuracy of the
Companies' representations and warranties concerning FAMAPE's
Assets. Such verification and inspection shall not release the
Companies from their obligations under this Agreement.
5.2 OPERATION OF FAMAPE. Between the date of this Agreement and the
Closing Date, FAMAPE shall,:
(a) operate only the Permitted Transactions;
(b) use their Best Efforts to maintain FAMAPE's Assets in the
conditions as they are as of the execution of this
Agreement and maintain the relations and good will with
suppliers and others, associated with the operation of
the Business in the Garcia Property, in the understanding
that FAMAPE will not be responsible for the damages
caused to the FAMAPE's Assets as a result of an act or
omission of Buyer's employees;
(c) confer on a regular and frequent basis with Buyer and its
Representatives to discuss operational matters and the
general status of ongoing operations;
(d) promptly notify Buyer of any material changes in the
Business or FAMAPE's Assets; and
(e) perform the transactions contemplated by Section 2.5
hereof.
5.3 NEGATIVE COVENANTS. Except as otherwise provided herein between
the date of this Agreement and the Closing Date, FAMAPE shall
not:
(a) operate the Business, except for the Permitted
Transactions;
(b) acquire, or publicly propose to acquire, all or any
substantial part of the business and properties or
capital stock of any Person, whether by merger, purchase
of assets, tender offer or otherwise related with the
Business;
(c) Adopt, enter into or amend any bonus, profit sharing,
compensation, stock option, pension, retirement, deferred
compensation, health care, employment or other employee
benefit plan, agreement, trust, fund or arrangement for
the benefit or welfare of any employee or retiree of
FAMAPE, except as authorized by Buyer;
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(d) Incur any indebtedness for money borrowed or guarantee
any such indebtedness or issue or sell any debt
securities or make any loans or advances, or make any
capital expenditures;
(e) Sell, lease or dispose or any of FAMAPE's Assets.
(f) Agree in writing, or otherwise, to take any of the
foregoing actions or any other actions which would make
any representations or warranties of the Companies
contained in this Agreement untrue or incorrect in any
material respect as of the Closing Date.
5.4 REQUIRED FILINGS AND CONSENTS. As promptly as practicable after
the date of this Agreement, FAMAPE shall make all filings
required by Legal Requirements to be made by FAMAPE in order to
consummate the Contemplated Transactions and will obtain those
certain Consents specifically identified on Disclosure Schedule
5.4 hereof (the "Required Filings and Consents"). In addition,
the Companies shall obtain before the expiration of the Escrow
Agreement, the authorization from the CNA for the assignment of
the Concessions Titles mentioned in Section 3.24 of this
Agreement and shall obtain the change of use to be for industrial
purposes, keeping the authorized consumption volume stated in
Section 3.24. The Companies agree to hold Buyer harmless from any
fines or cancellation of right to exploit the water under the
Concession stated in 3.24 as a result of any action of any
governmental authority or for any industrial use. In such cases,
the Companies shall assume the responsibility to supply the
Buyer's water requirements in the best possible way.
5.5 NOTIFICATION. Between the date of this Agreement and the Closing
Date, the Companies will promptly notify Buyer and Braden in
writing if any of the Companies become aware of any fact or
condition that causes or constitutes a materia breach of any of
their representations and warranties as of the date of this
Agreement, or if any of the Companies becomes aware of the
occurrence after the date of this Agreement of any fact or
condition that would (except as expressly contemplated by this
Agreement) cause or constitute a material breach of any such
representation or warranty had such representation or warranty
been made as the time of occurrence or discovery of such fact or
condition. During the same period, the Companies will promptly
notify Buyer and Braden of the occurrence of any material breach
of any covenant of the Companies in this Section 5 or of the
occurrence of any event that may make the satisfaction of the
conditions in Section 7 impossible or unlikely.
5.6 NO NEGOTIATION. Until the earlier of the Closing or such time, if
any, as this Agreement is terminated pursuant to Section 9, the
Companies agree that neither of them, nor any of their
Affiliates, will, nor will they permit respective
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Representatives to, directly or indirectly solicit, initiate, or
encourage any inquiries or proposals from, discuss or negotiate
with, provide any non-public information to, or consider the
merits of any unsolicited inquiries, or proposals from, any
Person (other than Buyer, Braden or their Representatives)
relating to or affecting any transaction involving the sale of
FAMAPE's Assets.
5.7 ENCUMBRANCES AND SECURITY INTERESTS. The Companies agree to pay,
and cause FAMAPE to pay, all Indebtedness of FAMAPE which imposes
any Encumbrances or Security Interest on FAMAPE's Assets and to
obtain at or prior to the Closing and deliver to Buyer at the
Closing, releases of any Encumbrances and Security Interest on
FAMAPE's Assets.
5.8 NON-COMPETITION. The Companies shall not compete with or assist
others to compete with Braden and the Buyer directly or
indirectly in the manufacturing of equipment and parts for in the
electrical and power generation industries in Mexico for a term
of five years after Closing. Buyer and Braden shall not compete
with or assist others to compete with the Companies directly or
indirectly in Mexico in the manufacturing of equipment and parts
for use in the cement and mining industries for a term of five
years after Closing.
5.9 GARCIA PROPERTY. FAMAPE shall deliver to Buyer the Garcia Deed
and all other instruments of transfer and all other related
documents, if any, as may be necessary to evidence or perfect the
sale, assignment and conveyance to Buyer of good title to the
Garcia Property.
5.10 FAMAPE'S EMPLOYEES. FAMAPE shall terminate in compliance with the
applicable Labor Law, prior to December 22 2000 its labor
relationship with all FAMAPE's employees and workers.
6. COVENANTS OF BUYER AND BRADEN.
6.1 REQUIRED APPROVALS. As promptly as practicable after the date
this Agreement, Buyer and Braden will make all filings required
by Legal Requirements to be made by them to consummate the
Contemplated Transactions.
6.2 NOTIFICATION. Between the date of this Agreement and the Closing
Date. Buyer will promptly notify the Companies in writing if
Buyer or Braden becomes aware of any fact that causes or
constitutes a breach of any of Buyer or Braden's representations
and warranties as of the date of this Agreement, or if Buyer or
Braden become aware of the occurrence after the date of this
Agreement of any
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fact or condition that would (except as expressly contemplated by
this Agreement) cause or constitute a breach of any such
representation or warranty had such representation or warranty
been made as of the time of occurrence or discovery of such fact
or condition. During the same period, Buyer will promptly notify
of the occurrence of any breach of any covenant of Buyer in this
Section 6 or of occurrence of any event that makes the
satisfaction of the conditions in Section 8 impossible or
unlikely.
6.3 NO NEGOTIATION. Until the earlier of the Closing or such time, if
any, as this Agreement is terminated pursuant to Section 9, Buyer
and Braden agree that neither of them, nor any of their
Affiliates, will, nor will they permit respective Representatives
to, directly or indirectly solicit, initiate, or encourage any
inquiries or proposals from, discuss or negotiate with, provide
any non-public information to, or consider the merits of any
unsolicited inquiries, or proposals from, any Person (other than
the Companies or their Representatives) relating to or affecting
any transaction involving the sale of FAMAPE's Assets.
7. CONDITIONS PRECEDENT TO BUYER'S AND BRADEN'S OBLIGATIONS TO CLOSE.
Buyer's obligation to purchase FAMAPE's Assets and Buyer and Braden's
obligations to take any other actions required to be taken by Buyer and/or
Braden under this Agreement at the Closing is subject to satisfaction, at or
prior to the Closing, of each of the following conditions (any of which may be
waived by Buyer and Braden, in whole or in part):
7.1 ACCURACY OF REPRESENTATIONS. Each of the Companies'
representations and warranties in this Agreement must have been
accurate in all material respects as of the date of this
Agreement, and subject to the changes needed by the Permitted
Transactions, must be accurate in all material respects as of the
Closing Date, and Buyer shall have received a certificate by the
Companies, dated as of the Closing Date, as to such accuracy.
7.2 THE COMPANIES' PERFORMANCE. The covenants and obligations that
FAMAPE or the Companies are required to perform or to comply with
pursuant to this Agreement at or Prior to the Closing must have
been performed and complied with in all material respects,
including, without limitation, the delivery of possession of
FAMAPE's Assets, the release of any Security interest or
Encumbrances on FAMAPE's Assets, the obtaining of the Required
Filings and Consents, and Buyer shall have received a certificate
of the Companies, dated as of the Closing Date, as to such
compliance.
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7.3 ADDITIONAL DOCUMENTS. Each of the following documents must have
been delivered to Buyer:
(a) a favorable opinion of counsel to the Companies dated on
the Closing Date, to the effect set forth on Exhibit E;
(b) , the delivery by FAMAPE of FAMAPE's external auditors
statement establishing that there is no Material Adverse
Effect in the course of the Business of FAMAPE as of and
for the ten months ended October 2000 (the "Most Recent
Fiscal Month End");
(c) the deliveries required from each of the Companies in
Section 2.5; and
(d) such other documents as Buyer or Braden may reasonably
request (including but not limited to the issuance of
invoices) for the purpose of (i) evidencing the satisfaction
of any condition referred to this Section 7, or (ii) otherwise
facilitating the consummation of performance of any of the
Contemplated Transactions.
7.4 NO PROCEEDING. Since the date of this Agreement, there must not
have been commenced, pending or Threatened any Proceeding (i)
involving any challenge to, or seeking damages or other relief in
connection with, any of the Contemplated Transactions or FAMAPE's
Assets, (ii) that prevents, makes illegal, or otherwise
materially interferes with any of the Contemplated Transactions
or seeks to do any of the foregoing, or (iii) that involves any
material claim against the Companies or FAMAPE's Assets.
7.5 NO PROHIBITION. There must not be in effect any Legal Requirement
or any injunction or Order that prohibits or restricts the
consummation of the Contemplated Transactions.
7.6 ABSENCE OF MATERIAL ADVERSE EFFECT. Since the date hereof, there
will not have been any Material_Adverse Effect.
7.7 COMPLETION OF THE TERMINATION PROCESS. On or before the Closing
Date, the Termination Process shall have been completed and the
FAMAPE shall be the owner of all FAMAPE's Assets, free and clear
of all Security Interests and Encumbrances, in order to be able
to transfer all FAMAPE's Assets to the Buyer.
7.8 DUE DILIGENCE. On or before the Closing Date, the due diligence
process has been completed to Braden and Buyer's satisfaction.
7.9 EXISTANCE OF FAMAPE'S ASSETS. That FAMAPE's Assets do not have
any Encumbrance or Security Interests of any kind, do effectively
exist and have their
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corresponding invoice issued on behalf of FAMAPE and that all
FAMAPE's Assets have their proper documentation and all
applicable importation taxes have been paid, as the case may be.
7.10 FINANCING. That adequate financing from a bank is obtained.
7.11 BOARD OF DIRECTORS' APPROVAL. That the execution of the Closing
Documents t be approved by Braden's Board of Directors.
8. CONDITONS PRECEDENT TO THE COMPANIES' OBLIGATIONS TO CLOSE.
FAMAPE's obligations to sell FAMAPE's Assets and the Companies' obligations to
take the actions required to be taken by such Parties at the Closing are subject
to the satisfaction, at or prior to the Closing, of each of the following
conditions (any of which may be waived by the Companies in whole or in part).
8.1 ACCURACY OF REPRESENTATIONS. Braden and Buyer's representations
and warranties in this Agreement must have been accurate in all
material respects as of the date of this Agreement and must be
accurate in all material respects as of the Closing date as if
made on the Closing Date, and FAMAPE shall have received a
certificate of an executive officer of Buyer and Braden, dated as
of the Closing Date, as to such accuracy.
8.2 BUYER'S PERFORMANCE. The covenants and obligations that Buyer and
Braden are required to perform or to comply with pursuant to this
Agreement at or prior to the Closing must have been performed and
complied with in all material respects, and FAMAPE shall have
received a certificate of an executive officer of Buyer and
Braden, dated as of the Closing date, as to such compliance.
8.3 ADDITIONAL DOCUMENTS. Buyer must have caused the following
documents to be delivered to FAMAPE or the Companies, as
applicable:
(a) a favorable opinion of counsel to Buyer dated on the
Closing Date, to the effect set forth in Exhibit F;
(b) the deliveries required from Buyer in Section 2.5; and
(c) such other documents as Companies may reasonably request
for the purpose of (i) evidencing the satisfaction of any
condition referred to this
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Section 8, or (ii) otherwise facilitating the
consummation of performance of any of the Contemplated
Transactions.
8.4 PURCHASE PRICE. Buyer shall have paid the Purchase Price minus
the Escrowed Amount.
8.5 ESCROWED AMOUNT. FAMAPE shall have received in escrow the
Escrowed Amount on the Closing Date.
9. TERMINATION
9.1 TERMINATION WITH NOTICE, This Agreement may, by notice given
prior to or at the Closing, be terminated by mutual written
consent of all the Parties.
9.2 AUTOMATIC TERMINATION, Without any responsibility of the parties
herein, this Agreement shall automatically terminate as of
midnight, January 31, 2001, if the Closing has not occurred,
unless otherwise agreed by the parties in writing.
9.3 EFFECT OF TERMINATION. Buyer or Brader's right of termination
under Section 9.1 is in addition to any other rights it may have
under this Agreement. If this Agreement is terminated pursuant to
Section 9.1 and 9.2, all further obligations of the Parties under
this Agreement will terminate, except that the obligations in
Sections 11.1 and 11.2 will survive.
10. INDEMNIFICATION; REMEDIES.
10.1 INDEMNIFICATION AND PAYMENT OF DAMAGES BY THE COMPANIES. The
Companies will, jointly and severally, indemnify and hold
harmless Buyer and Braden, their stockholders, controlling
Persons, and Affiliates (collectively, the "Seller Indemnified
Persons") for, and will pay to the Seller Indemnified Persons the
amount of, any loss, liability, claim, damage, expenses
(including reasonable costs of investigation and defense and
reasonable attorneys' fees), whether or not involving a
third-party claim (collectively, "Damage"), arising from :
(a) any breach of any representation or warranty made by the
Companies or in any of them in this Agreement, the
Exhibits, the Disclosure Schedule, or any other
certificate or document delivered by any of them,
pursuant to this Agreement;.
(b) any breach by the Companies or any of them, of any
covenant or obligation in this Agreement or in any
certificate or document delivered by any of them,
pursuant to this Agreement; and
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(c) Any liabilities with respect to the FAMAPE Assets or
operation of the Business derived as a result of an act
or omission occurred on or before the Closing Date
including, without limitations, the following:
(i) any liabilities for or with respect to any FAMAPE
employees and workers, including without limitation, employee
salaries, benefits, severance payments and any matter relating
to the operation or ownership of the Business derived as a
result of an act, event or omission occurred on or before the
Closing Date;
(ii) any liabilities concerning the Environment and
Environmental matters derived as a result of an act, event or
omission occurred on or before the Closing Date, with respect
to the Garcia Property and the rest of FAMAPE's Assets; and
(iii) any liabilities concerning Tax matters derived as a
result of an act, event or omission occurred in connection
with the Business conducted in the Garcia Property and with
FAMAPE's Assets, occurred on or before the Closing Date.
(d) any liabilities concerning any Material Adverse Effect
that affects the possession of the FAMAPE's Assets, as a
result a claim by a third party provided such claim is based
upon a right or title acquired prior to the Closing.
10.2 INDEMNIFICATION AND PAYMENT OF DAMAGES BY BRADEN AND BUYER.
Braden and Buyer will, jointly and severally, indemnify and hold
harmless the Companies and their stockholders, controlling
Persons and Affiliates (collectively, the "Buyer Indemnified
Persons") for, and will pay to the Buyer Indemnified Persons the
amount of, any loss, liability, claim, damage and expenses
(including reasonable costs of investigation and defense and
reasonable attorneys' fees), whether or not involving a
third-party claim (Contract:
(a) any breach of any representation or warranty made by
Buyer in this Agreement or in any certificate or document
delivered by Buyer pursuant to this Agreement; and
(b) any breach by Buyer of any covenant or obligation of
Buyer in this Agreement.
10.3 PROCEDURE FOR INDEMNIFICATION - THIRD PARTY CLAIMS.
(a) Promptly after receipt by an Indemnified Person under
Section 10.1 or 10.2, of notice of any claim against it,
such Indemnified Person will, if a claim is to be made
against an Indemnifying Party under such Section,
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give notice to the Indemnifying Party of the commencement
of such claim, but the failure to notify the Indemnifying
Party will not relieve the Indemnifying Party of any
liability that it may have to any Indemnified Person,
except to the extent that the Indemnifying Party
demonstrates that the defense of such action is
prejudiced by the Indemnified Party's failure to give
such notice.
(b) If any claim referred to in Section 10.3 (a) is brought
against an Indemnified Person and such Indemnified Person
gives notice to the Indemnifying Party of the
commencement of a proceeding with respect to such claim
(a "Proceeding"), the Indemnifying Party will be entitled
to participate in such Proceeding and, to the extent that
it wishes (unless (i) the Indemnifying Party is also a
party to such Proceeding and the Indemnified Person
determines in good faith that joint representation would
be inappropriate or (ii) the Indemnifying Party fails to
provide reasonable assurance to the Indemnified Person of
its financial capacity to defend such Proceeding and
provide indemnification with respect to such Proceeding),
to assume the defense of such Proceeding with counsel
satisfactory to the Indemnified Person and, after notice
from the Indemnifying Party to the Indemnified Person of
its election to assume the defense of such Proceeding,
the Indemnifying Party will not, as long as it diligently
conducts such defense, be liable to the Indemnified
Person under this Section 10 for any fees of other
counsel (other than in the circumstances provided above)
or any other expenses with respect to the defense of such
Proceeding. If the Indemnifying Party assumes the defense
of a claim, (i) no compromise or settlement of any such
claim may be effected by the Indemnifying Party without
the Indemnified Person's consent unless (A) there is no
finding or admission of any violation of Legal
Requirements or any violation of the rights of any
Indemnified Person, and (B) the sole relief provided is
monetary damages that are paid in full by the
Indemnifying Party; and (ii) the Indemnified Person will
have no liability with respect to any compromise or
settlement of such claims effected without its consent.
Subject to Section 10.3 (c), if notice is given to an
Indemnifying Party of any claim and the Indemnifying
Party does not, within ten (10) days after the
Indemnified Person's notice is given, give notice to the
Indemnified Person of its election to assume the defense
of such claim, the Indemnifying Party will be bound by
any determination made in such Proceeding or any
compromise or settlement effected by the Indemnified
Person and will be liable for all expenses if it
wrongfully failed to assume such defense.
(c) Notwithstanding the foregoing, if an Indemnified Person
determines in good faith that there is a reasonable
probability that a claim may adversely affect it or its
affiliates other than as a result of monetary damages for
which it would be entitled to indemnification under this
Agreement, the Indemnified Person may, by notice to the
Indemnifying
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Party, assume the exclusive right to defend, compromise,
or settle such claim, but the Indemnifying Party will not
be bound by any determination of a claim so defended or
any compromise or settlement effected without its consent
(which may not be unreasonably withheld) or delayed.
10.4 PROCEDURE FOR INDEMNIFICATION - OTHER CLAIMS. A claim for
indemnification for any matter not involving a third-party claim
shall be asserted by written notice to the Indemnifying Party
from whom indemnification is sought.
10.5 SURVIVAL/LIMITATIONS. The Parties hereto agree that the
representations, warranties and covenants contained herein shall
survive to the extent of the statute of limitations provided
under Mexican Law. In no event shall the obligation to indemnify
the Seller Indemnified Persons and the Buyer Indemnified Persons
for Damages pursuant to Section 10.1 (a) or (b) and 10.2 (a) or
(b) hereof exceed the Purchase Price.
10.6 EXCLUSIVE REMEDY. After the Closing indemnification provisions in
this Section 10 are the exclusive remedies of the Parties for any
breach of a representation warranty or covenant contained herein.
11. GENERAL PROVISIONS
11.1 EXPENSES. Except as otherwise expressly provided in this
Agreement, each Party to this Agreement will bear its respective
expenses incurred in connection with the preparation, execution,
and performance of this Agreement and the Contemplated
Transactions, including all fees and expenses of agents,
representatives, brokers or finders, counsel, and accountants. In
the event of termination of this Agreement, the obligation of
each Party to pay its own expenses will be subject to any rights
of such Party arising from a breach of this Agreement by another
Party.
11.2 PUBLIC ANNOUNCEMENTS; CONFIDENTIALITY. Any public announcement or
similar publicity with respect to this Agreement of the
Contemplated Transactions will be issued, if at all, only if and
after the Parties agree in writing, provided that nothing
contained herein shall prevent any Party from at any time
furnishing information required by a Governmental Body or making
any disclosures required by applicable Legal Requirements. Unless
consented to by Buyer and Braden in advance or required by Legal
Requirements, prior to the Closing, each Party shall, and shall
cause their respective Representatives to, keep this Agreement
strictly confidential and may not make any disclosure of this
Agreement to any Person.
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11.3 NOTICES. All notices, consents, waivers, and other communication
under this Agreement must be in writing and will be deemed to
have been duly given when
(a) delivered by hand (with written confirmation of receipt),
(b) sent by telecopier (with written confirmation of receipt),
provided that a copy is mailed by registered mail, return
receipt requested, or (c) when received by the addressee, if
sent by a nationally recognized overnight delivery service
(receipt requested), in each case to the appropriate addresses
and telecopier numbers set forth below (or to such other
addresses and telecopier numbers, as a Party may designate by
notice to the other Parties):
If to the Braden and/or Buyer:
Braden Manufacturing L.L.C.
5199 N. Mingo Road
Tulsa, Ok. 74117
Attn: Jack Silver
Telephone No.: (918) 272-53-71
Facsmile No.: (918) 274-23-78
With a copy to:
Santos, Elizondo, Cantu, Rivera
, Gonzalez, De la Garza, S.C.
Edificio Losoles Desp. B-33
Av. Lazaro Cardenas 2400 Pte.
Apartado Postal 497
San Pedro Garza Garcia, N.L. 66220
Attention: Carlos de la Garza Santos, Esq.
Telephone No.: (528) 363-3340
Facsimile No.: (528) 363-3684
If to CEMEX, to:
Cemex, S.A. de C.V.
Ave. Constituci6n 444 Pte.
Monterrey, N.L. CP 64,000
att: Ing. Roberto Herrera Ritte
With a copy to:
Lic. Raul Salinas Tijerina:
Cemex, S.A. de C.V.
Ave. Constitucion 444 Pte.
Monterrey, N.L. CP 64,000
If to FLS, to:
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to F.L.Smidth & Co A/S
Vigerslev Alle 77,
DK-2500 Valby
Copenhagen,
Denmark
att: S -- ren Iversen
Telephone No.: (45) 36 18 10 00
Facsmile No.: (45) 36 30 18 20
With copy to:
F.L.Smidth-Fuller Mecxico S.A. de C.V.
San Alberto 406
Residencial Santa Barbara
Garza Garcia, N.L. 66260
Mexico
att: Mr. Andreas Asmussen
Telephone No.: (52) 83 63 31 50
Facsmile No.: (52) 83 63 34 21
11.4 FURTHER ASSURANCES. The Parties agree (a) to furnish upon request
to each other such further information, (b) to execute and
deliver to each other such other documents, and (c) to do such
other acts and things, all as the other Parties may reasonably
request for the purpose of carrying out the intent of this
Agreement and the documents referred to in this Agreement, all at
the sole cost and expense of the requesting Parties (unless the
requesting Parties are entitled to indemnification therefor under
Section 10).
11.5 WAIVER. Neither the failure nor any delay by any Party in
exercising any right, power, or privilege under this Agreement or
the documents referred to in this Agreement will operate as a
waiver of such right, power, or privilege, and no single or
partial exercise of any such right, power, or privilege will
preclude any other or further exercise of such right, power, or
privilege.
11.6 ENTIRE AGREEMENT AND MODIFICATION. This Agreement supersedes all
prior agreements between the parties with respect to its subject
matter and constitutes (along with the documents referred to in,
or executed in connection with, this Agreement) a complete and
exclusive statement of the terms of the agreement between the
Parties with respect to its subject matter. This Agreement may
not be amended except by a written agreement executed by the
Party to be charged with the amendment.
11.7 ASSIGNMENTS, SUCCESSORS, AND NO THIRD-PARTY RIGHTS. Except as
otherwise expressly provided for herein, no Party may assign any
of its rights under this
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Agreement without the prior written consent of the other Party;
provided, however, that Buyer may assign its rights and
obligations hereunder to an Affiliate of Braden or Buyer or their
financing sources by way of security to any person appointed to
enforce such security or any person in connection with such
enforcement. This Agreement will apply to, be binding in all
respects upon, and inure to the benefit of the Parties, their
successors, and their permitted assigns. Nothing expressed or
referred to in this Agreement will be construed to give any
Person other than the Parties to this Agreement any legal or
equitable right, remedy, or claim under or with respect to this
Agreement or any provision of this Agreement.
11.8 SEVERABILITY. If any provision of this Agreement is held invalid
or unenforceable by any court of competent jurisdiction, the
other provisions of this Agreement will remain in full force and
effect. Any provision of this Agreement held invalid or
unenforceable only in part or degree will remain in full force
and effect to the extent not held invalid or unenforceable.
11.9 POST-CLOSING ACCESS. Buyer agrees that all Books and Records
delivered to Buyer pursuant to this Agreement shall be maintained
open for inspection by the same at any time during regular
business hours upon reasonable notice for a period of one (1)
months (or for such longer period as may be required by
applicable Legal Requirements) following the Closing and that,
during such period, the Companies, at their expense, may make
such copies thereof as it may reasonably be required (subject in
each case to the Companies' obligations to maintain the
confidentiality of such Books and Records). Nothing contained in
this Section 11.09 shall obligate any Party hereto to make
available any books and records if to do so would violate the
terms of any Contract or Legal Requirement to which it is a Party
or to which it or its assets are subject.
11.10 HEADINGS: CONSTRUCTION. The headings of Sections in this
Agreement are provided for convenience only and will not affect
its construction or interpretation. All words used in this
Agreement will be construed to be of such gender or number as the
circumstances require. Unless otherwise expressly provided, the
word "including" does not limit the preceding words or terms.
11.11 APPLICABLE LAW. This Agreement shall be governed and controlled
as to validity, enforcement, interpretations, construction,
effect and in all other respects by the applicable laws of the
State of Nuevo Leon, Mexico. The Parties hereto agree to submit
exclusively to the jurisdiction of the courts residing in the
Municipality of Monterrey, Nuevo Leon, Mexico, any dispute or
controversy arising out of or relating to this Agreement.
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11.12 INCORPORATION OF EXHIBITS AND SCHEDULES. The Exhibits and
Schedules identified in this Agreement are incorporated herein by
reference and made a part hereof.
11.13 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original copy
of this Agreement and all of which, when taken together, will be
deemed to constitute one and the same agreement.
11.14 LANGUAGE. This Agreement will be signed in English and Spanish.
In case of any controversy or any dispute, the Spanish version
shall prevail.
IN WITNESS WHEREOF, the Parties have executed, sealed and delivered this
Agreement as of the date first written above.
Cemex, S.A. de C.V.
By: /s/Ing. Armando J. Garcia Segovia
Title: Director of General Development
F.L. SMIDTH & Co. A/S.
By: /s/Richart Fangel
Title: Attorney in fact
Fabricacion de Maquinaria Pesada, S.A. de C.V.
By: /s/Ing. Roberto Herrera Ritte
Title: Apoderado
Braden Manufacturing, L.L.C.
By: /s/Jack Silver
Title: Vice President of Administration
Braden Manufacturing, S.A. de C.V.
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By: /s/Jack Silver
Title: Attorney in Fact
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