EXHIBIT 99.C
AGREEMENT TO PROVIDE SERVICES ENTERED INTO BY ______________________________
______________________________________________________________, HEREINAFTER
DESIGNATED THE "FUND," REPRESENTED BY_______________________________________
___________________________________________________, THE PARTY OF THE FIRST
PART, AND IMPULSORA DE FONDOS BANAMEX, S.A. DE C.V., AN INVESTMENT COMPANIES
OPERATING COMPANY, HEREINAFTER DESIGNATED THE "OPERATOR", REPRESENTED BY
______________________________________________, THE PARTY OF THE SECOND PART, IN
ACCORDANCE WITH THE FOLLOWING RECITALS AND ARTICLES:
R E C I T A L S
I. The Fund hereby states, through its legal agent:
a) That it is a SOCIEDAD ANONIMA [joint-stock company] lawfully organized and
existing under the laws of Mexico, permitted to operate as an investment company
in accordance with the terms of the Law on Investment Companies.
b) It states that it has resources of its own to carry out the activities
which are covenanted in this agreement, as they flow from its capacity as a
company investing in debt instruments.
c) That its attorneys have sufficient powers to enter into the present
agreement and that their powers have not been suspended, revoked, or limited in
any manner whatever.
II. The Operator hereby states, through its legal agent:
a) That it is a SOCIEDAD ANONIMA [joint-stock company] lawfully organized and
existing under the laws of Mexico, permitted to operate as an investment
companies operating company in accordance with the terms of the Law on
Investment Companies.
b) It states that it has resources of its own to carry out the activities
which are covenanted in this agreement, as the Operator of Investment Companies
and as the Affiliate of a Foreign Financial Entity, belonging to and controlled
by Grupo Financiero Banamex, S.A. de C.V.
c) That its attorney has sufficient powers to enter into the present agreement
and that his powers have not been suspended, limited or revoked, in any manner
whatever.
Pursuant to the foregoing recitals, the parties hereby agree to the terms of the
following
ARTICLES
FIRST. DEFINITIONS. The terms which are employed in this Agreement and which are
listed further below shall have the following meanings which are likewise,
applicable to either the singular or plural form of the said terms:
"Shares" means the shares of stock representing the capital stock of the Fund.
"Investment Assets" means the securities, certificates, and instruments to which
are applicable the provisions of the Securities Market Law and which are
recorded at the National Securities Registry or listed with the International
Listings System, other securities, cash resources, goods, rights and loans,
which are documented in agreements and instruments, including those having to do
with financial operations known as derivatives, and also all other things
forming the object of commerce which, in accordance with the investment system
provided for in the Law on Investment Companies and in the provisions of a
general nature enacted for the purpose by the Commission for each type of
investment company, are susceptible of forming an integral part of their net
worth.
"Management of Assets" means the services of management of Investment Assets
owned by the Fund and consisting of the performance of the following activities:
I. The performance of the Operations contemplated in Sections a), b), d),
and e) of the definition of Operations for and on behalf of the Fund,
and also, as the case may be, the management of the issuance of
securities representing a debt payable by the Fund for the
accomplishment of its purposes, and
II. The management of securities portfolios for the benefit of the Fund
and of third parties, in compliance with the provisions of the
Securities Market Law.
"Commission" means the COMISION NACIONAL BANCARIA Y DE VALORES [National Banking
and Securities Commission].
"Accounting" means the services of accounting records of the Fund, the keeping
of its accounting books, and the preparation and submission of its financial
statements, subject but not limited to the obligation to record on the
accounting books of the operations of the Fund in accordance with the list and
rules for grouping of accounts and standards which are established by the
Commission through provisions of a general character and pursuant to the
applicable legal provisions, by keeping the accounting records and systems of
the Fund up to date.
"Deposit" means the services of deposit of the Shares representing the capital
stock of the Fund, and also of the securities which make up its Investment
Assets.
"Business Days" means the days on which the Lending Institutions and the Stock
Exchanges are permitted to open and operate in accordance with the calendar that
for said purpose the Commission may yearly issue.
"Distribution" means the service consisting of the distribution of the Shares of
the Fund, including the promotion, advice to third parties, purchase and sale of
the said Shares for the account and by order of the Fund, and, as the case may
be, the generation of reports and consolidated balance sheets for investments
and other supplementary services authorized by the Commission through provisions
of a general nature.
"Operations" means the operations and only the operations which the Fund may
carry out pursuant to the provisions of the Law on Investment Companies and in
accordance with the provisions of a general nature that as may be issued by the
Commission or the Bank of Mexico, depending on their areas of jurisdiction, as
itemized below:
a) Purchase, sell or invest in Investment Assets in accordance with the
system by which the Fund is governed, pursuant to the type of company
under which it is organized;
b) Borrow and make loans on securities which are subject to the
Securities Market Law, with lending institutions or brokerages, with
the ability to act as borrower on securities, or as the case may be,
recipient or lender of a loan;
c) Acquire such Shares as it may issue;
d) Purchase or sell Shares representing the capital stock of other
investment companies, irrespective of the investment system governing
them;
e) Obtain loans and credit from credit institutions, non-banking
financial middlemen, and foreign financing entities;
f) Issue securities representing a debt payable by it, for the
accomplishment of its purposes; and
g) Such analogous or related operations as the Commission may authorize
through provisions of a general nature.
"Prospectus" means the prospectus of information to the investing public to
which reference is had in Article 9 of the Law on Investment Companies.
"Services" means the services which the Operator shall, pursuant to the terms of
the Law on Investment Companies and the other provisions which are issued in
implementation thereof, provide to the Fund, among which the following are
included:
a) Management of Investment Assets
b) Distribution of Assets
c) Deposit and Custody of Investment Assets and Shares of the Fund
d) Accounting of the Fund
e) Managers for the Fund
f) Valuation, subject to the approval of the Commission, and
g) Such others as the Commission may permit through provisions of a
general nature.
SECOND. PROVIDING OF SERVICES. The Fund entrusts the rendering of the Services
to the Operator, which is willing to provide them either itself or through a
subcontractor if the law so permits, pursuant to the terms and conditions set
out in the present Agreement, subject to the following provisions:
a) MANAGEMENT OF THE INVESTMENT ASSETS
i) The preparation of the statements of account shall be subject to
the provisions of Article 10 of the Law on Investment Companies,
and the relevant middleman contracts shall stipulate the
frequency and the means of communication to be used by it to
deliver them to the investors.
ii) The Operator shall at all times abide by the selection policies
and the investment limits determined by the Board of Directors of
the Fund to be the investment system, and shall at all times
observe the applicable legal and administrative provisions, and
also the terms set out in the Prospectus.
b) DISTRIBUTION OF SHARES
i) The Operator shall ask the Fund for shares from its treasury in
such quantities as may be necessary to satisfy the demand from
the investing public, and the Fund shall for its part adopt the
necessary measures as regards capital stock increases, so that
the Shares are available in a timely fashion.
ii) For the distribution, re-investment, and repurchase of the Shares
of the Fund, the Operator (a) shall conform its activities as
referred to in this agreement to such provisions of a general
nature as the National Banking and Securities Commission may
issue, and (b) shall see to it that the Shares of the Fund are
sufficiently diversified, provided that the amount for
subscription by investors conforms to the limits laid down by the
Board of Directors of the said Fund, and shall for the account of
the Fund implement such measures as may permit its shareholders
to have timely information available with respect to the
percentage of their shareholding.
iii) The purchase or selling price of the Shares of the Fund shall be
precisely the valuation price established by the Fund's valuation
entity, if any, with such differential as may be applied to the
said price pursuant to the terms of the legal provisions which
are applicable and in effect on the date on which a purchase or
sale operation takes place.
iv) The price of the Shares of the Fund as set out in the foregoing
paragraph shall be made known by the Operator every Business Day,
at the latest by 1:00 p.m. of the Business Day following that to
which the valuation corresponds, and the Operator shall effect
the purchases or sales in accordance with the price determined on
the Business Day prior to its concentration.
v) It is hereby expressly covenanted that the commissions, if any,
that are charged to investors shall be subject to the provisions
of a general nature issued for that purpose by the Commission.
vi) The Operator shall come to an agreement with the Fund concerning
the sales plans which it will promote and carry out for the
purpose of attracting investors; the said plans shall be subject
to the approval of the Commission.
c) DEPOSIT AND CUSTODY OF INVESTMENT ASSETS AND OF SHARES OF THE FUND
i) The securities, certificates, and instruments recorded at the
National Securities Registry which form part of the Investment
Assets of the Fund shall be deposited in an account kept for each
company at the S.D. Indeval, S.A. de C.V., or such entity as may
replace it.
ii) The same obligation shall be observed in the case of Shares of
the Fund, with prejudice to such custody services respecting the
said Shares as may be contracted for with third parties.
iii) In the case of Investment Assets which by their nature cannot be
deposited at any domestic or foreign institution for the deposit
of securities, they shall be kept on such terms as the Commission
may indicate by means of provisions of a general nature.
d) ACCOUNTING OF THE FUND
i) The Operator shall employ such accounting system as is
contemplated in the Code of Commerce and such ledgers and other
records as the Commission may order.
ii) The records which the said companies must keep shall conform to
the accounting standards established for such purpose by the said
Commission.
iii) The annual financial statements shall be examined by an
independent outside auditor who shall be appointed directly by
the Board of Directors of the Fund.
iv) The accounting books and records of the Fund shall be kept
available at the offices of the Operator.
e) MANAGERS FOR THE FUND
THIRD. MERCANTILE COMMISSION. For the purposes of the present Agreement, and on
the basis of Articles 273, 274, 285, and all other related articles of the Code
of Commerce, the Fund hereby grants to the Operator and it accepts a mercantile
commission for the Operator for and on behalf of the Fund (i) to carry out as
respects third parties all juristic acts deriving from the Management of the
Investment Assets of the Fund and the Distribution, Deposit, and, as the case
may be, custody of the Shares and of the Investment Assets; (ii) and also to
carry out any of the Operations, provided that the Operator may acquire for its
own account the Shares of the Fund without in any case going beyond the limits
permitted under the applicable legal provisions.
In consequence of this, the Operator will have every description of powers,
including but not limited to: (i) general power of attorney for lawsuits and
collections and acts of administration pursuant to the terms of the provisions
of the first two sections of Article 2554 of the Federal Civil Code, and (ii)
powers to subscribe credit instruments in accordance with the provisions of
Section I of Article 9th of the General Law on Securities and Credit Operations.
The said powers shall be exercised through such natural person or persons as the
Operator may appoint by power of attorney granted by the said Operator.
The Operator is hereby expressly empowered, subject to prior permission from the
Commission, to enter into co-distribution agreements for the Shares of the Fund
with other financial entities which have a suitable infrastructure for the
providing of the said Service. The Operator is further hereby expressly
empowered to share such necessary information as may be required for carrying
out the Services with any company which is a component, affiliate, or subsidiary
of Grupo Financiero Banamex, S.A. de C.V.
FOURTH. CONSIDERATION. The Fund shall within five (5) Business Days following
the close of each calendar month, pay to the Operator at its address for the
providing of the Services to which reference is had in the present Agreement
such fees as the parties may agree between them, taking as reference the net
assets, in accordance with the parameters set out in Exhibit A to the present
Agreement, pursuant to the provisions of the Securities Market Law, the Law on
Investment Companies, and such provisions of a general nature as may derive
from them. For the purpose of the provisions of the foregoing sentence, net
assets means all the Investment Assets owned by the Fund, less its
liabilities, plus the increased value of the portfolio or less its decreased
value, depending on the valuation that is determined by the company providing
valuation services to the Fund.
The consideration to which reference is had in this Article shall be received at
the address of the Operator within the first five business days of each month.
The Operator and the Fund agree that increases or decreases in the Consideration
provided for in the present Agreement shall first be approved by their
respective boards of directors, subject to the approval of the independent
directors, if any, and reported to the shareholders of the Fund before taking
effect, as provided for in the relevant Prospectus.
FIFTH. OBLIGATIONS OF THE OPERATOR. The Operator shall, as part of the
performance of its Services, be under the following obligations:
a) In the event that it carries out distribution activities, to deliver
to each investor the Prospectus of information for the investing
public, and also the amendments to it, by any of the methods permitted
by the Law on Investment Companies and at all times in compliance with
the applicable legal provisions.
b) To provide to the Commission such information and documents as the
Fund must provide and also such as is requested of it with respect to
its operations in the exercise of its oversight and supervisory
authority, and to carry out all legal and administrative measures for
the good operation of the Fund.
c) To carry out all instructions which are given to it by the Fund with
respect to the purchase and sale of the Investment Assets which make
up its portfolio.
d) To pay the costs which are listed in Exhibit B to the present
Agreement, provided that the Operator may charge the Fund for any
other cost deriving from its operation.
e) To display in a prominent place at its offices the report on the
Investment Assets making up the assets of the Fund, and also to make
it available in writing on the last Business Day of each week to such
investors as may request it, provided that this report shall be
brought up to date on the Business Day prior to the one in question.
f) To report daily to the Fund, by electronic means, the Operations which
it carries out under the present agreement.
g) It shall file a report on its handlings of things whenever the Fund
requests it to do so.
SIXTH. OBLIGATIONS OF THE FUND. The Fund shall be under obligation to:
a) Pay the Operator the Consideration which is provided for in the Fourth
Article of the present Agreement.
b) Pay all the costs which are listed in Exhibit A to the present
Agreement.
c) Provide all things necessary in order that the Operator be able to
provide the Services that are the object of this Agreement.
SEVENTH. EXERCISE OF CORPORATE AND PROPRIETARY RIGHTS. The Fund and the Operator
agree that:
a) The Fund shall exercise all the corporate rights which the ownership
of its Investment Assets confer upon it; however, if the Fund does not
itself desire to exercise such rights, the Operator shall exercise
them, subject to instructions in writing from the Fund. In this latter
event, the Operator shall cast the Fund's vote at shareholders
meetings which it attends as its proxy, pursuant to the instructions
and for or against as the said Fund indicates to it.
b) The Operator shall be charged with exercising the proprietary rights
inherent in the Investment Assets which make up the assets of the
Fund, and in the event that the exercise of these proprietary rights
entails disbursements, the Fund shall, five (5) Business Days in
advance, provide to the Operator the resources necessary for the
exercise of such rights; otherwise, compliance with the said
obligation shall not be mandatory for the Operator. The Operator shall
be responsible for any claim which results from the exercise of its
functions as a consequence of its own fraud or negligence.
EIGHTH. PERSONNEL OF THE OPERATOR. For the performance of the Distribution
services under this Agreement, the Operator shall use the services of
individuals authorized by the Commission to carry out with the public advisory
promotional, purchase, and sale operations regarding the Assets of investment
companies, and the Operator shall be under obligation to grant the said persons
such authority as is appropriate, provided that there shall not exist nor shall
there be deemed to exist any type of labor or subordinate relationship between
the Fund and the aforesaid persons.
NINTH. RESPONSIBILITIES OF THE OPERATOR. The Operator shall be under obligation
to pay the Fund back for any damages, if any, that are occasioned it as a result
of the incorrect providing of its Services, and shall also be answerable for
violations of any provisions of a general nature as the Commission may issue, if
the said violations are ascribable to the Operator.
Furthermore, the parties agree that any liability to third parties arising from
the Distribution of the Shares to which this agreement refers shall be the
Operator's;
therefore, the Operator agrees to be liable vis-a-vis the Fund for any claim
against the Fund based on the Operator's obligations in its capacity as
distributor, including those with respect to Shares of the Fund which it may
have sold, re-invested, or repurchased.
TENTH. CONFIDENTIALITY. The Operator and the Fund mutually undertake to keep
confidential and not to disclose to others, nor to use for the benefit of
themselves or third parties, any information which one of the parties may have
provided to the other, pursuant to the terms of Article 55 of the Law on
Investment Companies.
The term Confidential Information excludes: (i) All information which either of
the parties possessed prior to having received it from the other party; (ii) all
information which has been lawfully obtained from a third party which did not
have the obligation to keep it confidential; (iii) all information which is in
the public domain; (iv) all information which is developed independently by
either of the parties; (v) all information which is disclosed by one of the
parties to the other with written permission; and (vi) all information which is
required to be reported or disclosed to the judicial or administrative
authorities in compliance with any law, regulation, or decree applicable to the
disclosing party, or with an order, judgment, or award which is binding upon the
disclosing party.
Upon the termination of the Contract, the parties shall continue to be bound by
law not to disclose or use the Confidential Information.
ELEVENTH. CODE OF CONDUCT. On the date of execution of the present Agreement,
the Fund has delivered to the Operator its Code of Conduct applicable to
suppliers and the Operator has received it to its satisfaction and agrees to
comply with each and every one of its terms, with the present Agreement serving
as acknowledgment of receipt of the said Code for all pertinent legal purposes.
TWELFTH. TERM. The present Agreement has an indefinite duration; however, either
of the parties may terminate it without liability by communication in writing
addressed to the domicile of the other party thirty (30) days in advance.
THIRTEENTH. DOMICILE AND NOTICES. (a) Such notices as are given to the parties
for any matter having to do with the present Agreement shall be given in writing
at the following addresses:
The Fund: ▇▇. ▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇. ▇▇▇, ▇▇▇. Piso
Col. ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
The Operator: ▇▇. ▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇. ▇▇▇, ▇▇▇▇ ▇
Col. ▇▇▇▇▇▇
Mexico, D.F. 06600
(b) All notices required or permitted under this Agreement shall be given
in writing, in a credible form, addressed to the addresses listed above, unless
these are changed by means of notice given pursuant to the present Article or in
the event that the notices are given in accordance with the provisions of the
following sections.
(c) The parties agree that any notice, unless otherwise specially provided
in the present Agreement, shall be given in written form or by any other,
electronic, computer, or telecommunication means resulting from science and
technology accepted by the parties.
(d) Among the electronic means, the parties expressly recognize telefax and
e-mail. The parties may by agreement between them employ either of the aforesaid
means of communications without the necessity to satisfy special prerequisites.
FOURTEENTH. APPLICABLE LAWS AND JURISDICTION. For the purpose of interpretation
and performance of the present agreement, the parties make themselves subject to
the laws of the Mexican United States and to the courts of Mexico City, Federal
District, to whose jurisdiction they hereby expressly make themselves subject,
waiving any other jurisdiction of which they might otherwise avail themselves by
reason of their present or future domiciles.
The present Agreement has been executed in Mexico City, Federal District, on the
30th day of the month of January, 2003, in two copies, one of which remains in
the possession of each one of the parties.
THE "FUND"
------------------------------
THE "OPERATOR"
------------------------------