Exhibit 10.22
Execution Copy
INVENTORY PURCHASE AGREEMENT
This INVENTORY PURCHASE AGREEMENT (this "Agreement"), dated as
of December 14, 2004, is entered into by and between Niples del Norte S.A.
de C.V., a Mexican sociedad anonima de capital variable (the "Seller"), and
▇▇▇▇▇▇▇ de Mexico S.A. de C.V., a Mexican sociedad anonima de capital
variable (the "Buyer").
R E C I T A L S :
WHEREAS, the Seller desires to sell to the Buyer and the Buyer
desires to purchase from the Seller certain inventory upon the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing premises and
the mutual representations, warranties, covenants and agreements herein
contained, the Buyer and the Seller hereby agree as follows:
SECTION 1. Definitions. Capitalized terms used in this
Agreement and not otherwise defined herein shall have the meaning ascribed
to them in the Securities Purchase Agreement, dated as of the date hereof,
by and among ▇▇▇▇▇▇▇ Comercial de Mexico, S. de ▇.▇. de C.V. and the other
parties thereto.
SECTION 2. Sale of Inventory. Subject to the terms and
conditions set forth in this Agreement and in reliance upon the Seller's
representations and warranties set forth below, on the date hereof, the
Seller shall sell to the Buyer, and the Buyer shall purchase from the
Seller, all the raw material, work-in-process and finished goods inventory
described on Exhibit A (the "Inventory"), for eleven million one hundred
sixty one thousand one hundred thirty dollars ($11,161,130), plus applicable
Mexican Value Added Tax (the "Purchase Price"). Payment of the Purchase
Price by the Buyer to the Seller shall be made on the date hereof in cash by
wire transfer of immediately available funds to such account as the Seller
shall specify. The Seller hereby assigns to the Buyer all rights (including
litigation rights) which it may have in connection with or related to the
Inventory.
SECTION 3. Representations and Warranties of the Seller. The
Seller hereby represents and warrants to the Buyer as follows:
(a) Corporate Organization. The Seller is a corporation duly
organized, validly existing and in good standing under the laws of Mexico
and has all requisite corporate power and authority to own its properties
and assets and to conduct its businesses as now conducted.
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(b) Authorization and Validity of Agreement. The Seller has
the requisite power and authority to enter into this Agreement and to carry
out its obligations hereunder. The execution and delivery of this Agreement
by the Seller and the performance by the Seller of its obligations hereunder
have been duly authorized by all necessary corporate action of the Seller
and no other corporate proceedings on the part of the Seller are necessary
to authorize such execution, delivery and performance. This Agreement has
been duly executed and delivered by the Seller and constitutes the Seller's
valid and binding obligation, enforceable against the Seller in accordance
with its terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium and other laws of general
applicability relating to or affecting creditors' rights or by general
principles of equity.
(c) No Conflict or Violation. The execution, delivery and
performance by the Seller of this Agreement do not and will not violate or
conflict with any provision of the Certificate of Incorporation or By-laws
(or equivalent documents) of the Seller, and do not and will not violate any
provision of law, or any order, judgment or decree of any court or
Governmental Entity, nor violate nor will result in a breach of or
constitute (with due notice or lapse of time or both) a default under any
contract, lease, loan agreement, mortgage, security agreement, trust
indenture or other agreement or instrument to which the Seller is a party or
by which it is bound or by which any of its properties or assets is subject.
(d) Consents and Approvals. Schedule 3(d) sets forth a true
and complete list of each consent, waiver, authorization or approval of any
Governmental Entity, or of any other Person, and each declaration to or
filing or registration with any such Governmental Entity, that is required
in connection with the execution and delivery of this Agreement by the
Seller or the performance by the Seller of its obligations hereunder. All
such consents, waivers, authorizations and approvals have been obtained and
all such declarations and filings have been made.
(e) Ownership by the Seller. The Inventory constitutes all of
the raw material, work-in-process or finished goods inventory owned by the
Seller or any of its subsidiaries. The Seller has good and marketable title
to the Inventory it is selling pursuant to this Agreement, free and clear of
any Lien. Except as set forth in Schedule 3(e), (i) all the Inventory is of
good and merchantable quality, free from defects and can be sold at
customary margins in the ordinary course of business, (ii) none of the
Inventory is obsolete, slow moving, damaged or consists of goods returned or
rejected by the Seller's customers. For purposes of this Agreement, "slow
moving" Inventory shall mean any items of Inventory for which the Seller has
more than four months supply in the preceding twelve months.
(f) Location of Inventory. None of the Inventory is stored
with a bailee, warehouseman or similar party and all the Inventory is
located at the locations identified on Schedule 3(f).
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(g) Litigation. Except as set forth on Schedule 3(g), there
are no claims, actions, suits, proceedings, labor disputes or investigations
pending, or, to the best knowledge of the Seller, threatened before any
national, state, or local court or Governmental Entity, or before any
arbitrator of any nature brought by or against the Seller or any of its
officers, directors, employees, agents or Affiliates involving, affecting or
relating to the Seller, its assets, properties or rights or the transactions
contemplated by this Agreement, nor is any basis known to the Seller for any
such action, suit, proceeding or investigation. Schedule 3(g) sets forth a
list and a summary description of all such pending actions, suits,
proceedings, disputes or investigations.
SECTION 4. Representations and Warranties of the Buyer. The
Buyer hereby represents and warrants to the Seller as follows:
(a) Corporate Organization. The Buyer is a corporation duly
organized, validly existing and in good standing under the laws of Mexico
and has all requisite power and authority to own its properties and assets
and to conduct its businesses as now conducted.
(b) Authorization and Validity of Agreement. The Buyer has
all requisite corporate power and authority to enter into this Agreement and
to carry out its obligations hereunder. The execution and delivery of this
Agreement by the Buyer and the performance by the Buyer of its obligations
hereunder have been duly authorized by all necessary corporate action by the
Board of Directors of the Buyer and no other corporate proceedings on the
part of the Buyer are necessary to authorize such execution, delivery and
performance. This Agreement has been duly executed and delivered by the
Buyer and constitutes the Buyer's valid and binding obligation, enforceable
against the Buyer in accordance with its terms, except as enforceability may
be limited by bankruptcy, insolvency, reorganization, moratorium and other
laws of general applicability relating to or affecting creditors' rights or
by general principals of equity.
(c) No Conflict or Violation. The execution, delivery and
performance by the Buyer of this Agreement do not and will not violate or
conflict with any provision of the Certificate of Incorporation or By-laws
of the Buyer, and do not and will not violate any provision of law, or any
order, judgment or decree of any court or Governmental Entity, nor violate
nor will result in a breach of or constitute (with due notice or lapse of
time or both) a default under any contract, lease, loan agreement, mortgage,
security agreement, trust indenture or other agreement or instrument to
which the Buyer is a party or by which it is bound or by which any of its
properties or assets is subject.
SECTION 5. Covenants of the Parties. Each party covenants and
agrees that it will do, execute and deliver, will cause to be done, executed
and delivered, all such further acts, transfers, assignments, conveyances,
and assurances requested by the other party, from time to time, for the
better assuring, conveying and confirming unto the Buyer of the entire
right, title and interest of the Seller in the Inventory purchased
hereunder.
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SECTION 6. Miscellaneous.
(a) Governing Law; Jurisdiction.
(i) This Agreement shall be construed in accordance with
and governed by the laws of the State of New York, provided, however,
that, in connection with any legal action or proceeding (other than an
action to enforce a judgment obtained in another jurisdiction) brought
in respect to this Agreement in the courts of Mexico or any political
subdivision thereof, this Agreement shall be deemed to be an
instrument made under the laws of Mexico and for such purposes shall
be governed by, and construed in accordance with, the laws of the
Federal District of Mexico.
(ii) Each party hereto hereby irrevocably and
unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of the Supreme Court of the State of New
York sitting in New York County and of the United States District
Court of the Southern District of New York, and any appellate court
thereof, in any action or proceeding arising out of or relating to
this Agreement, or for recognition or enforcement of any judgment, and
each party hereto hereby irrevocably and unconditionally agrees that
all claims in respect of any such action or proceeding may be heard
and determined in such New York State or in such Federal court. Each
party hereto agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other
jurisdictions (including Mexico) by suit on the judgment or in any
other manner provided by law. Nothing in this Agreement shall affect
any right that the Buyer may otherwise have to bring any action or
proceeding relating to this Agreement against the Seller or its
properties in the courts of any jurisdiction.
(iii) Without limiting the provisions of paragraph (ii) of
this Section 6(a), each party hereto hereby irrevocably and
unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of the competent courts of Mexico City,
Federal District, Mexico, and any appellate court from any thereof, in
any action or proceeding arising out of or relating to this Agreement,
or for recognition or enforcement of any judgment, and each party
hereto hereby irrevocably and unconditionally agrees that all claims
in respect of any such action or proceeding may be heard and
determined in any such courts. Each party hereto hereby waives any
rights to a specific jurisdiction it may have by virtue of its present
or any future domicile, or otherwise.
(iv) Each party hereto hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and
effectively do so, any objection which it may now or hereafter have to
the laying of venue of any suit, action or proceeding arising out of
or relating to this Agreement in any court referred to in paragraph
(ii) or (iii) of this Section 6(a). Each party hereto hereby
irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
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(v) Each party hereby agrees that service of all writs,
process and summonses in any such suit, action or proceeding brought
in the State of New York may be made upon CT Corporation System,
presently located at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
▇.▇.▇. (the "Process Agent"), and each party hereby confirms and
agrees that the Process Agent has been duly and irrevocably appointed
as its agent and true and lawful attorney-in-fact in its name, place
and stead to accept such service of any and all such writs, process
and summonses, and agrees that the failure of the Process Agent to
give any notice of any such service of process to such party shall not
impair or affect the validity of such service or of any judgment based
thereon. Each party to this Agreement further irrevocably consents to
service of process in the manner provided for written notices in
Section 6(c). Nothing in this Agreement will affect the right of any
party to this Agreement to serve process in any other manner permitted
by law.
(b) Paragraph and Section Headings. The headings of the
sections and subsections of this Agreement are inserted for convenience only
and shall not be deemed to constitute a part thereof.
(c) Notices. All notices, requests, demands and other
communications under this Agreement shall be in writing and shall be deemed
to have been duly given (i) on the date of service if served personally on
the party to whom notice is to be given; (ii) on the day of transmission if
sent via facsimile transmission to the facsimile number given below, and
telephonic confirmation of receipt is obtained promptly after completion of
transmission; (iii) on the second Business Day after delivery to Federal
Express or similar overnight courier; or (iv) on the day of receipt, if
mailed to the party to whom notice is to be given, by first class mail,
registered or certified, postage prepaid and properly addressed, to the
party as follows:
If to the Seller:
▇▇▇▇ ▇▇▇▇▇▇▇ Cirano
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇.
▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Copy to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
and
Deloitte ▇▇▇▇▇, Yamazaki
▇▇▇▇ ▇▇▇▇▇▇▇, S.C.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 2321 Pte., PB
Residencial San ▇▇▇▇▇▇▇
66260 ▇▇▇▇▇ ▇▇▇▇▇▇, N.L.
Mexico
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy: ▇▇ (▇▇) ▇▇▇▇ ▇▇▇▇
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If to the Buyer:
▇▇▇▇▇▇▇ de Mexico, S.A. de C.V.
c/o Mueller Industries, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: General Counsel
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Copy to:
▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Any party may change its address for the purpose of this Section by
giving the other party written notice of its new address in the manner
set forth above.
(d) Expenses. Each party shall pay its own fees and expenses
incurred in connection with the transactions contemplated hereby.
(e) Successors and Assigns. Except as otherwise provided in
this Agreement, no party hereto shall assign this Agreement or any rights or
obligations hereunder without the prior written consent of the other party
hereto and any such attempted assignment without such prior written consent
shall be void and of no force and effect. This Agreement shall inure to the
benefit of and shall be binding upon the successors and permitted assigns of
the parties hereto.
(f) Entire Agreement. This Agreement and the other
Transaction Documents contains the entire understanding between the parties
hereto with respect to the transactions contemplated hereby and supersedes
and replaces all prior and contemporaneous agreements and understandings,
oral or written, with regard to such transactions. Any exhibit or schedule
hereto and any documents and instruments delivered pursuant to any provision
hereof are expressly made a part of this Agreement as fully as though
completely set forth herein.
(g) Amendments; Waivers. This Agreement may be amended or
modified, and any of the terms, covenants, representations, warranties or
conditions hereof may be waived, only by a written instrument executed by
the parties hereto, or in the case of a waiver, by the party waiving
compliance. Any waiver by either party of any condition, or of the breach
of any provision, term, covenant, representation or warranty contained in
this Agreement, in any one or more instances, shall not be deemed to be nor
construed as a further or continuing waiver of any such condition, or of the
breach of any other provision, term, covenant, representation or warranty of
this Agreement.
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(h) Severability. In the event that any part of this
Agreement is declared by any court or other judicial or administrative body
to be null, void or unenforceable, said provision shall survive to the
extent it is not so declared, and all of the other provisions of this
Agreement shall remain in full force and effect.
(i) Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original and all of
which together shall be considered one and the same agreement.
NIPLES DEL NORTE S.A. DE C.V.
By:/s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title:
▇▇▇▇▇▇▇ DE MEXICO S.A. DE C.V.
By:/s/▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: President
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