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to the undisputed intent of representatives of petitioner and of
Procesos. This fact and the requirements relating to the use of
the pesos reflect the transaction negotiated and bargained for by
the parties -- by petitioner, by Procesos, and by the Mexican
Government.
In the present case, where petitioner negotiated for a
principal amount of a recognized currency in order to invest that
currency in a specific project, we do not believe that the terms,
requirements, and limitations set forth in the final negotiated
agreement regarding use of the currency (which simply reflect and
conform to the original and continuing purpose and objective of
the transaction -- namely, to invest the currency in a specific
project) should be regarded as restricting or discounting the
fair market value of the currency that is then made available
under the agreement.
The restrictions relating to petitioner's and to Procesos'
access and use of the Mexican pesos and to certain class B stock
in Procesos were consistent with the overall purpose and
objective of each party to the transaction. They were consistent
with the business objectives of each party. In our judgment, as
we stated in our prior opinion, they were not significantly
different from restrictions commonly placed by financial
institutions on loan proceeds and on startup companies in
disbursing loan proceeds relating to construction loans or
project financing.
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Last modified: May 25, 2011