EXHIBIT 2.10
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NOTEHOLDER SECURITY AGREEMENT
MADE BY
CONSTRUCTORA INTERNACIONAL DE INFRAESTRUCTURA, S.A. DE C.V.
AS ISSUER
TO
CITIBANK, N.A.,
AS NOTE TRUSTEE
DATED AS OF FEBRUARY 26, 2004
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TABLE OF CONTENTS
Page
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SECTION 1. Definitions; Rules of Construction.......................... 1
SECTION 2. Pledge and Grant of Security................................ 1
SECTION 3. Security for Obligations.................................... 2
SECTION 4. Continuing Security Interest; Release....................... 2
SECTION 5. Representations and Warranties.............................. 2
SECTION 6. Further Assurances.......................................... 3
SECTION 7. Filing of Financing Statements; Chief Executive Office...... 3
SECTION 8. Note Trustee Appointed Attorney-in-Fact..................... 4
SECTION 9. The Note Trustee's Duties................................... 4
SECTION 10. Remedies and Waivers........................................ 4
SECTION 11. Amendments; Etc............................................. 6
SECTION 12. Notices..................................................... 6
SECTION 13. Severability................................................ 6
SECTION 14. Reinstatement............................................... 6
SECTION 15. GOVERNING LAW............................................... 6
SECTION 16. WAIVER OF JURY TRIAL........................................ 6
SECTION 17. Submission to Jurisdiction.................................. 7
SECTION 18. Execution in Counterparts................................... 7
SECTION 19. Headings.................................................... 8
SECTION 20. Successors and Assigns...................................... 8
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SECURITY AGREEMENT, dated as of February ___, 2004 (this
"Agreement"), made by CONSTRUCTORA INTERNACIONAL DE INFRAESTRUCTURA, S.A. DE
C.V., a sociedad anonima de capital variable organized under the laws of Mexico
(the "Issuer"), to CITIBANK, N.A., as Note Trustee (together with its successors
in such capacity, the "Note Trustee") on behalf of, and for the benefit of, the
Holders (as defined in the Indenture referred to below).
PRELIMINARY STATEMENTS
1. The Issuer has entered into a Note Indenture, dated as of
February __, 2004 (as the same may be amended, supplemented or otherwise
modified from time to time, the "Indenture"), with Citibank, N.A., as Note
Trustee. Pursuant to the Indenture, the Noteholder Depositary Bank (as defined
in the Indenture), at the request of the Note Trustee, is to establish certain
securities accounts, each of which shall be pledged to the Note Trustee for the
benefit of the Holders (as defined in the Indenture) to secure the due and
punctual payment of the interest and other obligations of the Issuer to the
Holders and the Note Trustee under the Indenture.
2. Pursuant to the Indenture, the Note Trustee has been appointed
as trustee for the Holders with the authority to act on behalf of the Holders.
NOW, THEREFORE, in consideration of the foregoing and in order to
induce the Note Trustee to enter into the Indenture, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and further acknowledging that the Holders intend to rely on the
undertakings of the Issuer hereunder, the parties hereto agree as follows:
SECTION 1. Definitions; Rules of Construction. Capitalized terms not
otherwise defined herein shall have the meanings set forth in the Indenture, or
if not defined herein or therein, the Common Agreement (as defined in the
Indenture). Further, unless otherwise defined herein, in the Indenture or the
Common Agreement, terms used in Article 8 or Article 9 of the Uniform Commercial
Code in effect in the State of New York (the "UCC") are used herein as therein
defined. The principles of construction set forth in Sections 1.02 and 1.03 of
the Common Agreement are incorporated herein by reference, mutatis mutandis, as
if fully set forth herein.
SECTION 2. Pledge and Grant of Security. The Issuer hereby pledges
to the Note Trustee for the benefit of the Holders, and hereby grants to the
Note Trustee for the benefit of the Holders, a security interest in, and lien
on, all of the Issuer's present and future right, title and interest in and to
(a) the Note Interest Account, the Note Proceeds Account and the Note Prepayment
Account (including all sub-accounts thereof), (b) all cash, cash equivalents,
securities, investments, financial assets, Security Entitlements (as defined in
the Noteholder Depositary Agreement), payments, other amounts, and all other
items of property from time to time held, maintained or carried in, or credited
or deposited in, any of the Noteholder Accounts, including Permitted
Investments, (c) all rights, claims and causes of action, if any, that the
Issuer may have against any Person in respect of the foregoing and (d) all
proceeds of any or all of the foregoing (the property described in this Section
2, the "Note Collateral").
SECTION 3. Security for Obligations.
(a) This Agreement secures the prompt and complete payment and
performance of all the Obligations of the Issuer to the Holders and the Note
Trustee. Without limiting the generality of the foregoing, this Agreement also
secures the payment of all amounts that constitute part of the Obligations and
would be owed by the Issuer to the Holders and the Note Trustee but for the fact
that they are unenforceable or not allowable due to the existence of a
bankruptcy, reorganization or similar proceeding involving the Issuer.
(b) Notwithstanding anything to the contrary contained herein,
execution of this Agreement shall not diminish the Note Trustee's or the
Holders' rights as Secured Parties under the Security Agreement dated the date
hereof between the Issuer and the Collateral Agent.
SECTION 4. Continuing Security Interest; Release.
(a) This Agreement shall create a continuing security interest in
the Note Collateral and shall remain in full force and effect until the
indefeasible payment and performance in full of the Obligations of the Issuer to
the Holders and the Note Trustee.
(b) The Issuer agrees that this Agreement, the security interest
granted pursuant to this Agreement and all rights, remedies, powers and
privileges provided to the Note Trustee under this Agreement are in addition to,
and not in any way affected or limited by, any other security now or at any time
held by the Note Trustee to secure payment and performance of the Obligations of
the Issuer to the Holders and the Note Trustee.
SECTION 5. Representations and Warranties. The Issuer represents and
warrants as follows (such representations and warranties being made as of the
date hereof):
(a) The Issuer's exact legal name is Constructora Internacional de
Infraestructura, S.A. de C.V.
(b) The chief executive office of the Issuer is located at the
Issuer's address specified on the signature pages hereto.
(c) No effective financing statement or other instrument similar
in effect covering all or any part of the Note Collateral is on file in
any recording office.
(d) The terms of the Noteholder Depositary Agreement are
sufficient to perfect the security interest in the Note Collateral pledged
by the Issuer hereunder, and such security interest, as so perfected, has
first priority.
(e) The Issuer has no legal or equitable interest in or control
over the Note Collateral.
(f) The Note Collateral would not be part of the Issuer's estate
under Section 541 of the Bankruptcy Code.
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(g) The proceeds of the Note Collateral made available to the
Issuer from time to time by the Noteholder Depositary Bank, acting at the
written direction of the Note Trustee pursuant to this Agreement, the
Noteholder Depositary Agreement and the Note Indenture (other than amounts
transferred by the Noteholder Depositary Bank to the Offshore Depositary
Bank pursuant to Section 2.2(a) of the Noteholder Depositary Agreement),
shall constitute an extension of credit from the Holders to the Issuer.
Any amounts credited from time to time to the Note Prepayment Account may
only be transferred to the Note Trustee and the Holders and, until all of
the Obligations from the Issuer to the Holders and the Note Trustee have
been indefeasibly paid in full, any amounts on deposit in the Note
Interest Account may only be transferred to the Note Trustee and the
Holders, in accordance with the Financing Documents.
SECTION 6. Further Assurances.
(a) The Issuer agrees that from time to time, at the expense of
the Issuer, the Issuer shall promptly execute and deliver all further
instruments and documents, and take all further action, that may be necessary or
desirable, or that the Note Trustee may reasonably request, in order to perfect
and protect any pledge, assignment or security interest granted or purported to
be granted hereby or to enable the Note Trustee to exercise and enforce its
rights and remedies hereunder with respect to the Note Collateral. Without
limiting the generality of the foregoing, the Issuer shall execute and file such
financing or continuation statements, or amendments thereto, and such other
instruments or notices, with a copy thereof to the Note Trustee, as may be
necessary or desirable, or as the Note Trustee may reasonably request, in order
to perfect and preserve the pledge, assignment and security interest granted or
purported to be granted hereby.
(b) The Issuer shall, if any Note Collateral shall be evidenced at
any time by a promissory note or other instrument or chattel paper, deliver and
pledge to the Note Trustee hereunder such note, instrument or chattel paper duly
indorsed and accompanied by duly executed instruments of transfer or assignment,
all in form and substance satisfactory to the Note Trustee.
(c) The Issuer shall furnish to the Note Trustee from time to time
statements and schedules further identifying and describing the Note Collateral
and such other reports in connection with the Note Collateral as the Note
Trustee may request, all in reasonable detail.
SECTION 7. Filing of Financing Statements; Chief Executive Office.
(a) The Issuer hereby authorizes the Note Trustee to cause the
filing of one or more financing or continuation statements, and amendments
thereto, relating to all or any part of the Note Collateral without the
signature of the Issuer where permitted by Law. A photocopy or other
reproduction of this Agreement or any security agreement or financing statement
covering the Note Collateral or any part thereof shall be sufficient as a
financing statement where permitted by law; provided however, that nothing
contained herein shall be construed to relieve the Issuer from its duty to
maintain perfected a first priority security interest in the Collateral.
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(b) The Issuer shall keep its chief executive office at the
location therefor specified in Section 5(b) hereof or, upon thirty calendar
days' prior written notice to the Note Trustee, at such other location where all
action required to protect, preserve and maintain the lien and security interest
created hereby and the priority thereof shall have been taken with respect to
the Note Collateral.
SECTION 8. Note Trustee Appointed Attorney-in-Fact.
(a) The Issuer hereby appoints the Note Trustee as the Issuer's
attorney-in-fact, with full authority in the place and stead of the Issuer and
in the name of the Issuer or otherwise, from time to time in the Note Trustee's
discretion at any time that an Event of Default shall have occurred and be
continuing, to take any action and to execute any instrument which the Note
Trustee may deem necessary or advisable to accomplish the purposes of this
Agreement. Such appointment is coupled with an interest and is irrevocable.
(b) Anything herein contained to the contrary notwithstanding,
neither the Note Trustee, nor any Secured Party, nor any of their respective
nominees or assignees shall have any obligation or liability by reason of, or
arising out of, this Agreement to make any inquiry as to the nature or
sufficiency of, to present or file any claim with respect to, or to take any
action to collect or enforce the payment of, any amounts to which they may be
entitled at any time or times by virtue of this Agreement or exercise any powers
granted or conferred to them hereunder.
SECTION 9. The Note Trustee's Duties. The powers conferred on the
Note Trustee hereunder are solely to protect its interest in the Note Collateral
and shall not impose any duty upon it to exercise any such powers. Except as
otherwise set forth in the Indenture and for the safe custody of any Note
Collateral in its possession and the accounting for moneys actually received by
it hereunder and as otherwise required by law, the Note Trustee shall have no
duty as to any Note Collateral or as to the taking of any necessary steps to
preserve rights against prior parties or any other rights pertaining to any Note
Collateral and no such duties shall be implied as arising hereunder. The Note
Trustee shall be deemed to have exercised reasonable care in the custody and
preservation of any Note Collateral in its possession if such Note Collateral is
accorded treatment substantially equal to that which it accords its own property
and no such duties shall be implied as arising hereunder.
SECTION 10. Remedies and Waivers.
(a) If an Event of Default shall have occurred and be continuing:
(i) Subject to the Intercreditor Agreement and the Common
Agreement, the Note Trustee may exercise in respect of the Note
Collateral, in addition to other rights and remedies provided for herein
or under the Financing Documents or otherwise available to it, all the
rights and remedies of a secured party under the UCC.
(ii) Subject to the Common Agreement and the Intercreditor
Agreement, any cash held by the Note Trustee as Note Collateral and all
cash proceeds received by the Note Trustee in respect of any sale of,
collection from, or other realization upon, all or any part of the Note
Collateral may, in the discretion of the Note Trustee, be held by the
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Note Trustee as collateral for, and/or then or at any time thereafter be
applied in whole or in part by the Note Trustee for the benefit of the
Issuer and the Note Trustee against all, or any part of, the Obligations
of the Issuer to the Holders and the Note Trustee that are then due and
owing in accordance with the terms of the Indenture and the other
Financing Documents.
(iii) The Note Trustee may exercise all other rights and remedies
permitted by law or in equity.
(b) The Issuer hereby waives presentment, demand, protest,
advertisement or any notice (to the extent permitted by Law) of any kind in
connection with this Agreement or the Note Collateral or the exercise by the
Note Trustee of any right or remedy hereunder or in respect thereof.
(c) THE ISSUER HEREBY WAIVES, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, NOTICE AND JUDICIAL HEARING IN CONNECTION WITH THE NOTE
TRUSTEE'S DISPOSITION OF ANY OF THE NOTE COLLATERAL, INCLUDING, WITHOUT
LIMITATION, ANY AND ALL PRIOR NOTICE AND HEARING FOR ANY PREJUDGMENT REMEDY OR
REMEDIES AND ANY SUCH RIGHT WHICH THE ISSUER WOULD OTHERWISE HAVE UNDER THE
CONSTITUTION OR ANY STATUTE OF THE UNITED STATES OR OF ANY STATE.
(d) The Issuer hereby further waives, to the extent permitted by
law, and releases the Note Trustee from:
(i) all claims, damages and demands against the Note Trustee
arising out of the repossession, retention or sale of all or any part of
the Note Collateral, except any damages that are the direct result of the
Note Trustee's gross negligence or willful misconduct;
(ii) all claims, damages and demands against the Note Trustee
arising by reason of the fact that the price at which the Note Collateral,
or any part thereof, may have been sold at a private sale was less than
the price that might have been obtained at public sale or was less than
the aggregate amount of the Obligations owing from the Issuer to the
Holders and the Note Trustee, even if the Note Trustee accepts the first
offer received that the Note Trustee in good faith deems to be
commercially reasonable under the circumstances and does not offer the
Note Collateral, or any portion thereof, to more than one offeree;
(iii) all other requirements as to the time, place and terms of sale
or other requirements with respect to the enforcement of the Note
Trustee's rights hereunder; and
(iv) all equities or rights of redemption, appraisal, valuation,
stay, extension or moratorium now or hereafter in force under any Law in
order to prevent or delay the enforcement of this Agreement or the
absolute sale or other disposition of the Note Collateral or any portion
thereof, and the Issuer, for itself and all who may claim under it,
insofar as it or they now or hereafter lawfully may, hereby waives the
benefit of all such Laws.
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(e) To the extent permitted by Law, any sale of, or the grant of
options to purchase, or any other realization upon, any Note Collateral shall
operate to divest all right, title, interest, claim and demand, either at law or
in equity, of the Issuer therein and thereto, and shall be a perpetual bar both
at law and in equity against the Issuer and against any and all Persons claiming
or attempting to claim the Note Collateral so sold, option or realized upon, or
any part thereof, from, through and under the Issuer.
SECTION 11. Amendments; Etc. No amendment or waiver of any provision
of this Agreement, and no consent to any departure by the Issuer herefrom, shall
in any event be effective unless the same shall be in writing and signed by the
Issuer and the Note Trustee, and then such waiver or consent shall be effective
only in the specific instances and for the specific purpose for which given. No
delay on the part of the Note Trustee or any Holder in the exercise of any
right, power or remedy shall operate as a waiver thereof, nor shall any single
or partial waiver by the Note Trustee or any Holder of any right, power or
remedy preclude any further exercise thereof, or the exercise of any other
right, power or remedy. The remedies herein provided are cumulative, and not
exclusive of, any remedies provided by law.
SECTION 12. Notices. All notices and other communications hereunder
shall be given in the manner set forth in the Indenture.
SECTION 13. Severability. Any provision hereof that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof and without affecting the validity or enforceability
of any provision in any other jurisdiction.
SECTION 14. Reinstatement. This Agreement shall continue to be
effective or be reinstated, as the case may be, if at any time any amount
received by the Note Trustee in respect of the Obligations from the Issuer to
the Holders and the Note Trustee is rescinded or must otherwise be restored or
returned by the Note Trustee upon the insolvency, bankruptcy, dissolution,
liquidation or reorganization of the Issuer or upon the appointment of any
intervenor or conservator of, or trustee or similar official for, the Issuer or
any substantial part of its assets, or otherwise, all as though such payments
had not been made.
SECTION 15. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING
EFFECT TO THE CONFLICT OF LAW PRINCIPLES THEREOF, EXCEPT TO THE EXTENT THAT THE
VALIDITY OR PERFECTION OF THE SECURITY INTEREST HEREUNDER, OR REMEDIES
HEREUNDER, IN RESPECT OF ANY PARTICULAR COLLATERAL ARE GOVERNED BY THE LAWS OF A
JURISDICTION OTHER THAN THE STATE OF NEW YORK.
SECTION 16. WAIVER OF JURY TRIAL. THE ISSUER AND BY ITS ACCEPTANCE
HEREOF, THE NOTE TRUSTEE, HEREBY IRREVOCABLY WAIVE ALL RIGHT TO TRIAL BY JURY IN
ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY OTHER INSTRUMENT OR DOCUMENT DELIVERED HEREUNDER.
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SECTION 17. Submission to Jurisdiction.
(a) Each of the parties hereto hereby (i) expressly and
irrevocably submits and consents to the jurisdiction of any State or Federal
court located in the Borough of Manhattan, and any appellate court having
jurisdiction over appeals from any of such courts, in any action to resolve any
controversy or claim arising out of this Agreement, (ii) agrees that all claims
in such action may be decided in any such court, (iii) irrevocably waives, to
the fullest extent it may effectively do so, the defense of an inconvenient
forum, (iv) irrevocably and unconditionally waives, to the fullest extent it may
effectively do so, any objection that 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 such court, (v) to the extent the Issuer has or hereafter may
acquire any immunity (sovereignty or otherwise) from any legal action, suit or
proceeding, from jurisdiction of any court or from set-off or any legal process
(whether service or notice, attachment in aid or otherwise) with respect to
itself or any of its properties, the Issuer irrevocably waives and agrees not to
plead or claim such immunity in respect of its Obligations under this Agreement,
and (vi) consents to the service of process by registered or certified mail (or
any substantially similar form of mail), postage prepaid and return receipt
requested, or by personal service within or without the State of New York, at
the address for notices referred to in Section 12. A final judgment in any such
action shall be conclusive and may be enforced in other jurisdictions.
Furthermore, each party hereby submits to the competent courts of its corporate
domicile in any action or proceeding against it in connection with this
Agreement. Nothing herein shall affect the right of any party to bring legal
action or proceedings in any other competent jurisdiction.
(b) The Issuer hereby irrevocably appoints CT Corporation System
(the "Process Agent"), with an office on the date hereof at 111 Eighth Avenue,
New York, New York 10011, as its agent to receive on its behalf and on behalf of
its properties, service of process that may be served in any such action.
Service upon the Process Agent shall be deemed to be personal service on the
Issuer and shall be legal and binding upon the Issuer for all purposes
notwithstanding any failure to mail copies of such legal process to the Issuer,
or any failure on the part of the Issuer to receive the same. The Issuer agrees
that it shall at all times continuously maintain an agent to receive service of
process in the State of New York on behalf of itself and its properties, and, in
the event that for any reason the Process Agent shall not serve as agent for the
Issuer to receive service of process in the State of New York on its behalf, the
Issuer shall promptly appoint a successor satisfactory to the Note Trustee so to
serve, advise the Note Trustee thereof, and deliver to the Note Trustee evidence
in writing of the successor agent's acceptance of such appointment. Nothing
herein shall affect the right of any party to effect service of process in any
other manner permitted by applicable law.
(c) To the extent the Issuer may, in any action or proceeding
arising out of or relating to this Agreement brought in Mexico or elsewhere, be
entitled under applicable Law to require or claim that any Holder or the Note
Trustee post security for costs or take similar action, the Issuer hereby
irrevocably waives and agrees not to claim the benefit of such entitlement.
SECTION 18. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
instrument. Delivery of an executed counterpart of a signature page
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to this Agreement by telecopier shall be effective as delivery of an original
executed counterpart of this Agreement.
SECTION 19. Headings. The headings of the various articles, sections
and paragraphs of this Agreement are for convenience of reference only, do not
constitute a part hereof and shall not affect the meaning or construction of any
provision hereof.
SECTION 20. Successors and Assigns. This Agreement shall be binding
upon and inure solely to the benefit of, and be enforceable by, the parties
hereto and their respective successors and assigns; provided, that the Issuer
may not assign or otherwise transfer any of its rights under this Agreement
without the prior written consent of the Note Trustee (other than an assignment
to CFE permitted in accordance with Section 11.06 of the Common Agreement).
Without limiting the foregoing, if any Holder assigns or otherwise transfers all
or any portion of its rights in the Obligations to the extent and in the manner
provided in the Indenture, such assignee, as a Holder, shall thereupon become
vested with all the benefits in respect thereof granted to the Holders herein or
otherwise.
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IN WITNESS WHEREOF, the Issuer has caused this Agreement to be duly
executed and delivered by its officer thereunto duly authorized as of the date
first above written.
CONSTRUCTORA INTERNACIONAL DE
INFRAESTRUCTURA, S.A. DE C.V.
By:_____________________________________
Name:
Title:
Address:
Constructora Internacional de Infraestructura,
S.A. de C.V.
c/o Empresas ICA, Sociedad Controladora,
S.A. de C.V.
Mineria 145, Edificio D, 3 Piso
11800 Mexico, D.F., Mexico
Attention: Dr. Jose Luis Guerrero A.
Telephone: (5255) 5272-9991 ext. 2060
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Agreed and Accepted:
CITIBANK, N.A.,
not in its individual capacity,
but solely as Note Trustee
By:_____________________
Name:
Title:
By:_____________________
Name:
Title:
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