EXHIBIT 2.4
MEXICAN STOCK PLEDGE AGREEMENT
dated as of February 26, 2004
by and among
PROMOTORA E INVERSORA ADISA, S.A. DE C.V.,
LA PENINSULAR COMPANIA CONSTRUCTORA, S.A. DE C.V.
AND
INGENIEROS CIVILES ASOCIADOS, S.A. DE C.V.,
as Pledgors,
and
BANCO SANTANDER MEXICANO, S.A.
as Onshore Collateral Agent on behalf and for the benefit of the Secured Parties
as Pledgee
With the appearance of
CONSTRUCTORA INTERNACIONAL DE INFRAESTRUCTURA, S.A. DE C.V.
MEXICAN STOCK PLEDGE AGREEMENT (this "Agreement") dated as of February 26,
2004, entered into by and among PROMOTORA E INVERSORA ADISA, S.A. DE C.V., LA
PENINSULAR COMPANIA CONSTRUCTORA, S.A. DE C.V. and INGENIEROS CIVILES ASOCIADOS,
S.A. DE C.V. (the "Pledgors"), CONSTRUCTORA INTERNACIONAL DE INFRAESTRUCTURA,
S.A. DE C.V. (the "Company") and BANCO SANTANDER MEXICANO, S.A. as Onshore
Collateral Agent (including its successors, in such capacity, the "Pledgee") on
behalf and for the benefit of the Secured Parties in accordance with the
following Preliminary Statements, Representations and Clauses.
WITNESSETH:
WHEREAS, as a result of the International Public Bid (Licitacion Publica
Internacional) No. 18164093-011-02, the Company was awarded the construction,
equipment and commissioning of the hydroelectric project known as Proyecto
Hidroelectrico 63 CH El Cajon, at the Yesca and Santa Maria del Oro
Municipalities in the State of Nayarit, Mexico (the "Project"), pursuant to the
financed public works contract (Contrato Mixto de Obra Publica Financiada) dated
March 26, 2003, as clarified or amended from time to time, executed by the
Company and the Comision Federal de Electricidad.
WHEREAS, in connection with the Project, the Company entered into a Credit
Agreement dated as of March 31, 2003, with the lenders from time to time party
thereto and WestLB AG, New York Branch as administrative agent and collateral
agent (as amended from time to time, the "Interim Credit Agreement").
WHEREAS, on April 8, 2003, the Pledgors, the Company and WestLB AG, New
York Branch, as collateral agent under the Interim Credit Agreement, entered
into a Stock Pledge Agreement (the "Mexican Interim Stock Pledge") pursuant to
which the Pledgors pledged in favor of such collateral agent, acting solely on
behalf and for the benefit of the lenders under the Interim Credit Agreement,
the Shares owned by each of them and all rights arising out of such Shares to
secure the obligations of the Pledgors under the Interim Credit Agreement and
the agreements and documents related thereto.
WHEREAS, the Company desires to refinance the outstanding amounts under
the Interim Credit Agreement and to obtain additional funds to finance the
Project:
(i) the Company acting as Borrower, WestLB AG, New York Branch acting as
Intercreditor Agent and Facility Administrative Agent, Banco
Santander Central Hispano, S.A., New York Branch acting as Offshore
Collateral Agent, Banco Santander Mexicano, S.A. acting as Onshore
Collateral Agent, the banks and financial institutions parties
thereto, Citibank, N.A. acting as Note Trustee, and the other
Creditors and Creditor Representatives (each, as defined therein)
from time to time party thereto, entered into a Common
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Agreement dated as of February 26, 2004 (the "Common Agreement")
setting forth certain common representations and warranties,
covenants, conditions to funding, events of default and other terms
that are complementary to and form part of the Credit Agreement, the
Note Indenture and the Note Purchase Agreement;
(ii) the Company acting as Borrower, each of the banks and the other
financial institutions parties thereto acting as Lenders and WestLB
AG, New York Branch acting as Facility Administrative Agent, entered
into a Credit Agreement dated as of February 26, 2004 (the "Credit
Agreement") by means of which the Lenders have agreed to provide
financing in conjunction with the other Creditors in an amount up to
U.S.$629,400,000, for a construction facility and have agreed to
provide financing in an amount up to U.S.$53,000,000 for a
contingency facility for the Project, subject to and in accordance
with the terms and conditions of the Credit Agreement and the terms
and conditions of the Common Agreement; and
(iii) the Company entered into with Citibank, N.A. in its capacity as Note
Trustee, a Note Indenture dated as of February 26, 2004 (the "Note
Indenture") pursuant to which the Company will issue Investor Notes
to be sold pursuant to the Note Purchase Agreement.
REPRESENTATIONS AND WARRANTIES
Each of the Pledgors represents and warrants that:
(a) It is a corporation duly organized and existing under the laws of
Mexico, as evidenced by the public deeds, copies of which have been delivered to
the Pledgee prior to the execution date hereof.
(b) It is the legal and beneficial owner of the Shares set forth
opposite such Pledgor's name on Exhibit "A" hereto, which Shares are (i) free
and clear of any lien, security interest or other charge or encumbrance except
for the security interest created under the Mexican Interim Stock Pledge and
this Agreement; and (ii) are fully paid-in and non-assessable and, when taken
together with all the Shares listed on Exhibit "A" hereto, represent 100% of the
capital stock of the Company. There are no options, debentures, warrants or
other rights to any Shares granted to third parties.
(c) It is a condition precedent to the Closing Date, the initial Funding
and the issuance of the Investor Notes under the Common Agreement that this
Agreement shall have been duly executed and that the provisions of this
Agreement shall constitute a valid, direct, continuing Lien on the Shares only
subject to the Lien created pursuant to the Mexican Interim Stock Pledge.
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(d) Under the Common Agreement, the Pledgee has been appointed as
Onshore Collateral Agent to act on behalf of and for the benefit of the Secured
Parties with respect to the security interest to be created by the Pledgors,
inter alia, in the Pledged Collateral (as defined below).
(e) Considering that the collateral agent under the Mexican Interim
Stock Pledge has waived certain restrictions thereunder, the execution, delivery
and performance of this Agreement by each of the Pledgors and the security
interest created in the Pledged Collateral, do not and will not violate,
conflict with or result in a breach of or default under, its corporate by-laws,
any agreement, license, permit or other instrument to which it is a party or by
which it or its properties may be bound, or any order, rule, regulation,
injunction, decree, judgment, statute, law or ruling of any court,
administrative agency or governmental agency applicable to it or its properties.
The Pledgors do not need the consent or authorization of any person or entity to
enter into this Agreement, create the pledge and perform their respective
obligations hereunder, other than the authorization required under the Interim
Credit Agreement, which has been obtained.
(f) The execution hereof, the endorsement in guaranty of the
certificates evidencing the Shares in favor of the Pledgee, the delivery of such
certificates to the Pledgee and the notation of the pledge created hereunder in
the share registry (libro de registro de acciones) of the Company prior to the
termination of the pledge created under the Mexican Interim Stock Pledge will
constitute, perfect and establish a second priority security interest in the
Pledged Collateral in favor of the Pledgee, acting on behalf and for the benefit
of the Secured Parties, securing the Secured Obligations hereunder. Once the
pledge created under the Mexican Interim Stock Pledge has been terminated
through the cancellation of the relevant endorsement in the certificates
representing the Shares and the appropriate notation in the share registry of
the Company, the security interest created hereunder will constitute a first
priority security interest in the Pledged Collateral. No action other than those
contemplated in this Agreement is necessary or desirable to otherwise perfect or
protect such security interest.
(g) Its representative(s) executing this Agreement on its behalf, are
duly authorized to do so, as evidenced by the public deeds copies of which have
been delivered to the Pledgee prior to the execution date hereof. Such authority
has not been revoked or limited in any manner whatsoever.
NOW THEREFORE, in consideration of the premises and of the mutual
agreements herein contained and based upon the foregoing representations and
warranties, the parties hereto agree as follows:
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CLAUSE 1
DEFINITIONS
1.1 Definitions. Capitalized terms used in this Agreement and not
otherwise defined shall have the meanings given in the Common Agreement. The
following terms shall have the following meaning, provided that, in any case,
such meanings shall be applicable to the singular and plural forms of such
terms:
"Business Day" shall mean a day of the year on which banks are not
required or authorized to close in Mexico City, Mexico.
"Common Agreement" shall have the meaning given to such term in section
(i) of the fourth Whereas Clause hereof.
"Company" shall have the meaning given to such term in the Preamble of
this Agreement.
"Credit Agreement" shall have the meaning given to such term in section
(ii) of the fourth Whereas Clause hereof.
"Financing Documents" shall mean the agreements listed in the fourth
Whereas Clause hereof and any instrument or document issued thereunder or in
connection therewith.
"Interim Credit Agreement" shall have the meaning given to such term in
the second Whereas Clause hereof.
"Lenders" shall mean each of the banks and other financial institutions
party to the Common Agreement and their permitted assignees.
"LGTOC" shall mean the Mexican General Law of Negotiable Instruments and
Credit Transactions (Ley General de Titulos y Operaciones de Credito).
"Mexican Interim Stock Pledge" shall have the meaning given to such term
in the third Whereas Clause hereof.
"Mexico" shall mean the United Mexican States.
"Note Indenture" shall have the meaning given to such term in section
(iii) of the fourth Whereas Clause hereof.
"Noteholders" shall mean the holders from time to time of the Investor
Notes referred to in clause (iii) of the fourth Whereas Clause hereof.
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"Pledged Collateral" has the meaning specified in Clause 2.1 of this
Agreement.
"Pledgee" shall have the meaning given to such term in the Preamble of
this Agreement.
"Pledgors" shall have the meaning given to such term in the Preamble of
this Agreement.
"Project" shall have the meaning given to such term in the first Whereas
Clause of this Agreement.
"Secured Obligations" shall mean all payment obligations of the Company
arising now or hereafter under any of the Financing Documents, including but not
limited to the obligations to pay principal, ordinary, default or overdue
interest, fees, make-whole premium, indemnities, enforcement and other costs and
expenses or any other amount payable for any other concept thereunder.
"Secured Parties" shall mean any and all Lenders, the Facility
Administrative Agent, the Intercreditor Agent, the Collateral Agents, the Note
Trustee, the Offshore Depositary Bank, the Noteholders and any other Person from
time to time constituting a Secured Party (as defined in the Common Agreement).
"Shares" means the shares representing the capital stock and any other
equity participations in the Company, from time to time issued and outstanding,
however designated and whether or not carrying any voting rights.
1.2 Headings. The headings of the Clauses contained in this Agreement
are used solely for convenience and shall not be taken into account in the
interpretation of this Agreement.
1.3 References. Unless otherwise indicated, all references herein to
Clauses, and Exhibits shall be to Clauses and Exhibits of this Agreement. A
reference to any agreement, instrument or document shall include such agreement,
instrument or document as the same may be amended, restated, modified or
supplemented from time to time in accordance with its terms and as permitted by
the Financing Documents.
CLAUSE 2
TERMS OF PLEDGE
2.1 Pledge. (a) In order to secure payment when due (whether at stated
maturity, by acceleration or otherwise), performance and compliance by the
Company with all of the Secured Obligations, in accordance with the provisions
of Articles 334 to 345 of the LGTOC, each of the Pledgors hereby grants in favor
of the Pledgee, acting solely on
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behalf and for the benefit of the Secured Parties, a pledge of and security
interest in all Shares owned by each of the Pledgors, including, without
limitation, all rights arising out of such Shares, such as rights to dividends
or other distributions (whether in cash or in kind or in any other form)
received, receivable or otherwise distributed for or in exchange of any or all
of each Pledgor's interest in such Shares and all proceeds of the foregoing
(hereinafter the "Pledged Collateral"), subject to the terms of this Agreement.
The pledge created hereunder shall extend to all present and future claims for
amortization of capital, compensations for redemption of Shares, credit balances
in the case of withdrawals or exclusion and for liquidation proceedings, if such
is the case.
2.2 Perfection of Pledge. For purposes of perfecting the pledge and the
security interest created hereunder, and as required by Article 334, Section II
of the LGTOC each of the Pledgors hereby:
(i) endorses in guarantee (endosa en garantia) in favor of the Pledgee,
the certificates evidencing the Shares it owns and which are
simultaneously herewith delivered by or on behalf of the collateral agent
under the Interim Credit Agreement to the Pledgee. Each such endorsement
shall read as follows:
"Pursuant to the Mexican Stock Pledge Agreement dated as of February
26, 2004 by and among Promotora e Inversora ADISA, S.A. de C.V., La
Peninsular Compania Constructora, S.A. de C.V. and Ingenieros
Civiles Asociados, S.A. de C.V., as Pledgors, Banco Santander
Mexicano, S.A., as Pledgee and Constructora Internacional de
Infraestructura, S.A. de C.V., the ____ Series __ shares represented
by this certificate are pledged in favor of Banco Santander
Mexicano, S.A. as Pledgee, acting on behalf and for the benefit of
the Secured Parties, as such term is defined in, and according to
the provisions of, such Mexican Stock Pledge Agreement."
(ii) delivers to the Pledgee a certificate signed by the Secretary of the
Board of Directors of the Company stating that the pledge created
hereunder on the Shares owned by each Pledgor has been duly registered in
the share registry of the Company, together with a copy of the page of the
Company's share registry showing the notation of the pledge, duly
certified as authentic by the Secretary of the Board of Directors of the
Company.
The Pledgors and the Pledgee hereby agree that the execution of this
Agreement constitutes the acknowledgment of receipt of the Shares owned by each
of the Pledgors on the date hereof, as set forth in Article 337 of the LGTOC.
2.3 Appointment of Pledgee as Attorney-in-Fact. Each of the Pledgors
hereby undertakes to irrevocably appoint the Pledgee as its attorney-in-fact to
act in its name and
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behalf in order to exercise any rights of the Pledgors in and to the Pledged
Collateral during the continuation of an Event of Default which has occurred,
and for such purpose, to grant in favor of the Pledgee an irrevocable special
power of attorney to act in the name and on behalf of each Pledgor to exercise,
enforce and defend any rights of the Pledgors in the Pledged Collateral, with
all authorities contained in Article 2554 of the Federal Civil Code and the
correlative Articles of the Civil Codes for the Federal District and the States
of the Mexican Republic, having all authorities requiring general or special
clause in accordance with applicable law. The Pledgee will be authorized to
delegate such power-of-attorney. Such power of attorney shall include sufficient
authority to permit the Pledgee to defend any and all of the Pledged Collateral
against any claim or demand.
On or before the Closing Date, each of the Pledgors shall deliver to the
Pledgee the public deed containing the relevant power-of-attorney referred to in
the preceding paragraph duly formalized before a Mexican notary public.
2.4 Cancellation of the Pledge under the Mexican Interim Stock Pledge.
Within three (3) days after receipt by the Pledgors and the Company of the
written notice given by the collateral agent under the Interim Credit Agreement
pursuant to Section 5.11 of the Mexican Interim Stock Pledge that all amounts
owed under the Interim Credit Agreement and the agreements and the documents
related thereto have been paid in full, the Company shall cancel the notation
made in its share registry in respect of the Mexican Interim Stock Pledge. Upon
the payment in full of all amounts owed under the Interim Credit Agreement and
the agreements and the documents related thereto (in accordance with their terms
and the terms of the Financing Documents), the Pledgee shall cancel the
endorsements in guaranty on the certificates evidencing the Shares in respect of
the Mexican Interim Stock Pledge.
As long as the Mexican Interim Stock Pledge is in effect, the Pledgee
agrees to hold the certificates evidencing the Shares for the preferential
benefit of the collateral agent under the Interim Credit Agreement, as a pledgee
in first place.
CLAUSE 3
COVENANTS OF THE PLEDGORS
3.1 Obligations of the Pledgors. So long as any of the Secured
Obligations remains outstanding, each of the Pledgors, unless the Pledgee
consents otherwise in writing, shall undertake all necessary actions to:
(a) At such Pledgor's expense, at any time and from time to time,
promptly execute and deliver all further instruments and documents and take all
further action that may be necessary or desirable or that the Pledgee may
request, in order to (i) perfect and protect the pledge and security interest
created or purported to be created hereby; (ii) enable the Pledgee to exercise
and enforce its rights and remedies hereunder in respect of
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the Pledged Collateral; and (iii) carry out any other action necessary to comply
with the purposes of this Agreement;
(b) Refrain from selling, assigning or otherwise disposing of or
granting any option in respect of the Pledged Collateral, or creating or
permitting the existence of any lien, security interest, option or other charge
or encumbrance upon or with respect to any of the Pledged Collateral, except for
the pledge created hereunder;
(c) Promptly, but in any event within five (5) Business Days of
obtaining knowledge of any action or claim that may affect the Pledged
Collateral or the Pledgee's right, title or security interest and enforceability
in and to the Pledged Collateral, or which would violate or be inconsistent with
any of the terms or conditions of the Financing Documents, deliver a written
notice to the Pledgee providing detailed information regarding such action or
claim and, unless otherwise instructed by the Pledgee, defend such right, title
and security interest at its expense;
(d) At its expense, promptly deliver to the Pledgee a copy of each
notice or other communication received by it that could affect the Pledged
Collateral owned by it or the security interest created hereby in favor of the
Pledgee; and
(e) Notify the Pledgee in writing of any proposed increase or reduction
of its participation in the Company and deliver or cause to be delivered to the
Pledgee, the day following the subscription (whether directly or indirectly
through any subsidiary or affiliate or in any other manner) of any increase in
the capital of the Company or payment of a dividend or other distribution in
Shares by the Company: (i) the share certificates received by such Pledgor
evidencing the Shares so received, duly endorsed in guarantee in favor of the
Pledgee as provided in Clause 2.2 (i) hereof, and (ii) a copy of the notation in
the share registry of the Company evidencing that such Shares have been pledged
in favor of the Pledgee, certified as authentic by the Secretary of the Board of
Directors of the Company.
CLAUSE 4
RIGHTS IN RESPECT TO THE PLEDGED COLLATERAL.
4.1 Remedies upon Event of Default. (a) In case an Event of Default has
occurred and is continuing, the Pledgee shall be entitled to exercise, in
addition to other rights and remedies available to it hereunder and under the
Financing Documents, all the rights of a secured party following the appropriate
procedures under applicable law.
(b) Each of the Company and each Pledgor covenants and agrees that it
will execute and deliver such documents and take such other action as the
Pledgee reasonably deems necessary or advisable in order that any sale of the
Pledged Collateral, after the occurrence and during the continuance of an Event
of Default, may be made in compliance with applicable law. Any proceeds of any
such sale shall be applied to the payment of the
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Secured Obligations in accordance with the priorities established in Section
7.04 of the Common Agreement and Article 3 of the Intercreditor Agreement.
4.2 Voting Rights and Distributions. (a) Subject to the provisions of
paragraph (d) below, prior to the occurrence of any Event of Default, each
Pledgor shall be entitled to exercise all voting rights pertaining to the Shares
it owns in the Company, including without limitation, the right to call
shareholders meetings of the Company, and all managerial, corporate and other
rights pertaining to the Pledged Collateral owned by it or any part thereof for
any purpose not inconsistent with the terms of this Agreement, any of the
Financing Documents or any restriction contained in the by-laws of the Company;
provided, however, that none of the Pledgors shall exercise any such right, if
such action would have a material adverse effect on the value of any Pledged
Collateral owned by it or could reasonably be likely to trigger an Event of
Default.
(b) On or after the occurrence of any Event of Default, all voting
rights pertaining to the Shares and all managerial, corporate and other rights
pertaining to the Pledged Collateral shall be exercised by the Onshore
Collateral Agent, either personally, or by agents or attorneys, including
without limitation, the right to call to shareholders meetings of the Company.
(c) Any and all dividends on the Shares and any and all distributions,
proceeds or other amounts paid in cash in respect of the Pledged Collateral
owned by each of the Pledgors if and when received by such Pledgor shall be
received in the name of the Pledgee and shall forthwith be transferred by such
Pledgor to the Dollar Revenue Account or such other account that as provided in
the Common Agreement is designated in writing by the Pledgee and shall be held
in pledge hereunder and as provided in the Financing Documents. Any and all
property (other than cash) received in exchange for or in respect of any Shares
(including additional Shares) shall be and become part hereof (and shall be
considered Pledged Collateral hereunder) and, if received by the Pledgor, shall
forthwith be delivered to the Pledgee (together with, if appropriate, proper
instruments of transfer, endorsements of the relevant certificates, notations on
the relevant registries and/or powers executed by the Pledgor) to be held in
pledge hereunder, subject to the terms of this Agreement.
(d) The Pledgee's authorization shall be required for any of the
Pledgors to take any action or to exercise any and all rights which pursuant to
the Common Agreement may not be effected without the prior written approval
required under the Common Agreement.
CLAUSE 5
MISCELLANEOUS.
5.1 Fees and Indemnification of Onshore Collateral Agent. By its
execution of this Agreement, the Company agrees to pay fees of, and indemnify
the Pledgee pursuant to Section 11.04 of the Common Agreement. The rights,
protections, immunities and
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indemnities afforded to the Pledgee pursuant to the Common Agreement shall be
afforded to the Pledgee hereunder as if such provisions were specifically set
forth herein. Each of the Pledgors hereby expressly acknowledges, recognizes and
agrees that, for all matters relating to or arising from or in connection with
this Agreement, (i) the Pledgee is acting solely in its capacity as agent for,
and for the benefit of and pursuant to the instructions of, the Secured Parties,
and not personally, and assumes no direct or personal obligations, expressed or
implied, and (ii) the Pledgee has all necessary authority and legal capacity to
act in the name and on behalf of the Secured Parties.
5.2 No Waiver; Rights Cumulative. No failure on the part of the Pledgee
to exercise, and no delay in exercising, any right hereunder or under any
related agreement, instrument or document shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right preclude any other or
further exercise thereof or the exercise of any other right. The rights and
remedies of the Pledgee provided herein, in the Financing Documents and in all
related agreements, instruments and documents are cumulative and are in addition
to, and not exclusive of, any rights or remedies provided by law. The rights of
the Pledgee under each of this Agreement, any of the Financing Documents and any
related agreements, instruments and documents against any party thereto are not
conditional or contingent on any attempt by the Pledgee to exercise any of its
rights hereunder or under any related agreement, instrument or document against
such party or against any person or entity.
5.3 Continuing Pledge; Assignment. This Agreement shall create an
effective continuing pledge on and security interest in the Pledged Collateral
and shall (i) remain in full force and effect until the later of the payment in
full or release of the Secured Obligations, (ii) be binding on each Pledgor and
its respective successors and assigns and shall inure, together with all rights
and remedies of the Pledgee hereunder, to the benefit of the Pledgee and its
successors, transferees and assigns. Without limiting the generality of the
foregoing, the Pledgee may assign or otherwise transfer its rights hereunder
only in accordance with the Financing Documents to any other person or entity,
and such other person or entity shall thereupon become vested with all of the
benefits in respect thereof granted to the Pledgee, herein or otherwise. None of
the rights or obligations of any Pledgor hereunder may be assigned or otherwise
transferred without the prior written consent of the Pledgee.
5.4 Power-of-attorney. The Company hereby agrees with the Pledgee to
irrevocably appoint the Pledgee as its attorney-in-fact to act in its name and
behalf, upon an Event of Default having occurred and be continuing, in order to
exercise any of its rights under the Public Works Contract and the CFE Side
Letter in connection with the termination of the Public Works Contract, with all
authorities contained in Article 2554 of the Federal Civil Code and its
correlative Articles of the Civil Codes for the Federal District and the States
of the Mexican Republic. The Pledgee will be authorized to delegate such
power-of-attorney. As a condition precedent to the Closing Date under the Common
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Agreement, the Company shall deliver to the Pledgee the public deed containing
such power-of-attorney duly formalized before a Mexican notary public.
5.5 Expenses. The Pledgors jointly and severally agree to pay or
reimburse on demand all reasonable out-of-pocket costs, expenses and
disbursements of the Pledgee in connection with the enforcement of this
Agreement in any circumstance (including, without limitation reasonable fees and
expenses for legal services).
5.6 Severability. If any provision of this Agreement shall be invalid,
illegal, or unenforceable in any jurisdiction, the parties hereto agree to the
fullest extent they may effectively do so that the validity, legality, and
enforceability of such provision in other jurisdictions, and the validity,
legality, and enforceability of the other provisions in such jurisdiction, shall
not in any way be affected or impaired thereby.
5.7 Amendments. This Agreement may not be amended, supplemented, waived
or otherwise modified except by an instrument signed by each of the parties
hereto.
5.8 Counterparts. This Agreement may be executed in several
counterparts, each of which shall be an original and all of which shall
constitute one and the same instrument.
5.9 Notices. Each notice, demand, report, or communication relating to
this Agreement shall be in writing in the English language, shall be
hand-delivered or sent by overnight courier or facsimile transmission (with a
copy by hand delivery or overnight courier to follow, which copy shall not be
required to effect notice), and shall be deemed duly given when received at the
following addresses, or to such other address or number as each party shall have
last specified by notice to the other parties:
To the Pledgors:
PROMOTORA E INVERSORA ADISA, S.A. DE C.V.
Mineria 145 Edificio C Piso 3
Col. Escandon
C.P. 11800
Mexico, D.F.
Attention: Jorge Ibarrola/Luis Horcasitas/Gabriel de la Concha
Telephone: (5255) 52729991 ext. 3500, 3210 or 3300
Fax: (5255) 52275043
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LA PENINSULAR COMPANIA CONSTRUCTORA, S.A. DE C.V.
Arquimedes 3 Piso 5
Col. Chapultepec Morales
C.P. 11570
Mexico, D.F.
Attention: Enrique Gavaldon/Arturo Orozco
Telephone: (5255) 5280 4822
Fax: (5255) 5280 4240
INGENIEROS CIVILES ASOCIADOS, S.A. DE C.V.
Mineria 145 Edificio C Piso 2
Col. Escandon
C.P. 11800
Mexico, D.F.
Attention: Jorge Ibarrola/Luis Horcasitas/Gabriel de la Concha
Telephone: (5255) 52729991 ext. 3500, 3210 or 3300
Fax: (5255) 52275043
To the Company:
CONSTRUCTORA INTERNACIONAL DE INFRAESTRUCTURA, S.A. DE C.V.
Mineria 145 Edificio C Piso 2
Col. Escandon
C.P. 11800
Mexico, D.F.
Attention: Jorge Ibarrola/Luis Horcasitas/Gabriel de la Concha
Telephone: (5255) 52729991 ext. 3500, 3210 or 3300
Fax: (5255) 52275043
To the Pledgee:
BANCO SANTANDER MEXICANO, S.A.
Prolongacion Paseo de la Reforma No. 500 Piso 2 Mod. 209
Col. Lomas de Santa Fe
01219, Mexico, D.F.
Attention: Trinidad Guadalupe Caso Robles
Telephone: (5255) 5257 8000
Fax: (5255) 5269 1956
5.10 Benefit of Agreement. This Agreement shall inure to the benefit of,
and be enforceable by, the parties hereto and the Secured Parties and their
respective successors
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and permitted assigns, and no other Person shall be entitled to any of the
benefits of this Agreement.
5.11 Registration of this Agreement. Each of the Pledgors shall cause
this Agreement to be notarized and filed for registration with the Public
Registry of Commerce of its domicile in accordance with the provisions of
Article 149 of the Tax Code of the Federation (Codigo Fiscal de la Federacion)
on or before the Closing Date; provided, that such registration must be
completed in any event no later than seventy five (75) calendar days after the
Closing Date.
5.12 Termination; No Reduction. This Agreement and the security interest
granted hereunder shall neither be terminated nor reduced until each of the
Pledgors receives written notice from the Pledgee of the payment in full of all
Secured Obligations, which notices shall be delivered by the Pledgee within
thirty (30) calendar days after such payment in full.
5.13 Languages. This Agreement is executed in both English and Spanish
versions, both of which shall bind the parties; provided, however, that in the
case of doubt as to the proper interpretation and construction of this
Agreement, the Spanish text shall prevail.
5.13 GOVERNING LAW AND JURISDICTION. This Agreement shall be governed by
and construed in accordance with the laws of Mexico, without regard to the
conflicts of laws provisions thereof. Any legal proceedings arising out of or
relating to this agreement shall be brought in the competent courts of Mexico
City, Federal District, Mexico. Each of the parties hereto hereby waives any
other preferential jurisdiction by reason of its present or future domicile or
otherwise.
(The rest of this page is intentionally left in blank)
14
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement
to be executed through its duly authorized officer(s) as of the date first above
written.
THE PLEDGORS:
PROMOTORA E INVERSORA ADISA, LA PENINSULAR COMPANIA
S.A. DE C.V. CONSTRUCTORA, S.A. DE C.V.
By: _______________________________ By: _______________________________
Name: Jorge Bernardo Aguirre y Name: Carlos de la Isla Corry
Quintana
Title: Attorney-in-fact Title: Attorney-in-fact
INGENIEROS CIVILES ASOCIADOS, S.A. DE C.V.
By: ____________________________
Name: Jorge Bernardo Aguirre y Quintana
Title: Attorney-in-fact
THE PLEDGEE:
BANCO SANTANDER MEXICANO, S.A.
As Onshore Collateral Agent on behalf and for the benefit of the Secured Parties
By: ___________________________
Name: Trinidad Guadalupe Caso Robles
Title: Delegada Fiduciaria
Acknowledged and Agreed to by:
THE COMPANY:
CONSTRUCTORA INTERNACIONAL
DE INFRAESTRUCTURA, S.A. DE C.V.
By: ____________________________
Name: Jorge Bernardo Aguirre y Quintana
Title: Attorney-in-fact
15
(Signature Page-Mexican Stock Pledge Agreement)
EXHIBIT "A"
CAPITAL STRUCTURE
CONSTRUCTORA INTERNACIONAL DE INFRAESTRUCTURA, S.A. DE C.V.
SERIES A
NO. STOCK
OF CERTIFICATE
SHAREHOLDER SHARES CAPITAL NO. VALUE
- ------------------------------------ ------ ------- ----------- -----------
Promotora e Inversora ADISA, S.A. de 175 Fixed 1 $ 17,500.00
C.V
La Peninsular Compania Constructora, 25 Fixed 2 $ 2,500.00
S.A. de C.V
Ingenieros Civiles Asociados, S.A 55 Fixed 3 $ 5,500.00
de C.V
SERIES B
La Peninsular Compania Constructora,
S.A. de C.V 75 Fixed 2 $ 7,500.00
Open Joint Stock Company "Power
machines - ZTL, LMZ, Electrosila, 95 Fixed 3 $ 9,500.00
Energomachexport"
Ingenieros Civiles 70 Fixed 1 $ 7,000.00
Asociados, S.A de C.V 5 Fixed 4 $ 500.00