TO BE RATIFIED BEFORE A MEXICAN NOTARY PUBLIC AND REGISTERED IN THE RUG]
Exhibit 10.8
[Translation for informational purposes only]
CERTAIN IDENTIFIED INFORMATION HAS BEEN EXCLUDED FROM THIS EXHIBIT PURSUANT TO ITEM 601(B)(10) OF REGULATION S-K UNDER THE SECURITIES ACT OF 1933, AS AMENDED, BECAUSE IT IS BOTH NOT MATERIAL AND IS THE TYPE THAT THE REGISTRANT TREATS AS PRIVATE OR CONFIDENTIAL. INFORMATION THAT WAS OMITTED HAS BEEN NOTED IN THIS DOCUMENT WITH A PLACEHOLDER IDENTIFIED BY THE MARK “[***]”.
Execution Version
[TO BE RATIFIED BEFORE A MEXICAN NOTARY PUBLIC AND
REGISTERED IN THE RUG]
NON-POSSESORY PLEDGE AGREEMENT ON TRUST RIGHTS dated as of November 14, 2024 (as the same may be amended, in whole or in part, supplemented or otherwise restated from time to time, the “Agreement”), by and between
(a) Aerovías de México, S.A. de C.V. (“Aerovías”) and Aerolitoral, S.A. de C.V. (“Aerolitoral”), as pledgors (each of them, in such capacity, a “Pledgor” and, collectively, the “Pledgors”), and
(b) UMB Bank, National Association, in its capacity as Collateral Agent (as defined below), on behalf of and for the benefit of the Secured Parties (as defined below), as pledgee (in such capacity, together with its successors and assigns, the “Pledgee” and jointly with the Pledgors the “Parties”), subject to the following recitals, Representations and Clauses.
I. Defined Terms. The terms with initial capital letters used in this Agreement and not expressly defined herein shall have the meaning attributed to them in Clause First of this Agreement or, alternatively, the meaning established for such term or its respective translation in the Indenture (as such term is defined below), as the case may be.
II. GSE Trust. On December 15, 2011, Aerovías, Aerolitoral and Servicio Mexicano de Vuelos de Fletamento, S.A. de C.V., as trustors and trustees, and Nacional Financiera, S.N.C., Institución de Banca de Desarrollo, Dirección Fiduciaria, as trustee (the “Trustee”), entered into a trust agreement identified with the number 80644 (as the same may be amended, in whole or in part, supplemented or otherwise restated from time to time, the “GSE Trust”), by means of which Aerovías and Aerolitoral assigned, conveyed and transferred all their respective rights, and interest in and to all motorized and non-motorized property used to provide ground support services, used to provide the complementary ground services contemplated by Article 48 of the Airport Law (Ley de Aeropuertos) (the “Ground Support Equipment”). A copy of the GSE Trust (without Exhibits) is attached hereto as Exhibit “A”.
III. Note Issuance Documents. On November 14, 2024, GAM, Aerovías, Aerolitoral, Aerovías de Cargo and PLM Premier (collectively, the “Debtors”) and the Secured Parties (as such term is defined below), represented herein by the Pledgee, entered into the Note Issuance Documents (as such term is defined below), pursuant to which GAM issued senior secured notes, in two series, due 2029 (the “2029 Notes”) and due 2031 (the “2031 Notes”, the 2031 Notes, together with the 2029 Notes, the “Notes”), in the aggregate
principal amount of US $1,110’000,000 (one billion one hundred and ten million Dollars 00/100, legal currency in the United States of America) (the “Notes Issuance”), consisting of an aggregate principal amount of US$500,000,000,000 (five hundred million Dollars, legal currency in the United States of America) of the 2029 Notes and in aggregate principal amount of US$610,000,000 (six hundred ten million Dollars, legal currency in the United States of America) of the 3031 Notes.
IV. Indenture. On the same date, GAM subscribed the “Indenture” (as such term is defined below) by means of which the issuance of the Notes was agreed.
V. Collateral Agent. Pursuant to the Indenture, UMB Bank, National Association, serves as Collateral Agent for the benefit of the Secured Parties referred to in the Indenture (in such capacity, together with their successors and assignees in such capacity, the “Collateral Agent”).
VI. Therefore, the Pledgors hereby enter into this Agreement in order to grant to the Pledgee, for the benefit of the Secured Parties, a Pledge on the Pledged Assets in order to guarantee the due and timely payment, performance and fulfillment of each and every one of the Secured Obligations of the Notes.
I. The Pledgors hereby jointly and severally state, through their respective attorneys-in-fact and under oath, that as of this date:
(a) | each Pledgor is a variable capital corporation (sociedad anónima de capital variable) duly organized and validly existing under the laws of Mexico, as evidenced, respectively, by the public deeds listed by their names in Exhibit “B” to this Agreement; |
(b) | each Pledgor has full legal capacity and sufficient authorities, as well as the necessary authorizations (corporate, statutory and of any nature), to validly enter into, fulfill and carry out this Agreement and the obligations arising hereunder; |
(c) | there are no proceedings initiated by the Pledgor or existing proceedings against the Pledgor and, to the best of its knowledge and belief, there are no proceedings initiated by third parties against the Pledgor, seeking reorganization, receivership, bankruptcy, dissolution or liquidation of the Pledgor or having or likely to have a material adverse effect on their financial or legal condition, in addition to those already disclosed by the Pledgor in the Note Purchase Agreement and the Offering Memorandum; |
(d) | the Pledgors are the sole and lawful owners and beneficiaries, and have rightful title, to the Pledged Assets, as applicable, and each Pledgor is in good standing in compliance with any and all of its legal obligations and requirements arising out of or relating to its respective Pledged Assets; |
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(e) | the Pledged Assets are free and clear of any Liens (except for permitted Liens under the Indenture), conditions, limitations or restrictions on title or any other options or preemptive rights of any nature, including without limitation, rights of first refusal or rights of first refusal and other rights of third parties; |
(f) | none of the Pledged Assets is subject to any, agreement, contract or other document pursuant to which (a) any third party is granted (x) any option or right of any nature whatsoever to use, enjoy, possess, acquire or otherwise lease the Pledged Assets or any part thereof and/or (y) any option or right to manage or otherwise control the Pledged Assets or any part thereof; or (b) any Lien, assignment, transfer, conveyance, use or exercise of such Pledged Assets or any part thereof, or the rights derived therefrom, is in any way restricted or prohibited, except for the restrictions provided in this Indenture and the other Note Issuance Documents or the execution of this Pledged Collateral; |
(g) | neither the bylaws of the Pledgors, nor any of the agreements to which any Pledgor is a party as of the date hereof, include any provision that would restrict the Pledgee’s capacity and/or rights to execute and/or dispose of the Pledged Assets as provided in this Agreement; |
(h) | all authorizations, licenses, permits and certificates required under applicable laws and regulations shall be requested and paid in full by the Pledgors in accordance with applicable laws and regulations within 10 (ten) days after the date of signature of this Agreement; |
(i) | no Pledgor requires any authorization or approval or the delivery of any notice (except for those authorizations and approvals which have been duly and validly obtained prior to the execution of this Agreement and which are in full force and effect, or except for those governmental or contractual authorizations and approvals) for (i) the execution, performance and enforcement of this Agreement in accordance with its terms, or (ii) to grant, perfect and maintain a first priority pledge on the Pledged Assets (except for the registration in the Sole Registry of Movable Guarantees (Registro Único de Garantías Mobiliarias)), or to perform or fulfill its obligations under this Agreement, which are legal, valid and enforceable against each Pledgor in accordance with their respective terms; |
(j) | as of this date there is no and, to the best knowledge and belief of each Pledgor after due investigation, there is no threat that there will be commenced (except for those facts disclosed in the Offering Memorandum and the Note Purchase Agreement) action, suit, claim, requirement or proceeding before any court, Governmental Authority, arbitrator, arbitration panel or other adjudicatory body against any Pledgor, which affects or may affect (i) the Pledged Assets or any part thereof; (ii) the legality, validity or enforceability of this Agreement (including its execution), the Pledged Collateral created hereunder and/or any of the obligations of any of the Pledgors arising out of or relating to this Agreement; and/or (iii) the rightful and valid ownership and title of the Pledgors with respect to their corresponding Pledged Assets. and/or the Pledgee’s right to enforce the Pledged Collateral; |
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(k) | the execution and performance of this Agreement is within the corporate purpose of each Pledgor and does not contravene or constitute a breach of (i) any provision of the Pledgors’ bylaws, charter, articles of incorporation, operating agreement, shareholders’ agreement or any other charter or partnership document; (iii) any contract, agreement, license, resolution or order to which any of the Pledgors is a party or to which any of the Pledgors or their respective assets (other than the Pledged Assets) are subject, or (iv) any law, regulation, circular, order or decree of any Governmental Authority; |
(l) | the persons executing this Agreement on behalf of and in representation of each Pledgor have all the necessary powers and authorities, as well as authorizations (corporate, statutory and otherwise) to validly execute this Agreement on behalf of and in representation of each Pledgor and to validly bind each such Pledgor in accordance with the terms hereof, as evidenced by the public deeds listed in Exhibit “B” to this Agreement, and such powers, authorities and authorizations are in full force and effect as of this date and have not been revoked, amended or otherwise limited in any manner; |
(m) | it is the intention and will of each Pledgor to enter into this Agreement and to grant a non-possessory pledge agreement on the Pledged Assets in favor of the Pledgee, for the benefit of the Secured Parties, to irrevocably guarantee the due and timely payment, performance and satisfaction of each and every one of the Secured Obligations; |
(n) | each Pledgor has received or will receive direct or indirect benefits from the consummation of the Note Issuance by entering into and delivering this Agreement and any other Note Issuance Document to which it is a party; |
(o) | by entering into this Agreement, each Pledgor acknowledges the legal capacity and authority of the Pledgee to act as Collateral Agent for the benefit of the Secured Parties in accordance with the terms of the Note Issuance Documents and the Collateral Agent Designation; |
(p) | each Pledgor acknowledges and agrees that (i) the truth and accuracy of its representations included in this Agreement, and (ii) the validity and enforceability of this Agreement and the first-priority pledge of the Pledged Assets created hereunder, are a determinative ground of the willingness of the Secured Parties to purchase the Notes and of the Pledgee and the Secured Parties to enter into the Note Issuance Documents; |
(q) | there has been no mistake, fraud, fraudulent misrepresentation, bad faith or coercion in the execution of this Agreement; and |
(r) | this Agreement and the Pledged Collateral granted hereunder constitute, in favor of the Pledgee, for the benefit of the Secured Parties, a legal, effective, valid and enforceable pledge over the Pledged Assets. |
II. The Pledgee hereby states, through its attorney-in-fact, that:
(a) | it is a National Association organized and validly existing under the laws of the United States of America; and |
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(b) | the individual executing this Agreement on its behalf has the necessary powers-of-attorney and authorities to validly execute this Agreement on its behalf and validly bind it under the terms hereof, and such powers of attorney, authorities and corporate authorizations have not been revoked, amended or limited whatsoever. |
NOW THEREFORE, as per the recitals and representations, the Parties grant the following:
Clauses
First. Certain Defined Terms.
(a) As used in this Agreement and its Exhibits, the following capitalized terms shall have the following meanings, unless the context otherwise requires:
“Pledgee” has the meaning ascribed to it in the foreword to this Agreement.
“Indenture” means the indenture, a copy of which is attached hereto as Exhibit “C”, entered into on November 14, 2024 by, among others, (i) GAM, as issuer; (ii) certain subsidiaries of GAM, as guarantors; (iii) The Bank of New York Mellon, as trustee, registrar, transfer agent and principal paying agent; and (iv) UMB Bank, National Association, as Collateral Agent as amended, in whole or in part, supplemented or otherwise restated from time to time.
“Aerolitoral” has the meaning ascribed to it in the foreword to this Agreement.
“Aerovías” has the meaning ascribed to it in the foreword to this Agreement.
“Aerovías de Cargo” means Aerovías Empresa de Cargo, S.A. de C.V.
“Collateral Agent” has the meaning ascribed to it in Recital V of this Agreement.
“Pledgee” has the meaning ascribed to it in the foreword to this Agreement.
“Governmental Authority” means with respect to any Person, any applicable nation or government, any state or other political subdivision thereof, any applicable central bank (or similar monetary or regulatory authority) and any entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of, or relating to, the government (whether such authority is recognized as a de jure government or is a de facto government) with respect to such Person, including, as the case may be, any supranational body such as the European Union or the European Central Bank.
“Pledged Assets” means the joint reference to (i) the Trust Rights, (ii) any other interests, participation, rights, remedies, proceeds, distributions, products, dividends (in cash, shares or otherwise) and any other rights and properties from time to time received, payable or distributed in any manner with respect to, or in exchange for, all or any part of such Trust Rights, and (iii) all cash, cash equivalents, property, proceeds and/or proceeds of sale received by any of the Pledgors in connection with or derived from the Pledged Assets.
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“Commercial Code” means the Mexican Commercial Code (Código de Comercio).
“Agreement” means this Non-Possessory Pledge Agreement, as amended, whether in whole or in part, supplemented or otherwise restated from time to time.
“Note Purchase Agreement” or “Purchase Agreement” means the note purchase agreement entered into on October 28, 2024, among GAM, the Guarantors and the Initial Purchasers (as such term is defined in the Note Purchase and sale Agreement).
“Trust Rights” means any and all trust rights, present or future, of each of the Pledgors, as settlors and as trustees under the GSE Trust, as calculated on a quarterly basis by the Trustee in accordance with the provisions of the GSE Trust, as well as any other present and future trust rights, economic rights and benefits of the Pledgors with respect to the Trust Assets in connection with, or arising out of, the GSE Trust.
“Pledgors” has the meaning ascribed to it in the foreword to this Agreement.
“Business Day” means any day except Saturday, Sunday and any day on which banks located in (i) New York, New York, United States of America, or (ii) Mexico City, Mexico, are authorized or required by law, regulation or decree to remain closed.
“Collateral Documents” means the joint reference to this Agreement, any and all agreements, documents or instruments which are “Collateral Documents” in terms of the Indenture and any and all agreements, documents or instruments, present or future, relating thereto or otherwise constituting or perfecting a collateral or pledge in favor of the Pledgee on any Pledged Assets (Collateral, as defined in the Note Issuance Documents), in each case, (y) together with all documents, schedules and exhibits derived therefrom or in connection therewith, and (z) as amended, in whole or in part, supplemented or otherwise restated from time to time.
“Note Issuance Documents” means the joint reference to the Indenture, the Offering Memorandum, the Note Purchase Agreement, the Notes and the Collateral Documents (including this Agreement) in each case, (y) together with all documents, schedules and exhibits derived therefrom or in connection therewith, and (z) as amended, whether in whole or in part, supplemented or otherwise restated from time to time.
“Dollars” or “US$” means the legal currency in the United States of America.
“Ground Support Equipment” has the meaning ascribed to such term in Recital II of this Agreement.
“Event of Default” has the meaning ascribed to the term “Event of Default” in the Note Issuance Documents.
“Trustee” has the meaning ascribed to it in Recital II of this Agreement.
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“Indenture Trustee” has the meaning ascribed to the term “Trustee” in the Indenture and the other Note Issuance Documents.
“GSE Trust” has the meaning ascribed to it in Recital II of this Agreement.
“GAM” has the meaning ascribed to it in Recital III of this Agreement.
“Guarantors” means the joint reference to Aerolitoral, Aerovías, Aerovías de Cargo, and PLM Premier, S.A.P.I. de C.V. in their capacity as guarantors under the Note Issuance Documents.
“Pledged Collateral” has the meaning set forth in Clause Second of this Agreement.
“Collateral” has the meaning ascribed to the term “Collateral” in the Indenture and the other Note Issuance Documents.
“Lien” means, with respect to any property or asset, any mortgage (statutory or otherwise), pledge, lien, attachment, charge, security interest, assignment or other encumbrance, preference, priority or preferential agreement or encumbrance of any kind, including any security trust, with respect to such property or asset or upon the income, (i) any security interest in any right to participate in any way in the income, profits, revenues, royalties, rents or other gains of any kind whatsoever derived from or attributable to such property or assets or rights which may arise therefrom; (ii) any acquisition, option or right to acquire such property or assets, including any conditional sale or other reservation of title covenant or agreement; and (iii) any agreement to create or grant any of the foregoing.
“Default” means any event or situation which constitutes an Event of Default or which, by notice, by lapse of time or both, unless effectively remedied or waived, may constitute an Event of Default.
“Law” means the General Law of Credit Instruments and Operations (Ley General de Títulos y Operaciones de Crédito).
“Airport Law” means the Mexican Airport Law (Ley de Aeropuertos de Mexico).
“Offering Memorandum” means the Offering Memorandum dated October 28, 2024, whereby GAM offers the aggregate principal amount of US$1,110’000,000 (one billion one hundred and ten million Dollars 00/100, legal currency in the United States of America) through the issuance of the Notes. A copy of which is attached hereto as Exhibit “D”.
“Mexico” means the United Mexican States.
“Termination Notice” has the meaning set forth in Clause Third of this Agreement.
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“Secured Obligations” means, jointly or separately as the context may require, and without duplication, (i) any and all amounts due or payable, actual or contingent, by GAM, the Guarantors (in any capacity) and/or the Pledgors (in any capacity), under or in connection with the issuance of the Notes and/or the Note Issuance Documents(including the Collateral Documents), including, without limitation, interest, any fees, commissions, indemnities, costs and expenses (including, without limitation, reasonable and provable attorneys’ fees and expenses) due or payable by GAM, the Guarantors (in any capacity) and/or the Pledgors (in any capacity) pursuant to the Notes and/or the Note Issuance Documents; (ii) any and all obligations of GAM, the Guarantors (in any capacity) and/or the Pledgors (in any capacity) arising out of or relating to the Notes and/or the Note Issuance Documents (including the Collateral Documents); and (iii) any and all obligations of any of the Pledgors arising out of or relating to this Agreement.
“Parties” has the meaning ascribed to it in the foreword to this Agreement.
“Secured Parties” means the joint reference to the Holders of the Notes, the Trustee, the Registrar, the Transfer Agent, the Principal Paying Agent and the Collateral Agent, as well as any other Person that is a “Secured Party” in terms of the Indenture.
“Trust Assets” has the meaning ascribed to the term “Trust Assets” in the GSE Trust.
“Person” means any natural person, legal entity, corporation (including business trust), limited liability company, limited liability partnership, joint stock company, trust, joint venture, joint venture or any other entity, or Governmental Authority.
“RUG” has the meaning ascribed to it in Clause Second of this Agreement.
“Legal Requirements” means any and all applicable laws, regulations, rules, acts, provisions, codes, orders, conditions, restrictions and other legal requirements, issued or promulgated by any Governmental Authority, whether federal, local and/or municipal, relating to or applicable to the Pledged Assets (or any part thereof), including, without limitation, the design, use, operation and maintenance of the Pledged Assets (or any part thereof), as such requirements may be modified, either in whole or in part, added to, substituted for or otherwise amended from time to time.
(b) Interpretation. The terms defined in this Clause First shall apply to both the singular and plural forms of such terms. When the context so requires, any pronoun shall include the corresponding masculine, feminine or neutral form. Except as otherwise expressly provided herein, the words “herein,” “hereof,” “hereunder,” “hereunder,” “further hereunder” and words of similar meaning refer to this Agreement as a whole and not to any particular provision of this Agreement, and all references to Clauses, sections, paragraphs, subparagraphs, subparagraphs and Exhibits refer to Clauses, sections, paragraphs, subparagraphs, bullets and Exhibits of this Agreement, unless the context otherwise requires. As used in this Agreement or in any certificate or document executed pursuant to this Agreement, (i) the words “include” and “including” shall be construed to be followed by the words “without limitation”, (ii) the word “incur” shall be construed to mean incur, create, issue, assume, assume liability in connection with, or permit to exist (and the words “incurred” and “incur” shall have correlative meanings), (iii) “asset” and/or “property” shall be construed to have the same meaning and effect and to refer to any and all assets, rights and property, tangible and intangible, including cash, shares and/or interests representing the capital stock of any corporation, securities, income, accounts,
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leasehold and contractual rights, (iv) except as otherwise expressly provided, references to any contract, agreement or instrument include reference to such contract, agreement or instrument, as the same may be amended, supplemented or otherwise restated from time to time, and (v) references to any statute, law or regulation shall be construed to include amendments thereto from time to time or to any law or regulation replacing the same.
Second. Pledge; Constitution of the Pledge.
(a) Pursuant to Title Two, Chapter IV, Section Seven of the Law, the Pledgors hereby grant an unconditional and irrevocable nonpossessory pledge in favor of and for the benefit of the Secured Parties acting through the Pledgee (the “Pledged Collateral”) of and in respect of their respective Pledged Assets, which are currently owned by the Pledgors (or any of them) or which the Pledgors (or any of them) acquire in the future, or over which any of the Pledgors have or hereafter acquire any right or interest in or under the GSE Trust, and with all things in fact and in law to which they are entitled, in order to unconditionally and irrevocably guarantee the due and timely performance, payment and fulfilment when due (whether at scheduled maturity, for early maturity or otherwise) of each and every one of the Guaranteed Obligations.
(b) In order to perfect the Pledged Collateral on the Pledged Assets in accordance with the provisions of Articles 365, 366 and 367 of the Law, the Pledgors undertake to (i) ratify this Agreement before a notary public and (ii) have said notary public register the respective public instrument in the Sole Registry of Movable Guarantees (Registro Único de Garantías Mobiliarias) (the “RUG”) within 5 (five) business days following the date of execution of this Agreement, and shall deliver to the Pledgee a copy of the electronic registration ballot issued by the RUG, documenting said request. For such purposes, the Pledgors and the Pledgee hereby and as of this moment authorize and instruct the notary public before whom this Agreement is ratified to register the same with the RUG no later than the aforementioned date. The Pledgors agree to (i) provide to the notary public before whom this Agreement is ratified, the amounts necessary, if any, to cover the fees of such notary public and any notary fees, duties, taxes, contributions or other amounts related to the registration of this Agreement in the RUG; and (ii) cooperate with the Pledgee and/or the corresponding notary public and sign all the documents that the Pledgee and/or such notary public may require, so that any of them may carry out any procedure or act related to the foregoing.
(c) In addition, the Pledgors hereby agree and undertake to, as soon as practicable but in any event within ten (10) days after the date of execution of this Agreement, (i) notify the Trustee of the execution of this Agreement and the granting of the Pledged Collateral, (ii) provide such Trustee with a copy of this Agreement and notify the terms hereof, and (iii) provide the Pledgee with evidence that the Trustee has been notified as set forth in (i) above.
(d) The Pledgors hereby irrevocably authorize the Pledgee to (i) in its sole discretion; (ii) without notice to the Pledgors; (iii) at the Pledgors sole cost and expense; and (iv) without any liability whatsoever to the Pledgee, to file and execute any notice, filing or instrument in or before any registry, office or registry office, institution and/or the Trustee and/or any Governmental Authority, as the Pledgee may deem appropriate in order to perfect or protect the Pledged Collateral.
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(e) The Pledgors agree and undertake to, on this date, (I) grant in favor of the Pledgee, in a public deed before a Mexican notary public, a special irrevocable power of attorney in terms of the form attached hereto as Exhibit “F”, in order to in the name and on behalf of the Pledgors or otherwise, the Pledgee may (a) carry out all the actions described in this Agreement and all the acts incidental thereto, as well as any actions necessary to preserve any rights of the Pledgee and/or the Secured Parties with respect to the Pledged Assets (or any part thereof), including, without limitation, in the event of the occurrence and continuance of an Event of Default, instruct the Trustee, to pay and deposit all amounts payable to any Pledgor directly to the Pledgee in the accounts designated by such Pledgee, and to receive such amounts and deposits and apply them to the payment of the Secured Obligations as provided in the Note Issuance Documents; (b) exercise all rights and powers pertaining to, or relating to, the Trustee Rights, as provided in Clause Fifth of this Agreement; and (c) to perform all acts necessary to, and to execute, acknowledge and/or deliver any and all acts, documents, deeds, assignments, pledge agreements, security agreements, and other documents required to (i) perfect, assign, transfer, protect, confirm and/or maintain the Pledged Collateral granted under this Agreement and the rights, actions and remedies of the Pledgee and the Secured Parties hereunder; and/or (ii) to carry out the intent or facilitate the performance of the terms of this Agreement, as well as to enable the Pledgee and the Secured Parties to exercise their respective rights, actions and remedies under this Agreement and/or applicable law, and/or (iii) to register this Agreement and/or any transaction contemplated hereby (including, without limitation, the Pledged Collateral), in or before all necessary or applicable registries, offices or filing offices, institutions or Governmental Authorities; as well as to (iv) demand payment of, collect, recover, accrue, combine, endorse, receive and grant and issue letters and receipts for amounts due and to become due under or in respect of the Pledged Assets; and/or (v) receive, endorse and collect any negotiable instruments or certificates of deposit, assignments, verifications and notices in connection with the Trust Rights and other documents relating to the Pledged Assets; and/or (vi) receive, endorse and collect any and all instruments derived from any Trust Rights that are payable to any Pledgor; and (II) deliver to the Pledgee an original testimony of the public deed evidencing such power of attorney.
(f) The Pledgors shall pay all reasonable and documented fees, notarial expenses, duties, taxes, contributions, as well as any other amounts necessary to fulfill their obligations under this Clause Second.
Third. Term; Continuance of Pledged Collateral. The Pledged Collateral shall be continuing and (i) shall remain in full force and effect until all Secured Obligations and any and all other amounts (other than amounts arising from indemnification obligations in respect of which no claim has been initiated) due under the Note Issuance Documents have been duly and legally satisfied, satisfied, fulfilled, paid and irrevocably discharged in full to the satisfaction of the Pledgee and there is no outstanding commitment on the part of GAM, the Guarantors (in any capacity) or the Pledgors (in any capacity) that could give rise to Secured Obligations; (ii) shall be binding on the Pledgors and their respective successors in title and permitted assigns; and (iii) shall inure to the benefit of and be enforceable by the Pledgee and the Secured Parties, and their respective successors in title and assigns. As soon as reasonably practicable, but in any event within 10 (ten) Business Days after all Guaranteed Obligations (other than amounts arising from indemnification obligations for which no claim has been initiated) have been duly and legally satisfied,
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performed, paid and irrevocably discharged in full to the satisfaction of Pledgee and there are no outstanding commitments on the part of GAM, the Guarantors (in any capacity) or the Pledgors (in any capacity) that could riseSecured Obligations (other than amounts derived from indemnification obligations in respect of which no claim has been initiated), and upon written request of the Pledgors, the Pledgee shall deliver to the Pledgors a notice of termination substantially in terms of the form attached hereto as Exhibit “F” (the “Termination Notice”).
Only by delivery of the Termination Notice by the Pledgee to the Pledgors as contemplated in this Agreement or by termination as expressly set forth in this Agreement or by the termination established in the Indenture, shall this Agreement terminate and the Pledged Collateral shall cease, terminate and be released. The Pledgors shall be responsible for the payment of any costs, expenses, fees, royalties, commissions and fees, including reasonable and documented fees and disbursements of legal counsel to the Pledgee and the Secured Parties, arising out of or related to the termination, release and/or cancellation of the Pledged Collateral.
The Parties agree and acknowledge that the Pledged Collateral is indivisible and that the Pledged Assets guarantee the satisfaction, performance and payment of the Guaranteed Obligations in their entirety, without any limitation whatsoever; by virtue of the foregoing, the Pledgors hereby waive any rights, present or future, that they may have to request the partial release of the pledge under this Agreement or any other security that the Pledgors or any third party may have created, granted, acquired or designated to secure the Secured Obligations, and the Parties hereby agree that, notwithstanding the provisions of Article 349 of the Law, the Pledged Collateral granted under this Agreement shall not be reduced pursuant to the provisions of such Article.
Fourth. Obligations of the Pledgors.
(a) The Pledgors jointly and severally undertake and agree that they shall, during the term of this Agreement:
i. | (i) defend, at its own cost and expense, the Pledged Assets and the right, title and interest of Pledgee and the Secured Parties in and to the Pledged Assets, from and against any actions, claims or proceedings brought by any Person (including any Person claiming an interest in respect of the Pledged Assets) other than Pledgee and/or the Secured Parties; provided, however, that Pledgee shall have the right, but not the obligation, to defend the Pledged Assets and its rights and the rights of the Secured Parties under this Agreement, in which event the Pledgors shall reimburse Pledgee for the reasonable and documented costs and expenses incurred by Pledgee and/or the Secured Parties in connection with such defense, and the amount thereof shall form part of the Secured Obligations until paid in full; (ii) pay any expenses necessary for the preservation, repair, management or collection of the Pledged Assets, within the ordinary course of its operations; (iii) refrain from creating, incurring, assuming or allowing to exist any Lien, charge, option or security interest in favor of, or any claim of any Person with respect to, any of the Pledged Assets now owned by the Pledgors or hereafter acquired by the Pledgors, except for |
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the Pledged Collateral; (iv) refrain from selling, exchanging, conveying, transferring, assigning, delivering, affecting in trust, granting in usufruct, pledging or otherwise disposing of, or granting any option with respect to, such Pledged Assets or any interest or right therein, except for the Pledged Collateral or as otherwise permitted by the Indenture; (v) refrain from taking any action that would in any way (x) impair the value of the Pledged Assets, or (y) limit the enforceability of the Pledgee’s security interest in the Pledged Assets, or (z) take any action the result of which would impair the enforceability of the pledge created under this Indenture; (vi) refrain from taking any action, outside the ordinary course of its business, that would affect the Pledged Assets; (vii) execute and deliver to Pledgee such documents in favor of Pledgee, and take any action in connection with the Pledged Collateral as Pledgee may request in order to protect and maintain the Pledged Collateral and to protect and preserve the Pledged Assets, and pay all reasonable and documented costs and expenses arising out of or in connection with the foregoing; and (viii) pay any and all taxes, assessments, levies and other charges of any nature whatsoever which may be assessed, levied or imposed upon or in connection with the Pledged Assets (or any part thereof); |
ii. | if applicable, maintain in force any authorization or approval, whether internal or governmental, in order for the Collateral pledged under this Agreement to be valid and enforceable; |
iii. | in the event that the perfection or enforceability of the pledge created pursuant to this Agreement is affected or limited in any way, or if the Pledgee so requests in writing, with just cause, to grant a new pledge on or in relation to the Pledged Assets or, if this is not possible, on any other assets of the Pledgor that are acceptable to the Pledgee and subject to the provisions of the Indenture; |
iv. | comply with, observe, maintain, renew and carry out any and all Legal Requirements applicable to or in respect of the Pledged Assets and/or the GSE Trust; |
v. | cover and pay in full all and any costs and expenses necessary or convenient for the proper conservation, repair, management and operation of all and any Pledged Assets and/or the GSE Trust; |
vi. | refrain from amending the terms of any document constituting, or relating to, the Pledged Assets in any manner that would affect the performance of the Secured Obligations or that would otherwise result (or could reasonably be expected to result) in a default or conflict with the terms and conditions of the Note Issuance Documents, without the prior written consent of the Pledgor; |
vii. | refrain from taking any action or allowing any Person to take or refrain from taking any action, which may impair the validity or enforceability of the Collateral created hereunder; |
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viii. | guarantee at all times the existence and legitimacy of the Pledged Assets, until such time as the Guaranteed Obligations have been duly and timely satisfied, paid, fulfilled and irreversibly liquidated in full, to the satisfaction of the Pledgee; |
ix. | promptly notify the Pledgee in writing of any circumstances which adversely affect or which the Pledgors (or any of them) reasonably believe may adversely affect the rights of the Pledgee and/or the Secured Parties under this Agreement, or of any circumstance or event which causes or may cause the loss, destruction or material reduction in value of the Pledged Assets (or any part thereof), as soon as practicable but in any event within 2 (two) Business Days following the date on which such circumstance or event occurs; |
x. | deliver to Pledgee such information as Pledgee may justifiably and reasonably require in connection with the Pledged Assets, the GSE Trust and the performance of this Agreement, as soon as practicable but in any event within 2 (two) Business Days after the date on which any Pledgor receives such request; |
xi. | immediately notify the Pledgee in writing as to whether any Default or Event of Default has occurred; |
xii. | in the event of the occurrence of an Event of Default, at its sole cost and expense, notify the Trustee, instructing it to make all payments under the GSE Trust relating to the Trust Rights directly to the bank account designated by the Pledgee; and |
xiii. | comply with all obligations included in the Note Issuance Documents and any other related documents in accordance with the terms thereof. |
(b) The Pledgors covenant and agree that they shall protect, indemnify, reimburse, defend and hold the Pledgee and the Secured Parties (and their respective successors, assigns and assignees) and their respective directors, officers, employees legal representatives, legal counsel and agents, at the sole cost and expense of the Pledgors, harmless from and against any and all liabilities, losses, demands, suits, proceedings, penalties, judgments, judgments, Liens, assessments, claims, damages, costs, fines and disbursements, as well as reasonable and documented fees and expenses of any kind (including, without limitation, reasonable and documented fees of legal counsel), whether known or unknown, anticipated or unanticipated, contingent or otherwise, arising out of or in connection with the Pledged Assets or any part thereof (including, without limitation, any tax contingency or liability), this Agreement and/or any act or omission in connection therewith, including without limitation, in connection with (i) the making, granting and performance of this Agreement and any amendments thereto; (ii) the perfection and maintenance of the Pledged Collateral under this Agreement; (iii) the exercise of any of the rights arising out of or relating to the Pledged Assets; and (iv) the exercise by Pledgee of any of its rights, actions and remedies under or pursuant to this Agreement. The indemnification obligations of the Pledgors contained in this Clause shall continue in full force and effect regardless of the termination of this Agreement and shall survive the sale or transfer of the Pledged Assets (or any part thereof) pursuant to Clause Seventh of this Agreement or otherwise.
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(c) The Pledgors hereby expressly and irrevocably agree to maintain the Pledged Collateral in favor of the Pledgee on the totality of the Pledged Assets and hereby unconditionally, expressly and irrevocably waive any and all rights provided in Article 358 of the Law, without the prior written consent of the Pledgee.
Fifth. Pledged Assets.
(a) Economic and Corporate Rights. Provided that no Default or Event of Default has occurred, the Pledgors shall have the right to exercise the rights under their respective Trust Rights in a manner that is consistent with the Note Issuance Documents and that does not result (or could not reasonably be expected to result) in a breach of, or conflict with, the terms and conditions of this Indenture, the other Note Issuance Documents and/or any transactions contemplated thereby, and/or the rights and remedies of the Pledgee and/or the Secured Parties under this Agreement, the other Note Issuance Documents or applicable law, or the authority of the Pledgee and/or the Secured Parties to exercise any rights or remedies; provided, however, that no vote shall be cast and no consent shall be given or action shall be taken which has the effect of impairing or prejudicing the position or interests of the Pledgee and/or the Secured Parties with respect to the Trust Rights, or which authorizes, causes or consents to: (i) the termination or cancellation of the GSE Trust; (ii) the creation or granting of any Lien or other security interest on the Trust Rights and/or the Trust Assets (or any portion thereof); (iii) the sale, transfer, conveyance or other disposition of all or any portion of the Trust Rights and/or the Trust Assets (except in the ordinary course of its business but only to the extent such transfer or other disposition is permitted in terms of the Note Issuance Documents); and/or (iv) the reformation or modification of the GSE Trust.
(b) Upon the occurrence of a Default or an Event of Default, the rights of the Pledgors to exercise any rights in connection with the Trust Rights as provided in paragraph (a) above shall cease, and all such rights and powers shall thereafter be exercised by the Pledgor, who shall have the exclusive and unrestricted right and power to exercise such rights and powers relating to or in connection with the Trust Rights in such manner as it deems appropriate; provided, however, that the Pledgee shall have the right, but not the obligation, at any time after the occurrence of a Default, to authorize the Pledgors in writing to exercise such rights.
(c) Inspection Rights. Pursuant to Section 362 of the Law, the Pledgee (or any other Person or Persons designated by the Pledgor) shall have the right, upon reasonable prior notice but in any event at least 2 (two) Business Days prior to the date of the inspection, during normal business hours and at the Pledgors sole cost and expense, to visit and enter any place of business of the Pledgors where the Pledgors are located, during normal business hours and at the exclusive cost and expense of the Pledgors, to visit and enter any place of business of the Pledgors where the Pledged Assets are located, upon authorization of the relevant Pledgor and inspect the Pledged Assets, in order to verify the Pledgors’ compliance with the Note Issuance Documents, conduct site visits, examine, inspect and audit the books and records of the Pledgors solely related to the Pledged
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Assets and/or the GSE Trust, and obtain copies or extracts of records, publications, orders, receipts and correspondence or any other information of the Pledgors solely with respect to or relating to the Pledged Assets and/or the GSE Trust, as well as discuss the affairs, finances and condition of the Pledged Assets, with the independent officers and accountants of the Pledgors. The Pledgors shall cooperate with the Pledgor in the conduct of such visits and inspections, and the Pledgor shall not, during such visits and inspections, impede, endanger, obstruct or interfere with the ordinary course of the Pledgors’ business, it being understood that the Pledgors shall, to the extent possible, notify the Pledgee of any action of the Pledgee or its representatives that may contravene the provisions of this paragraph. Notwithstanding the foregoing, in the event of the occurrence of a Default, an Event of Default or an emergency situation, the Pledgee shall have the right to enter any of the Pledgors’ places of business during non-business hours and without any prior notice or warning.
(d) Liability with respect to the Pledged Assets. The Pledgors shall be liable for any claims, actions, obligations, losses, damages, injuries, liabilities, costs and expenses, including taxes, arising out of or relating to the Pledged Assets and, in connection with the foregoing events, to act in the manner provided, inter alia, in subitem (a), items i and vii, of Clause Fourth.
(e) Absolute Rights. The rights and remedies of Pledgee under this Agreement are absolute and unconditional, regardless of the creation, perfection, substitution, release or failure to perfect any other security or any release, modification or waiver, or consent with respect to any security, with respect to the payment and performance of all or any of the Secured Obligations; any single or partial exercise of such rights, remedies, remedies or powers shall not preclude any other present or future exercise thereof.
(f) Cumulative Rights. (i) The Pledged Collateral pursuant to this Indenture shall remain in full force and effect whether or not the Pledgors or any other Person, on this date or at any time thereafter, grant any security interest in respect of the payment and performance of all or any portion of the Secured Obligations; and (ii) the rights and remedies of the Pledgee and the Secured Parties under this Indenture or under the other Note Issuance Documents (y) are cumulative and in addition to, and not exclusive of, any rights, remedies or remedies available to the Pledgee and/or any Secured Party under applicable law or the provisions of this Indenture and/or the other Note Issuance Documents; and (z) are not conditioned upon or contingent upon the exercise by the Pledgee and/or any Secured Party of any of its rights, actions or remedies under this Agreement and/or the other Note Issuance Documents against any of the Pledgors or any other Person.
Sixth. Event of Default. In the event of the occurrence and continuance of an Event of Default, (i) any and all rights of the Pledgors under paragraph (a) of Clause Fifth shall automatically cease and terminate; provided, however, that all the obligations of the Pledgors shall remain in full force and effect and shall be performed exclusively by the Pledgors, and (ii) any and all rights arising out of or relating to the Pledged Assets shall be exercised exclusively by the Pledgee in accordance with the provisions of this Agreement and in a manner consistent with the applicable provisions of the Indenture, (iii) the Pledgee shall have the exclusive right to collect and receive any and all proceeds, payments, distributions or other amounts or consideration derived or resulting from, or
15
related to, the Pledged Assets, and apply them to the payment of the Guaranteed Obligations in accordance with the Note Issuance Documents; and (iv) the Pledgee shall have the right to enforce the security interest over the Pledged Assets in accordance with the provisions of Clause Seventh of this Agreement, and to exercise its rights in any other manner as provided by Law.
Seventh. Execution.
(a) The Pledgors hereby expressly and irrevocably authorize the Pledgee, in the event of an Event of Default, to foreclose on the Pledged Assets and to initiate the extrajudicial or judicial foreclosure proceeding in accordance with the applicable provisions of Book Five, Title Three Bis, Chapters I and/or II of the Commercial Code (Código de Comercio), as the case may be, in order to obtain payment of the Guaranteed Obligations in full and to seek delivery and physical possession of the Pledged Assets by means of such proceeding.
(b) Pursuant to the provisions of Articles 1414 bis and 1414 bis 17 of the Commercial Code (Código de Comercio) and Articles 361, 362 and 363 of the Law, the Parties hereby agree that for purposes of valuation of the Pledged Assets, the Pledgors hereby expressly and irrevocably authorize the Pledgee, so that, at the exclusive cost of the Pledgors, it may obtain an appraisal of the Pledged Assets prepared by the Mexican credit institution or appraisal firm of recognized prestige in Mexico designated for such purposes by the Pledgee, whose fees and expenses shall be paid by the Pledgors.
(c) The Pledgors hereby xxxxx and agree that they shall perform (and cause the Trustee to perform) any and all acts and/or initiate any and all proceedings that may be necessary to facilitate the foreclosure and sale of the Pledged Assets in accordance with applicable law. The Pledgors further undertake to perform or cause to be performed any other acts that may be necessary to expedite the sale or sales of all or any part of the Pledged Assets, and to execute and execute (and cause the Trustee to execute and execute) any documents and take any other actions and measures that the Pledgee may deem necessary or advisable for such sale to be made in compliance with applicable law. In addition, the Pledgors expressly agree and consent that all cash and/or proceeds derived from the sale of the Pledged Assets shall be held and applied by the Pledgee for the payment of the Secured Obligations in accordance with applicable law and in the order required under the Note Issuance Documents. For purposes of clarity, the Pledgee shall have no obligation to question or investigate the sufficiency of any amounts received by it with respect to the Pledged Assets.
In addition to the provisions of the Note Documents, any amounts resulting from the sale of any of the Pledged Assets shall be applied by the Pledgee in the order provided in the Note Documents, but in advance to the payment of reasonable and documented taxes, fees and expenses incurred by the Pledgee (or the Secured Parties) arising from the sale of the Pledged Assets; it being understood that, if the amounts obtained as a result of a sale pursuant to this Clause Seventh are insufficient, the Pledgors shall pay such taxes, fees and expenses.
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Eighth. Capacity of the Collateral Agent. As a predicate to the willingness of the Pledgee and the Secured Parties to enter into the Note Issuance Documents to which each is a party, the Pledgors hereby expressly and irrevocably (i) acknowledge that the Pledgee, in its capacity as Collateral Agent (or any successor agent duly appointed pursuant to the Note Issuance Documents), has the requisite appointments, legal capacity and powers to act for the account and for the benefit of the Secured Parties, for all matters relating to or in connection with this Agreement, either directly or through its agents; and (ii) waive their rights to bring or institute any action seeking to challenge the existence, appointment, legal or other capacity and authority of the Pledgee to act for and on behalf of the Secured Parties for all matters arising out of or relating to this Agreement in accordance with the terms of this Agreement and the other Note Issuance Documents. In connection with the performance of its obligations and the exercise of its rights under this Indenture, the Collateral Agent shall enjoy all the rights, privileges and benefits set forth in the Indenture, including the right to request instructions from the Indenture Trustee or the Secured Parties to perform any acts required to be performed by it under this Indenture. In the event of a conflict between the provisions of the Indenture and this Agreement with respect to the Colaterall, the provisions of the Indenture with respect to the performance of the Collateral Agent shall prevail.
Ninth. Taxes and Expenses.
(a) All taxes, costs, expenses, reasonable and documented fees, costs and/or commissions arising out of the negotiation, preparation, drafting, execution and registration of this Agreement, and in connection with any amendment hereto, as well as for any action, contract, document, instrument or notice taken, drafted, executed or served pursuant to this Agreement, including without limitation, notary public fees and recording fees and expenses, as well as the reasonable and documented fees and disbursements of counsel to the Pledgee and the Secured Parties, as well as any reasonable and documented costs and expenses incurred by Pledgee and any of the Secured Parties in the performance of their obligations, and any and all costs and expenses incurred by Pledgee and any of the Secured Parties in the exercise of their rights under this Agreement and in any enforcement proceedings hereunder, shall be borne solely and entirely by the Pledgors, and Pledgee and the Secured Parties shall have no liability whatsoever with respect thereto.
(b) In the event that, for any reason, the Pledgee pays any such taxes, costs, expenses, fees and/or commissions, the Pledgors shall, within 5 (five) Business Days following the date on which they receive the Pledgee’s request, reimburse the Pledgee for the amount of such taxes, costs, expenses, fees and/or commissions (including legal counsel fees and expenses) incurred by the Pledgee , together with any additional amounts necessary for the Pledgee to receive the corresponding resources without considering any taxes it would have been obliged to deliver.
(c) Any amounts payable to the Pledgee by the Pledgors pursuant to this Clause Ninth shall be part of the Secured Obligations secured by the Pledged Collateral.
Tenth. Assignments.
(a) The rights and obligations under this Agreement may not be assigned or transferred by the Pledgors without the prior written consent of the Pledgee.
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(b) The Pledgee may assign or transfer, in whole or in part, its rights under this Agreement upon simple written notice to the Pledgors, but without requiring their consent to such assignment or transfer, provided that such assignment or transfer is permitted under the Note Issuance Documents. The Pledgors agree to cooperate in good faith and in a reasonable manner with the Pledgee in connection with any assignment, transfer, sale and/or participation of the Pledgee under this Agreement in accordance with the terms of the Note Issuance Documents. In addition, at the time any Pledgor receives a notice of assignment from the Pledgee, the relevant Pledgor shall perform any other act as may be necessary to maintain the validity and perfection of the pledge created by this Agreement.
Eleventh. Novation; Modifications; Waivers. Neither the execution of this Agreement nor the creation of the Pledged Collateral contemplated herein shall constitute novation, modification or payment of the Guaranteed Obligations.
This Agreement may only be amended by the written consent of the Pledgors and the Pledgee.
Any waiver of any provision of this Agreement, and any consent to any deviation by the Pledgors from the terms of this Agreement, shall be valid and effective only if in writing and duly executed by the Pledgee; provided that, in any event, such waiver or consent shall be effective only with respect to the instance and for the specific purpose for which it was given. The lack of, or delay in the exercise of any rights, powers or privileges, or the performance by the Pledgee of any obligation to do or not to do hereunder, shall in no event constitute a waiver thereof; nor shall the partial or sole exercise of any rights of the Pledgee preclude the future exercise of the same or any other rights of the Pledgee.
Twelfth. Notices. All notices, claims and requests submitted or required to be submitted by the Parties pursuant to or in connection with this Agreement shall be in writing. All notices shall be deemed to have been duly given when delivered: (i) personally, with acknowledgment of receipt; or (ii) by internationally recognized courier service, with acknowledgment of receipt; or (iii) via e-mail, followed by specialized courier or personal delivery, with acknowledgment of receipt. All notices and notifications shall be delivered at the following addresses, and shall be deemed to have been effectively delivered upon receipt or refusal of delivery, as indicated on the acknowledgment of receipt or receipt of such courier service.
To Pledgors:
Paseo de la Reforma Av. Xx. 000, 00xx xxxxx
Colonia Xxxxxxxxxx, zip code 06500
Mexico City, Mexico
Telephone: [***]
Attention: CEO - Xxxxxx Xxxxxx Xxxxxxxxx and CFO - Xxxxxxx Xxxxxx Xxxxxxx Xxxxx
E-mails: [***]
With copy, without constituting notification, to:
Xxxxx Xxxxxxxx, S.C.
Xxxxxxxxx Xxxxxx Xxxxx Xxxxxxx 00, 00xx xxxxx
Lomas de Chapultepec, C.P. 11000
Mexico City, Mexico
Telephone: [***]
Attention: Xxxxxxxxx Xxxxx Xxxxxxx / Xxxxxxxx Xxxxxxx Xxxxxx
E-mails: [***]
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To the Pledgee:
UMB Bank, N.A., as Collateral Agent
0 Xxxxx Xxxxxxxx, Xxxxx 000
St. Xxxxx, MO 63102
Telephone: [***]
Attention: Xxxxxx Xxxxxx
E-mail: [***]
With copy, not constituting notification, to:
Holland & Knight México, S.C.
Xxxxx xx xx Xxxxxxx 000, 00xx xxxxx
Xxxxxx, Xxxxxxxxxx 06600
Mexico City, Mexico
Attention: Xxxxxxxx Xxxxx Xxxxxxx / Xxxx Xxxxxxxx Xxxx
E-mail: [***]
and
Xxxxx, Xxxxxxx and Xxxxxxx, S.C.
Xxxxxxxx Xx. 00 00xx xxxxx
Xxxxxx Xxxxxxx, Xxxxxx del Rey, 11040
Mexico City, Mexico
Attention: Xxxx X. Xxxxxxx Xxxxxxxxx
E-mail: [***]
As long as a change of address is not notified in accordance with the provisions of this Clause, any notification, notice or any other communication, whether judicial or extrajudicial, which is carried out at any of the addresses mentioned above, shall be fully effective.
Thirteenth. Additional Obligations. The Pledgors shall, at any time and from time to time, at their sole cost and expense, promptly execute and deliver (and cause the Trustee to execute and deliver) all instruments and/or documents, and take any actions that may be necessary or convenient, or that the Pledgee may request, in order to perfect, protect and/or maintain the Pledged Collateral in accordance with this Agreement and/or to protect and preserve the Pledged Assets (or any part thereof), and/or to enable the Pledgee to exercise and enforce its rights, actions and remedies under this Agreement in relation to the Pledged Assets or any part thereof, including without limitation, to take any action and/or to institute any and all proceedings that may be necessary in order to cause the Pledgee (for the benefit of the Secured Parties) to sell the Pledged Assets or any part thereof.
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Fourteenth. Independence of Provisions. If any provision of this Agreement is declared void or unenforceable by a competent court, such provision shall be considered separately from the other provisions of this Agreement so as not to affect the validity of the other provisions of this Agreement.
Fifteenth. Exhibits. All documents attached to this Agreement or referred to herein are an integral part of this Agreement as if they were inserted.
Sixteenth. Headings. The headings of each Clause of this Agreement are for reference purposes only and shall have no effect on the meaning or interpretation of such Section or this Agreement.
Seventeenth. Copies. This Agreement shall be executed in several copies, which, together, shall be deemed to be a single agreement, and shall be effective until such time as one (1) or more of said copies is executed by each of the Parties and delivered to the other party.
Eighteenth. Jurisdiction, Applicable Law. This Agreement shall be construed in accordance with the applicable laws of Mexico, and for all matters relating to the interpretation and performance of this Agreement and any action or proceeding arising out of or related to this Agreement, the Parties hereby expressly and irrevocably submit to the jurisdiction of the competent courts of Mexico City, Mexico, and expressly and irrevocably waive their rights to any other jurisdiction that may be applicable to them by virtue of their present or future domiciles or for any other reason.
IN VIRTUE OF THE FOREGOING, the Parties sign and execute this Agreement, on November 14, 2024.
[Signature page follows]
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[Translation for informational purposes only]
CERTAIN IDENTIFIED INFORMATION HAS BEEN EXCLUDED FROM THIS EXHIBIT PURSUANT TO ITEM 601(B)(10) OF REGULATION S-K UNDER THE SECURITIES ACT OF 1933, AS AMENDED, BECAUSE IT IS BOTH NOT MATERIAL AND IS THE TYPE THAT THE REGISTRANT TREATS AS PRIVATE OR CONFIDENTIAL. INFORMATION THAT WAS OMITTED HAS BEEN NOTED IN THIS DOCUMENT WITH A PLACEHOLDER IDENTIFIED BY THE MARK “[***]”.
IN VIRTUE OF THE FOREGOING, the Parties sign and execute this Agreement, this 14th day of November, 2024.
Pledgors
Aerovías de México, S.A. de C.V. | ||||||||
By: |
/s/ Xxxxxxx Xxxxx Xxxxx |
By: |
/s/ Xxxxxx Xxxxxxxx Xxxxxxxx | |||||
Name: Xxxxxxx Xxxxx Xxxxx |
Name: Xxxxxx Xxxxxxxx Xxxxxxxx | |||||||
Position: Legal representative |
Position: Legal representative |
Aerolitoral, S.A. de C.V. | ||||||||
By: |
/s/ Xxxxxxx Xxxxx Xxxxx |
By: |
/s/ Xxxxxx Xxxxxxxx Xxxxxxxx | |||||
Name: Xxxxxxx Xxxxx Xxxxx |
Name: Xxxxxx Xxxxxxxx Xxxxxxxx | |||||||
Position: Legal representative |
Position: Legal representative |
Parties sign and execute this Agreement, on November 14, 2024.
The Pledgee
UMB Bank, National Association, in its capacity as Collateral Agent, on behalf of and for the benefit of the Secured Parties | ||
By: /s/ Xxxxxxx Xxxxx Xxxxxxx | ||
Name: Xxxxxxx Xxxxx Xxxxxxx | ||
Position: Legal Representative |