EXHIBIT 99.23
[Letterhead of Argyll Equities]
PLEDGE AGREEMENT
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This 6th day of April 2005
NOW COMES: Xxxxxx Xxxxxxx Xxxxxxx on behalf of Servicios Directivos Servia,
S.A. de C.V., whose address of record is Xx. Xxxxx xx xx Xxxxxxx 000, Xxx. Xxxxx
xx Xxxxxxxxxxx, 00000 M xico, D.F. (hereinafter the "Pledgor") and Argyll
Equities, LLC, a limited liability company chartered in the State of Texas,
having a principal place of business at 0000 Xxxxx Xxxx Xxxxxx, Xxxxxx, XX 00000
(hereinafter the "Lender").
WHEREAS: The Pledgor and the Lender are entering into a Loan Agreement (as it
may be amended, supplemented, restated or otherwise modified from time to time)
as of the date hereof providing for the making of a Loan to the Pledgor in the
amount, and subject to the terms and conditions, specified in the Loan
Agreement.
The Pledgor is the direct legal and beneficial owner of Five Hundred Eighty Two
Thousand, Three Hundred and Thirty Seven (582,337) ADR's of GRUPO TMM SA
(NYSE:TMM) common stock.
The execution and delivery of this Pledge Agreement and the pledge by the
Pledgor to the Lender of his rights in the Collateral, as hereinafter defined,
constitute conditions precedent to the obligation of the Lender to make a Loan
to the Pledgor pursuant to the terms of the Loan Agreement.
NOW THEREFORE: In consideration of the premises, and in order to induce the
Lender to execute and deliver the Loan Agreement and to make and maintain a loan
there under, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Pledgor hereby agrees as
follows:
SECTION 1. DEFINITIONS: Capitalized terms that are not defined herein have
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the respective meanings ascribed them in the Loan Agreement and, in addition,
the following terms have the following meanings:
1.1 "Amount Realized" has the meaning specified in Section 10.
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1.2 "Loan Agreement" has the meaning specified in Recital A.
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1.3 "Loan" has the meaning specified in Recital A.
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1.4 "Obligations" means all indebtedness and other liabilities and
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obligations of the Pledgor to the Lender of every kind, nature and
description, present or future, direct or indirect, secured or
unsecured, joint or several, absolute or contingent, matured or not,
in any currency, due or to become due, now existing or hereafter
arising, regardless of how they arise or by what agreement or
instrument or whether evidenced by any agreement or instrument and
whether as principal or surety, including, without limitation, (i) the
payment in full when due of the Loan and all interest thereon, the
payment of all amounts payable by the Pledgor to the Lender under the
terms of the Loan Agreement, the Note or any other Loan Document and
the payment and performance in full when due of all other liabilities
and obligations of the Pledgor to the Lender under the Loan Agreement,
the Note and the other Loan Documents and all notes and other
evidences or indebtedness issued in exchange or substitution for the
Note and (ii) the observance and performance by the Pledgor of the
obligations to be observed and performed by it hereunder or under any
related agreement, instrument or document.
1.5 "Pledge" has the meaning specified in Section 2.
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1.6 "Pledged Collateral" has the meaning specified in Section 2.
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1.7 "Pledged ADR's" has the meaning specified in Section 2(a).
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1.8 "Uniform Commercial Code" means the Uniform Commercial Code as adopted
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and in effect from time to time in the State of New York.
1.9 Gender and Number. Words used herein, regardless of the number or
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gender specifically used, shall be deemed and construed to include any
other number, singular or plural and any other gender, masculine,
feminine, or neuter, as the context requires.
1.10 Headings: The headings used in this Pledge are solely for the
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convenience of reference, and are not part of this Agreement, and are
not to be considered in construing or interpreting this Agreement.
1.11 References: Unless otherwise specified, the words "hereof," "herein,"
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"hereunder" and other similar words refer to this Pledge Agreement as
a whole and not just to the Section, subsection or clause in which
they are used; and the words "this Agreement" refer to this Pledge
Agreement, as amended, modified or supplemented from time to time.
Unless otherwise specified, references to Sections, Recitals,
Schedules and Exhibits are references to Sections of, and Recitals,
Schedules and Exhibits to, this Agreement.
1.12 Statements as to Knowledge: Any statements, representations or
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warranties which are based upon the knowledge of Borrower shall be
deemed to have been made after due inquiry with respect to the matter
in question.
SECTION 2. PLEDGE. The Pledgor hereby pledges, hypothecates and assigns to
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the Lender, and hereby grants to the Lender a security interest in and all
right, title and interest in and to (the "Pledge"), the following described
property, whether now owned by the Pledgor or hereafter acquired and whether now
existing or hereafter created (hereinafter the "Pledged Collateral"):
(a) all of the pledged ADR's of capital stock of GRUPO TMM SA
(NYSE:TMM) ["Issuer"] described in Schedule I together with the
certificates evidencing such ADR's (collectively, the "Pledged
ADR's");
(b) all cash, instruments, securities or other property representing
a dividend or other distribution on any of the Pledged ADR's, or
representing a distribution or return of capital upon or in
respect of the Pledged ADR's, or resulting from a split-up,
revision, reclassification or other like change of the Pledged
ADR's or otherwise received in exchange therefor, and any
warrants, rights or options issued to the holders of, or
otherwise in respect of, the Pledged ADR's;
(c) all proceeds of any of the property of the Pledgor described in
subsections (a) and (b) above of this Section 2 and, to the
extent related to any property described in said clauses or such
proceeds, all books, correspondence, records, and other
documents.
SECTION 3. PLEDGE ABSOLUTE. The Pledgor hereby agrees that this Agreement
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shall be binding upon the Pledgor and that the Pledge hereunder shall be
irrevocable and unconditional, irrespective of the validity, legality or
enforceability of the Loan Agreement, the Note, any other Loan Document or any
of the Obligations, the absence of any action to enforce the same, the waiver or
consent by the Lender with respect to any provision thereof, the recovery of any
judgment against the Pledgor, or any action to enforce the same or any other
similar circumstances. The Pledgor hereby waives diligence, presentment, demand
of payment, filing of claims with a court in the event of merger or bankruptcy
of the Pledgor, any notice to require a proceeding first against the Pledgor or
any other Person, protest or notice with respect to the Note or any other
promissory notes or evidences of indebtedness secured hereby or the indebtedness
evidenced thereby and all demands whatsoever, and covenants that this Agreement
will remain in full force and effect so long as any Obligations remain unpaid.
SECTION 4. REPRESENTATIONS AND WARRANTIES. The Pledgor hereby represents
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and warrants, to his knowledge, as follows:
4.1 The Pledgor is not in violation of any applicable United States
federal or state, or any applicable law or regulation or in default
with respect to any order, writ, injunction or decree of any court, or
in default under any order, license, regulation or demand of any
governmental agency, which violation or default could affect the
validity or enforceability of this Agreement or any related document
or prevent the Pledgor from performing any of his obligations
hereunder or under any related documents.
4.2 The execution, delivery and performance of this Agreement by the
Pledgor, the Pledge of the Pledged Collateral pursuant hereto and the
incurrence and performance of the obligations provided for herein will
not (1) violate any law or regulation applicable to the Pledgor or any
of his assets, (2) violate or constitute (with due notice or lapse of
time or both) a default under any provision of any indenture,
agreement, license or other instrument to which the Pledgor is a party
or by which he or any of his properties may be bound or affected, (3)
violate any order of any court, tribunal or governmental agency
binding upon the Pledgor or any of his properties or (4) result in the
creation or imposition of any lien or encumbrance of any nature
whatsoever upon any assets or revenues of the Pledgor (except liens in
favor of the Lender hereunder).
4.3 No authorizations, approvals and consents of, and no filings and
registrations with, any governmental or regulatory authority or agency
or any other Person are necessary for the execution, delivery or
performance by the Pledgor of this Agreement or for the validity or
enforceability hereof.
4.4 This Agreement constitutes the legal, valid and binding obligation of
the Pledgor, enforceable against the Pledgor in accordance with its
terms.
4.5 The Pledgor is the sole record and beneficial owner of the Pledged
ADR's. The Pledged ADR's are not subject to any liens, security
interests, charges or encumbrances of any kind or nature, other than
the liens created hereunder. The Pledgor has legal title to the
Pledged ADR's and the Pledgor has good and lawful authority to Pledge
all of the Pledged ADR's in the manner hereby done or contemplated.
The Pledged ADR's are not subject to any contractual or other
restriction upon the transfer thereof, and no right, warrant or option
to acquire any of the Pledged ADR's exists in favor of any other
Person. The Pledged
ADR's are freely tradable and transferable securities and do not bear
any restrictive legend. The Pledgor has taken all necessary action to
create and perfect a security interest in the Pledged ADR's in favor
of the Lender, and the Lender has acquired a first and prior perfected
security interest therein.
4.6 When any item of Pledged Collateral other than the Pledged ADR's is
pledged hereunder, (i) the Pledgor will be the owner of such item of
Pledged Collateral free and clear of any liens, security interests,
charges or encumbrances of any kind of nature (other than those
created hereunder) and (ii) the Pledgor will have legal title to such
item of Pledged Collateral and the Pledgor will have good and lawful
authority to Pledge and deliver such item of Pledged Collateral in the
manner hereby contemplated.
4.7 Any information, schedules, exhibits and reports furnished by the
Pledgor to the Lender in connection with the negotiation and
preparation of this Agreement did not contain any omissions or
misstatements of fact which would make the statements contained
therein misleading or incomplete in any material respect.
SECTION 5. COVENANTS. The Pledgor hereby agrees that, unless the Lender
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shall otherwise agree in writing, until the payment in full of the Obligations:
5.1 The Pledgor (i) shall defend his title to the Pledged Collateral
against all claims and demands whatsoever that are adverse to the
Lender, (ii) shall not create, incur, assume or suffer to exist any
liens, security interests, charges or encumbrances of any kind or
nature (other than those created hereunder) in any Pledged Collateral
and (iii) shall not sell, assign, transfer, exchange or otherwise
dispose of, or grant any option or other right with respect to, any
Pledged ADR's.
5.2 The Pledgor shall, upon demand of the Lender, do the following:
furnish further assurances of title, execute any written agreement or
do any other act(s) necessary to effectuate the purposes and
provisions of this Pledge Agreement, execute any instrument, document
or statement required by law or otherwise in order to perfect,
continue or preserve the security interests of the Lender in the
Pledged Collateral and pay all filing or other costs incurred in
connection therewith.
5.3 Upon the Lender's request and from time to time thereafter, the
Pledgor will make, execute, acknowledge and deliver, file and record
in the proper filing and recording places, all such instruments
including, without limitation, appropriate financing statements and
duly executed blank stock powers and other instruments of transfer or
assignment satisfactory in form and substance to the Lender, and take
all such action, as the Lender may reasonably deem necessary or
advisable to carry out the intent and purpose of this Pledge Agreement
and to establish and maintain in favor of the Lender a valid,
enforceable and perfected security interest in the Pledged Collateral
and the other rights contemplated hereby that are superior and prior
to the rights and security interests of all other persons or entities.
Without limiting the generality of the foregoing sentence, (i) the
Pledgor will, from time to time upon the Lender's request, cause all
relevant books and records, if any, to be marked with such legends or
segregated in such manner as the Lender may specify, and take or cause
to be taken such other action and adopt such procedures as the Lender
may specify, to give notice of, and to perfect, the security interests
created hereby in the Pledged Collateral.
5.4 The Pledgor shall procure, pay for, affix to any and all documents and
cancel any documentary tax stamps required by, and in accordance with,
applicable law and will indemnify the Lender, and hold the Lender
harmless against, any liability (including interest and penalties) in
respect of such documentary stamp taxes.
SECTION 6. APPOINTMENT OF AGENTS; REGISTRATION IN NOMINEE NAME. The Lender
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shall have the right to appoint one or more agents for the purpose of retaining
physical possession of the certificates representing or evidencing the Pledged
Collateral, which may be held (in the discretion of the Lender) in the name of
the Pledgor, endorsed or assigned in blank or in favor of the Lender, or in the
name of the Lender or any nominee or nominees of the Lender or any agent
appointed by the Lender. In addition to all other rights possessed by the
Lender, the Lender may, from time to time, at the Lender's sole discretion and
without notice to the Pledgor, take any or all of the following actions: (a)
transfer all or any part of the Pledged Collateral into the name of the Lender
or its nominee, with or without disclosing that such Pledged Collateral is
subject to the lien and security interest created hereby; (b) take control of
any proceeds of any of the Pledged Collateral; and (c) exchange certificates or
instruments representing or evidencing Pledged Collateral for certificates or
instruments of smaller or larger denominations for any purpose consistent with
its rights under this Pledge Agreement; provided that all powers of the Lender
under this Section 6 shall be subject to the rights of the Pledgor under Section
9 hereof to the extent that the exercise of such powers represents a sale of an
item of Pledged Collateral. Pledgor further acknowledges and agrees that as
long as any portion of the principal balance of the Loan remains due and
outstanding, Lender may take any and all action with respect to the Pledged
Collateral as Lender, in its sole and absolute discretion, may deem to be
advisable, including, without limitation, utilizing the Pledged Collateral as
Collateral for hedging transactions, transferring the Pledged Collateral within
or among one or more Depository Accounts, creating and trading derivative
instruments that are backed, in whole or in part, by the Pledged Collateral, and
altering or revising the owner of record of the beneficial interest or any other
interest in the Pledged Collateral. Lender is under no obligation to sequester
the Pledged Collateral apart from any other assets of the Lender, and Lender may
combine the Pledged Collateral, in whole or in part, with any other assets.
SECTION 7. VOTING RIGHTS; DIVIDENDS, Etc.
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7.1 So long as no Event of Default has occurred and is continuing, the
Pledgor shall be entitled to exercise any and all voting rights and
powers relating or pertaining to the Pledged Collateral or any part
thereof for any purpose not inconsistent with the terms of this Pledge
Agreement.
7.2 Any and all stock dividends, liquidating dividends, distribution of
property, redemption or other distributions made on or in respect of
the Pledged Collateral, whether resulting from a subdivision,
combination or reclassification of the outstanding capital stock of
the issuer of the Pledged Collateral or received in exchange for
Pledged Collateral or any part thereof or as a result of any merger,
consolidation, acquisition or other exchange of assets to which the
Pledgor may be a party or otherwise, and any and all cash and other
property received in payment of the principal of or in redemption of
or in exchange for any Pledged Collateral (either at maturity, upon
call for redemption or otherwise), shall become part of the Pledged
Collateral and, if received by the Pledgor, shall be held in trust for
the benefit of the Lender and shall forthwith be delivered to the
Lender or its designated agent (accompanied by proper instruments of
assignment and/or stock powers executed by the Pledgor in accordance
with the Lender's instructions) to be held subject to the terms of
this Pledge Agreement.
7.3 Upon the occurrence of an Event of Default and so long as such Event
of Default shall continue, at the option of the Lender (subject to
applicable law), all rights of the Pledgor to exercise the voting
rights and powers which the Pledgor is entitled to exercise pursuant
to Section 7(a) shall cease, and all such rights shall thereupon
become vested in the Lender, and the Lender shall have the sole and
exclusive right and authority to exercise such voting and/or
consensual rights and powers. Any and all cash and other property paid
over to or received by the Lender pursuant to the provisions of this
Subsection 7.3 shall be retained by the Lender as part of the Pledged
Collateral, and shall be applied in accordance with the provisions
hereof.
7.4 Concurrently with his execution of this Agreement, the Pledgor shall
execute and deliver to the Lender an irrevocable proxy to vote the
Pledged ADR's, substantially in the form of Exhibit A. After the
occurrence and during the continuance of an Event of Default, the
Pledgor shall deliver to the Lender such further evidence of such
irrevocable proxy or such further irrevocable proxies to vote any
ADR's of stock constituting part of the Pledged Collateral as the
Lender may request.
7.5 The Lender at any time may extend or renew for one or more periods
(whether or not longer than the original period) the Obligations, and
grant releases, compromises or indulgences with respect to the
Obligations or any extension or renewal thereof or any security
therefor or to any obligor hereunder or there under without impairing
the Lender's rights, or releasing the Pledgor from its obligations,
hereunder.
SECTION 8. RIGHTS AND REMEDIES.
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8.1 The Lender may, without being required to give any notice to the
Pledgor, apply the cash (if any) then held by it pursuant to Section 6
or 7 to the ratable payment in full of the Obligations and all other
indebtedness referred to in Section 10 in the order and manner
specified in Section 10. The Lender may sell the Pledged Collateral,
or any part thereof, in accordance with Section 9 and shall apply the
proceeds of such sale to the ratable payment in full of the Obligation
and all other indebtedness referred to in Section 10 in the order and
manner specified in Section 10.
8.2 The Pledgor agrees that, without notice to or further assent by the
Pledgor, the liability of the Pledgor or any other Person for or upon
any of the Obligations may, from time to time, in whole or in part, be
renewed, extended, modified, accelerated, compromised or released by
the Lender, as the Lender may deem advisable, and that the Pledged
Collateral or other Collateral or liens securing any of the
Obligations may, from time to time, in whole or in part (subject, in
the case of the Pledged Collateral, to the provisions of this
Agreement), be exchanged, sold or surrendered by the Lender, as the
Lender may deem advisable, all without impairing, abridging, affecting
or diminishing this Agreement or the rights of the Lender hereunder or
with respect to the Pledged Collateral.
SECTION 9. SALE OF PLEDGED COLLATERAL.
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9.1 As an alternative to exercising the power of sale herein conferred
upon it, the Lender may proceed by a suit or suits at law or in equity
to foreclose this Pledge Agreement and to sell the Pledged Collateral,
or any portion thereof, pursuant to a judgment or decree of a court or
courts of competent jurisdiction.
9.2 In connection with any disposition of the Pledged Collateral, in
accordance herewith, any such sale or other disposition of any Pledged
Collateral in reliance on such advice shall be deemed to be
commercially reasonable under the Uniform Commercial Code and
otherwise proper.
9.3 The Lender shall be under no obligation to sell or otherwise dispose
of any Pledged Collateral, or to cause any Pledged Collateral to be
sold or otherwise disposed of, by reason of any diminution in the fair
market value thereof, and the failure of the Lender to do so shall
under no circumstances be deemed a failure to exercise reasonable care
in the custody or preservation of the Pledged Collateral.
9.4 In addition to the rights and remedies granted to the Lender in this
Pledge Agreement and in any other instrument or agreement securing,
evidencing or relating to any of the Obligations, the Lender shall
have all the rights and remedies of a secured party under the Uniform
Commercial Code. The Lender shall have the right in its sole
discretion to determine which rights, security, liens, guaranties or
remedies it shall retain, pursue, release, subordinate, modify or
enforce, without in any way modifying or affecting any of the other of
them or any of the Lender's rights hereunder.
SECTION 10. APPLICATION OF PROCEEDS OF COLLATERAL SALE.
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10.1 The Lender shall apply all cash held by it pursuant to Section 6 or 7
with respect to the Pledged Collateral and the proceeds of the sale of
any Pledged Collateral (such cash and proceeds being referred to
collectively as the "Amount Realized") as follows:
(a) the payment to or reimbursement of Lender for any fees and
expenses for which it is entitled to be paid or reimbursed
pursuant to any of the provisions of the Loan Documents; then
(b) the payment of any accrued and unpaid interest of the Note; and
then
(c) for such use of the Lender as it may elect.
10.2 Anything herein to the contrary notwithstanding, (but except as
provided below), the Lender agrees, for itself, its representatives,
successors, endorsees and assigns, that: (i) neither the Pledgor, nor
any representative, successor, assign or affiliate of the Pledgor,
shall be personally liable for the Obligations; and (ii) in the event
of default hereunder, the Lender (and any such representative,
successor, endorsee or assignee) shall look to the property encumbered
by this Agreement anther the other instruments of security that secure
the Obligations for payment of the Obligations, and will not make any
claim or institute any action or proceeding against the Pledgor (or
any representatives, successors, assigns or affiliates of the Pledgor)
for any deficiency remaining after collection upon the Pledged
Collateral. Provided however, and notwithstanding the foregoing, the
Pledgor is and will remain personally liable for any deficiency
remaining after collection of the Pledged Collateral to the extent of
any loss suffered by Lender, or its representatives, successors,
endorsees or assigns, if such loss is caused by Pledgor based in whole
or in part upon:
(a) Damages arising from any fraud, misrepresentations or the breach
of any covenant or agreement; and/or;
(b) Damage to the pledged Collateral resulting from gloss negligence
or intentional acts; and/or
(c) Failure to pay taxes or other property-related liens; and/or
(d) Damages arising from the failure to comply with any and all laws.
SECTION 11. COMPLIANCE WITH SECURITIES LAWS.
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11.1 The Pledgor shall execute and deliver to the Lender concurrently with
the Pledgor's execution of this Agreement an undertaking substantially
in the form of Exhibit B.
11.2 The Pledgor further agrees to do or cause to be done all such other
acts and things as may be necessary to make any sale or the
disposition of any portion or all of the Pledged ADR's by the Lender
hereunder valid and binding and in compliance with any and all
applicable laws, regulations, orders, writs, injunctions, decrees or
awards of any and all courts, arbitrators or governmental
instrumentalities, domestic or foreign, having jurisdiction over any
such sale or sales or dispositions, all at the Pledgor's sole expense.
The Pledgor further agrees that a breach of any of the covenants
contained in this Section 11 will cause irreparable injury to the
Lender, that the Lender has no adequate remedy at law in respect of
such breach and agrees that each and every covenant contained in this
Section 11 shall be specifically enforceable against the Pledgor, and
the Pledgor hereby waives and agrees not to assert any defenses
against an action for specific performance of such covenants, except
for a defense that all of the Obligations have been paid in full or
that the Lender has released the Pledged ADR's.
SECTION 12. INDEMNIFICATION. The Pledgor hereby agrees to indemnify the
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Lender and each of its employees, officers, directors, attorneys and agents
(each, an "Indemnity") for any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind and nature whatsoever which may be imposed on, incurred by or
asserted against such Indemnities in any way relating to or arising out of this
Agreement or any other documents contemplated by or referred to herein or the
transactions contemplated hereby or the enforcement of any of the terms hereof;
provided, however, that the Pledgor shall not be liable for any of the foregoing
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to the extent they arise from the gross negligence or willful misconduct of the
Lender or failure by the Lender to exercise reasonable care in the custody and
preservation of the Pledged Collateral as provided in Section 15.
SECTION 13. LENDER APPOINTED ATTORNEY-IN-FACT. The Pledgor hereby appoints
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the Lender as the Pledgor's attorney-in-fact, with full power of substitution,
for the purpose of carrying out the provisions of this Agreement and taking any
action and executing any instrument that the Lender may deem necessary or
advisable to accomplish the purposes hereof, which appointment is irrevocable
and coupled with an interest. Without limiting the generality of the foregoing,
the Lender shall have the right and power to
sign the name of the Pledgor to any financing statements, continuation
statements or other documents under the Uniform Commercial Code relating to the
Pledged Collateral, and, to the extent permitted under Section 7, shall have the
right and power to receive, endorse and collect all checks and other orders for
the payment of money made payable to the Pledgor representing any dividend,
interest payment or other distribution payable or distributable in respect of
the Pledged Collateral or any part thereof and to give full discharge therefore.
SECTION 14. NO SUBROGATION. Notwithstanding any payment or payments made by
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the Pledgor hereunder, the receipt of any amounts by the Lender with respect to
the Pledged Collateral or any setoff or application of funds of the Pledgor by
the Lender, the Pledgor shall not be entitled to subrogate to any rights of the
Lender.
SECTION 15. LIMITATIONS ON LENDERS DUTY IN RESPECT OF COLLATERAL. Beyond
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the safe custody thereof, the Lender shall not have any duty as to any Pledged
Collateral in its possession or control or in the possession or control of any
agent or nominee of the Lender or any income thereon or as to the preservation
of rights against prior parties or any other rights pertaining thereto.
SECTION 16. NO WAIVER; CUMULATIVE REMEDIES. No course of dealing between
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the Pledgor and the Lender, no failure on the part of the Lender to exercise,
and no delay in exercising, any right, power or remedy hereunder shall operate
as a waiver thereof; nor shall any single or partial exercise of any such right,
power or remedy by the Lender preclude any other or further exercise thereof or
the exercise of any other right, power or remedy. All remedies hereunder are
cumulative and not exclusive of any other remedies provided by law, including
without limitation the rights and remedies or a secured party under the Uniform
Commercial Code.
SECTION 17. TERMINATION. This Agreement shall terminate when all of the
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Obligations have been paid in full, at which time the Lender shall reassign and
redeliver to the Pledgor, without recourse or warranty and at the sole expense
of the Pledgor, against receipt, the Pledged Collateral, together with
appropriate instruments of reassignment and release; provided, however, that
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this Agreement shall be reinstated if any payment in respect of the Obligations
is rescinded, invalidated, declared to be fraudulent or preferential or
otherwise required to be restored or returned by the Lender for any reason,
including without limitation by reason of the insolvency or bankruptcy of the
Pledgor or any other Person.
SECTION 18. ADDRESSES FOR NOTICE. All notices, requests, demands,
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instructions, directions and other communications provided for hereunder shall
be in writing and shall be mailed (by registered or certified mail, postage
prepaid) or delivered to the applicable party at the address specified for such
party on the first page of this Agreement or, as to any party, to such other
address as such party shall specify by a notice in mating to the other party
hereto. Each notice, request, demand, instruction, direction or other
communication provided for hereunder shall be deemed delivered (i) if by mail,
five business days after being deposited in the mail, addressed to the
applicable party at its address set forth above, (ii) if by hand or by overnight
courier, when delivered to the applicable party at such address.
SECTION 19. SEVERABILITY. Any provision of this Agreement that is
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prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render such
provision unenforceable in any other jurisdiction.
SECTION 20. FURTHER ASSURANCES. The Pledgor agrees to do such further
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reasonable acts and things, and to execute and deliver such additional
conveyances, assignments, agreements and instruments, as the Lender may at any
time request in connection with the administration or enforcement of this Pledge
Agreement (including, without limitation, to aid the Lender in the sale of all
or any part of the Pledged Collateral) or related to the Pledged Collateral or
any part thereof or in order better to assure and confirm unto the Lender
rights, powers and remedies hereunder. The Pledgor hereby consents and agrees
that any registrar or transfer agent for any of the Pledged Collateral shall be
entitled to accept the provisions hereof as conclusive evidence of the right of
the Lender to effect any transfer pursuant to Section 6, notwithstanding any
other notice or direction to the contrary heretofore or hereafter given by the
Pledgor or any other person to the Pledgor or to any such registrar to transfer
agent.
SECTION 21. BINDING AGREEMENT; ASSIGNMENT. This Agreement shall be binding
------------------------------
upon and inure to the benefit of the parties hereto and their respective
successors and assigns, except that the Pledgor shall not assign this Agreement
or any interest herein or in the Pledged Collateral or any part thereof, or
otherwise pledge, encumber or grant any option with respect to the Pledged
Collateral or any part thereof, without the prior written consent of the Lender.
The Lender may assign this Agreement and its rights and remedies hereunder in
whole or in part to any assignee of the Obligation or any portion thereof.
SECTION 22. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND SHALL
---------------
BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, UNITED STATES OF
AMERICA AS FURTHER DEFINED IN SECTION 23.
SECTION 23. Consent to Jurisdiction; Venue; Jury Trial Waiver. This
--------------------------------------------------------
Agreement shall be governed by and construed in accordance with the laws of the
State of Texas, United States of America applicable to the contracts between
residents of Texas that are to be wholly performed within such state. Borrower
hereby consents to the exclusive jurisdiction of the courts sitting in Xxxxxxx
County, Texas, United States of America, as well as to the jurisdiction of all
courts from which an appeal may be taken from the aforesaid courts, for the
purpose of any suit, action or other proceeding by any party to this Agreement,
arising out of or related in any way to this Agreement. Borrower hereby
irrevocably and unconditionally waives any defense of an inconvenient forum to
the maintenance of any
action or proceeding in any such court, any objection to venue with respect to
any such action or proceeding and any right of jurisdiction on account of the
place of residence or domicile of any party thereto. In addition, Borrower
consents to the service of process by United States certified or registered
mail, return receipt requested, or Federal Express or similar courier delivery
addressed to Borrower at the address provided herein. Borrower agrees that in
the event this Loan Agreement shall be successfully enforced by suit or
otherwise, Borrower will reimburse the Lender or holder or holders of the
Obligations, upon demand, for all reasonable expenses incurred in connection
therewith, including, without limitation, reasonable attorneys' fees and
expenses.
SECTION 24. WAIVER OF JURY TRIAL. THE PARTIES HERETO HEREBY WAIVE ANY RIGHT
---------------------
THEY MAY HAVE TO A TRIAL BY JURY OF ANY DISPUTE ARISING UNDER OR RELATING TO
THIS AGREEMENT, ANY INSTRUMENT OR DOCUMENT REFERRED TO HEREIN OR RELATED HERETO,
OR ANY ITEM OF PLEDGED COLLATERAL, AND AGREE THAT ANY SUCH DISPUTE SHALL BE
TRIED BEFORE A JUDGE SITTING WITHOUT A JURY.
SECTION 25. AMENDMENTS. No provision of this Agreement may be amended,
-----------
waived or modified, and (unless otherwise provided herein) no item of Pledged
Collateral may be released, except in a writing signed by the Pledgor and the
Lender.
SECTION 26. EXPENSES. The Pledgor hereby agrees to reimburse the Lender for
---------
the enforcement of the Lender's rights under this Agreement, the sale of the
Pledged Collateral or any part thereof and the collection of payments due under
or in respect of the Pledged Collateral and all amounts due under this
Agreement.
SECTION 27. WAIVER OF NOTICE OF ACCEPTANCE. The Pledgor hereby waives
-----------------------------------
notice of the making of any Loan or the issuance of the Note and notice from the
Lender of its acceptance of and reliance upon this Agreement.
SECTION 28. EXECUTION IN COUNTERPARTS. This Agreement may be executed in
----------------------------
any number of counterparts and by different parties on separate counterparts,
all of which when taken together shall constitute but one and the same
agreement.
IN WITNESS WHEREOF, the Pledgor has duly executed this Agreement as of the
date first above written.
/s/ Xxxxxx Xxxxxxx Xxxxxxx
-----------------------------------------
Xxxxxx Xxxxxxx Xxxxxxx on behalf of
Servicios Directivos Servia, S.A. de C.V.
GUARANTEE
---------
State of )
------------------------
) ss.
County of )
-----------------------
On _______________________________________ before me, Xxxxxx Xxxxxxx Xxxxxxx on
behalf of Servicios Directivos Servia, S.A. de C.V., upon satisfactory evidence
to be the person whose name is subscribed to the within instrument, personally
appeared and who being duly sworn did subscribe the same in his authorized
capacity, freely and voluntarily for the uses and purposes therein expressed.
WITNESS my hand and official seal the date aforesaid
/s/ Xxxx Xxxxx y Xxxxxxx Notary Public
------------------------
LIC. XXXX XXXXX Y XXXXXXX
ATTORNEY IN FACT
[Letterhead of Argyll Equities]
Schedule I to Pledge Agreement of April 6, 2005
By Xxxxxx Xxxxxxx Xxxxxxx on behalf of Servicios Directivos Servia, S.A. de C.V.
to Argyll Equities, LLC
SCHEDULE OF PLEDGED ADR'S
NAME OF NUMBER OF CLASS OF CERTIFICATE
ISSUER ADR'S ADR'S NUMBER SYMBOL
------------------------- --------- ------------ ----------- ------
GRUPO TMM SA 582,337 Free Trading form DTC TMM
**************************************Last Item*********************************
[Letterhead of Argyll Equities]
Exhibit A to Pledge Agreement of April 6, 2005
By Xxxxxx Xxxxxxx Xxxxxxx on behalf of Servicios Directivos Servia, S.A. de C.V.
to Argyll Equities, LLC
FORM OF IRREVOCABLE PROXY
KNOW ALL MEN BY THESE PRESENTS: that the undersigned does hereby make,
constitute and appoint Argyll Equities, LLC (the "Lender") and each of the
Lender's officers and employees, his true and lawful attorneys, for him and in
his name, place and stead, to act as its proxy in respect of all of the pledged
ADR's of capital stock of GRUPO TMM SA (NYSE: TMM) a corporation (hereinafter
referred to as the "Corporation"), which he now or hereafter may own or hold,
including, without limitation, the right, on his behalf, to demand the call by
any proper officer of the Corporation pursuant to the provisions of the
certificate of incorporation or by-laws of the Corporation and as permitted by
law of a meeting of the Corporation's shareholders and at any meeting of
shareholders, annual, general or special, to vote for the transaction of any and
all business that may come before such meeting, or at any adjournment thereof,
including, without limitation, the right to vote for the sale of all or any part
of the assets of the Corporation and/or the liquidation and dissolution of the
Corporation; giving and granting to his said attorneys full power and authority
to do and perform each and every act and thing, whether necessary or desirable
to be done in and about the premises, as fully as be might or could do if
personally present, with full power of substitution, appointment and revocation,
hereby ratifying and confirming all that his said attorneys shall do or cause to
be done by virtue hereof.
This Irrevocable Proxy is given to the Lender and to its officers and
employees in consideration of its execution and delivery of the Loan Agreement
dated as of the date hereof between the undersigned and the Lender (as it may be
amended, supplemented, restated or otherwise modified from time to time, the
"Loan Agreement"), and the transactions contemplated thereby, and in order to
carry out the covenant of the undersigned contained in a certain Pledge
Agreement of even date herewith by the undersigned in favor of the Lender (as it
may be amended, supplemented, restated or otherwise modified from time to time,
the "Pledge Agreement"), and this Proxy shall he irrevocable and coupled with an
interest, and shall be effective and binding upon the undersigned and his heirs,
executors, administrators, legatees, representatives, successors and assigns
until the payment in full of all of the Obligations (as such term is defined in
the Pledge Agreement) and may be exercised after the occurrence and during the
continuance of an Event of Default (as such tern is defined in the Loan
Agreement).
IN WITNESS WHEREOF, the undersigned has duly executed this Irrevocable
Proxy as of this 6th day of April 2005.
/s/ Xxxxxx Xxxxxxx Xxxxxxx
-----------------------------------------
Xxxxxx Xxxxxxx Xxxxxxx on behalf of
Servicios Directivos Servia, S.A. de C.V.
GUARANTEE
---------
State of )
------------------------
) ss.
County of )
-----------------------
On _______________________________________ before me, Xxxxxx Xxxxxxx Xxxxxxx on
behalf of Servicios Directivos Servia, S.A. de C.V., upon satisfactory evidence
to be the person whose name is subscribed to the within instrument, personally
appeared and who being duly sworn did subscribe the same in his authorized
capacity, freely and voluntarily for the uses and purposes therein expressed.
WITNESS my hand and official seal the date aforesaid
/s/ Xxxx Xxxxx y Xxxxxxx Notary Public
------------------------
LIC. XXXX XXXXX Y XXXXXXX
ATTORNEY IN FACT
[Letterhead of Argyll Equities]
Exhibit B to Pledge Agreement of April 6, 2005
By Xxxxxx Xxxxxxx Xxxxxxx on behalf of Servicios Directivos Servia, S.A. de C.V.
to Argyll Equities, LLC
FORM OF UNDERTAKING
-------------------
The undersigned agrees that if an Event of Default shall occur under the
Loan Agreement, as such term is defined in the Pledge Agreement dated as of
April 6, 2005 (as it may be amended, supplemented, restated or otherwise
modified from time to time, the "Pledge Agreement"), by the undersigned in favor
of Argyll Equities, LLC (the "Lender"), the undersigned shall, at the request of
the Lender and at the sole expense of the undersigned, furnish to the Lender
such statements, prospectuses, opinions of counsel and other documents as the
Lender shall require to enable compliance with applicable state and federal
securities or blue sky laws in connection with the public sale or other
disposition of the Pledged ADR's and to facilitate such public sale or
disposition. The undersigned agrees that a breach of any of his obligations set
forth in this undertaking will cause irreparable injury to the Lender, that the
Lender has no adequate remedy at law in respect of such breach and agrees that
each and every covenant contained herein shall be specifically enforceable
against the undersigned, and the undersigned hereby waives agrees not to assert
any defenses against an action for specific performance of such covenants. The
undertaking of the undersigned herein shall remain in full force and effect
notwithstanding any amendment or modification of the Pledge Agreement.
/s/ Xxxxxx Xxxxxxx Xxxxxxx
---------------------------------------------
Xxxxxx Xxxxxxx Xxxxxxx on behalf of Servicios
Directivos Servia, S.A. de C. V.
GUARANTEE
---------
State of )
------------------------
) ss.
County of )
-----------------------
On _______________________________________ before me, Xxxxxx Xxxxxxx Xxxxxxx on
behalf of Servicios Directivos Servia, S.A. de C.V., upon satisfactory evidence
to be the person whose name is subscribed to the within instrument, personally
appeared and who being duly sworn did subscribe the same in his authorized
capacity, freely and voluntarily for the uses and purposes therein expressed.
WITNESS my hand and official seal the date aforesaid
/s/ Xxxx Xxxxx y Xxxxxxx Notary Public
------------------------
LIC. XXXX XXXXX Y XXXXXXX
ATTORNEY IN FACT
