Exhibit 4.32
MARKETING AND SERVICES AGREEMENT
This MARKETING AND SERVICES AGREEMENT (the
“Agreement”) dated as of December 15, 2004, but
to become effective as hereinafter provided, is made by and among
TMM Logistics, S.A. de C.V. (the “Parent”
and, together with its Subsidiaries (as defined herein), Affiliates
(as defined herein) and joint venture companies, the “Parent
Group”), TFM, S.A. de C.V., (the “Operating
Company”) and The Kansas City Southern Railway Company
(“KCS”) and, together with its Subsidiaries (including
the Operating Company and its Subsidiaries) and Affiliates, the
“KCS Group”) (the Parent Group and the KCS Group are
collectively referred to as the “Parties;” and each
individually, a “Party”).
WHEREAS, Parent and KCS are stockholders of Grupo Transportacion
Ferroviaria Mexicana, S.A. de C. V. (“GTFM”), which is
the parent company of the Operating Company;
WHEREAS, the Parent Group is engaged in certain operations,
including the provision of logistics services, the operation of
intermodal facilities, the operation of port facilities, the
operation of maritime services and, through the Operating Company,
the operation of rail services in Mexico connecting with US and
other Mexican rail service providers and certain of these services
are provided by members of the Parent Group to the Operating
Company and its Subsidiaries;
WHEREAS, Parent and KCS have entered into the Amended and
Restated Acquisition Agreement, dated as of [ ],
2004 (the “Acquisition Agreement”), pursuant to which
KCS will acquire all of the interest of Parent and its Subsidiaries
in GTFM; and
WHEREAS, this Agreement is one of the Ancillary Agreements (as
defined in the AAA) referred to in the AAA.
NOW THEREFORE, in consideration of the mutual agreements and
covenants contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, the Parties hereto, intending to be legally bound
hereby, agree as follows:
ARTICLE I
DEFINITIONS
“Affiliate” means, with respect to any person, any
other person that, directly or indirectly through one or more
intermediaries, controls, is controlled by, or is under common
control with such person. For purposes of this Agreement,
“control” means the power or ability, to control or
direct the affairs of any person, whether through the ownership of
voting securities, or by contract, and the terms “controlled
by” and “common control” shall have correlative
meanings.
“Competitor” shall mean Canadian National Railway,
‘Canadian Pacific Railway Company, Union Pacific Corporation,
Burlington Northern Santa Fe Corporation, CSX Corporation, Norfolk
Southern Corp., Ferrocarril Mexicano, S.A. de C.V., Ferrocarril del
Sureste, S.A. de C. V., Grupo Mexico, S.A. de C. V., the Anschutz
Corporation and any other
Person who operates a railroad
in the United States, Mexico or Canada after the date hereof which,
if operated in the United States would be regarded as a
Class 1 railroad, Hub Group, Inc., Pacer International, Inc.
and any of the respective successors or Affiliates of any of the
foregoing.
“Improper Conduct” shall mean any act which has
resulted in harm to the assets or business of the Operating Company
or the KCS Group or which involved the receipt of a material
improper benefit by any person.
“Logistics Companies ” shall mean a third party
company or fourth party company that (i) is not a rail carrier
or shipper and (ii) which, as the majority of its business,
arranges for the transportation of goods, manages the supply chain
(including, but not limited to, inventory management, warehousing,
packaging of goods, consolidating and de-consolidating of products,
line feeding, pick-up and delivery of goods and all kind of
transportation) of goods for others.
“MFN Services” shall mean any intermodal services
(including, without limitation, Trailer on Flat Car (TOFC),
Container on Flat Car (COFC), and Road-Railer services) that
originate or terminate in Mexico or are ramped or de-ramped at the
border of the United States and the United Mexican States
(“UMS”) and intermodal services relating to the
transportation of automobiles that originate and terminate within
Mexico.
“Subsidiary” of any person shall mean (i) in
the case of a corporation, any other person who owns more than 50%
of the voting securities of which is, directly or indirectly,
beneficially owned by such person (ii) in the case of a
partnership or a limited liability company, any person in which
such person is a general partner or managing member, as the case
may be, or owns more than 50% of the ownership interests therein,
and (in) in the case of any other person, any other person in
which such person owns more than 50% of the voting or controlling
equity interests in such person.
Terms used but not defined herein shall have the meanings
ascribed to them in the AAA.
ARTICLE II
MOST FAVORED NATIONS
PROVISIONS
Pursuant to the terms, conditions and provisions of this
Agreement, the Parties shall, as the case may be, perform the
following marketing and related services and/or enjoy the following
rights pertaining to the following prescribed services (the
“Services and Rights”):
Section 2.1 Most Favored Nations
Arrangement.
(a) During the Term, the KCS Group shall, upon the request
of any member of the Parent Group, provide to any member of the
Parent Group any of the MFN Services, as defined in
Section 2.2 hereof, that the KCS Group or the Operating
Company is presently providing or hereafter provides within, to or
from Mexico on terms which are no less favorable than the terms for
like volumes and services on which such MFN Services are at the
time provided to Logistics
Companies. The terms of this
Agreement shall not apply to any traffic to which an Most Favored
Nations clause which was entered into prior to the time KCS
acquires control of TFM applies.
(b) The rights of the Parent Group under this
Section 2.1 may not be, in whole or in part, directly or
indirectly sold, transferred, assigned or otherwise conveyed by the
Parent Group or any member thereof to any other Person other than
to any Affiliate of the Parent Group who has agreed in writing to
be bound by all of the provisions of this Agreement and a copy of
such writing has been delivered to Operating Company. For purposes
of this Agreement a merger of Parent or another member of the
Parent Group with another person will constitute an indirect
transfer unless, after such merger: (1) such other person is
an Affiliate of the Parent Group or (2) persons who in the
aggregate control a majority of the voting stock of Parent or an
Affiliate of Parent controls a majority of the voting stock of such
other person.
(c) Notwithstanding subsection (a) of this
Section 2.1 or any other provision of this Agreement to the
contrary, in the event that the KCS Group determines that there is
an economic benefit to any member of the KCS Group from not
complying with Section 2.1 (a) with regard to any
specific shipper, then, upon written notice to the Parent Group
expressly referencing this Section 2.1 (c) and stating that
KCS Group will not comply with Section 2.1 (a) with
respect to said shipper, such non-compliance shall be excused with
respect to said shipper for the term of this Agreement and the
Operating Company’s and KCS Group’s failure to comply
with Section 2.1 shall not be deemed to be a breach of this
Agreement. In the event that KCS Group gives such a written notice
to the Parent Group more than three times during the Initial Term
of this Agreement, then the written notice must be accompanied by a
payment in the amount of Fifty Thousand Dollars (US$50,000.00) for
the written notice to be effective to excuse performance under
Section 2.1(a).
Section 2.2. Exclusive Right to Provide Road-Railer
Services. During the Term of this Agreement, the Parent Group
shall have the right to be the exclusive provider of Road-Railer
freight services over the Operating Company’s rail system
within Mexico, including the Nuevo Laredo-Mexico City corridor. The
KCS Group agrees that it will not sell, market or otherwise provide
such services either directly or indirectly through any other
person over the Operating Company’s rail system within
Mexico, including the Nuevo Laredo-Mexico City corridor. All of the
prices charged to customers by Operating Company for such services
shall be determined from time to time by the Operating Company.
Parent Group agrees not to: (i) permit any third party,
directly or indirectly to use all or any part of the rights granted
in this section under the guise of doing its own business or
(ii) to make any agreement to handle as its own Road-Railer
equipment of any other third party which in the normal course of
business would not be considered the equipment of Parent
Group.
Section 2.3. Intermodal Services. To the extent that
the Operating Company determines to utilize a third party to
operate its intermodal terminals within Mexico or to provide other
services of the type which are the subject of this Agreement
(including, without limitation, inspection, pre-trip, repair of
cars, chassises, trailers and containers, finished vehicles yard
management, loading and unloading of cars from railcars) at any
time during the Term of this Agreement, the Parent Group, to the
extent that the members of the Parent Group actually perform such
services with their own employees, shall be preferred to operate
such intermodal terminals or to provide such services over any
unrelated third party, provided, in the Operating Company’s
sole judgement, reasonably exercised, that the standards of service
and performance offered by the
Parent Group are at least as
high as those offered by such unrelated third party and that the
parent Group shall have offered to provide such services on terms
and conditions at least as favorable to the Operating Company as
those offered by the unrelated third party. Notwithstanding the
foregoing, the KCS Group shall have the sole right at any time and
from time to time to determine whether it shall operate any such
intermodal terminals or provide such services in the United States
or Mexico directly or through its Subsidiaries.
Section 2.4. Additional Transportation Related
Services. If the Operating Company and its Subsidiaries and
Affiliates determine at any time during the Term to have
transportation logistics services provided by any unaffiliated
third party in Mexico which are at the time provided by any member
of the Parent Group within Mexico or the United States through its
own employees, then the Parent Group shall have the right to make a
bid for the provision of such services. In order to allow the
Parent Group an adequate opportunity to make a bid for the
provision of such services, the Operating Company and its
Subsidiaries and Affiliates shall invite the Parent Group at the
time it seeks bids for such services from any unaffiliated third
party, providing the Parent Group with at least the same notice
that is provided to any unaffiliated third party. Such services
shall include, but are not limited to:
(a) Drayage from intermodal terminals to intermodal final
destination and vice versa;
(b) Logistic coordination for intermodal traffic when
provided to a third party; and
(c) Cross-dock and warehousing operations when provided to
third parties.
ARTICLE III
COVENANTS OF THE PARTIES
Section 3.1. Compliance with Law. Each Party shall
perform all of its activities, obligations and responsibilities
contemplated under this Agreement in compliance with all Applicable
Laws.
Section 3.2. Cooperation. Each Party shall cooperate
and work in good faith with the other Party or Parties, as the case
may be, to perform and maintain the services described in this
Agreement as promptly as possible.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE
PARTIES
As of the date of this Agreement, and throughout the Term, each
Party hereby represents and warrants to the other Parties the
following:
Section 4.1. Due Orga
