Exhibit 10.6
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 (iii) 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 ORGANIZATION AND GOOD STANDING. Each Party is a
corporation, duly organized, validly existing, and is qualified and authorized
to transact business in, and is in good standing under the laws of, the
jurisdiction of its organization and each jurisdiction in which it performs or
will perform its obligations under this Agreement, or is otherwise doing
business or is otherwise exempt under Applicable Law from such qualification.
Section 4.2. AUTHORITY AND CAPACITY. Each Party represents that the person
executing
this Agreement has the power, authority and capacity to execute, deliver, and
perform its obligations under this Agreement, and has been duly authorized by
all necessary corporate action. This Agreement constitutes a valid and legally
binding agreement enforceable in accordance with its terms, subject to
bankruptcy laws and other similar laws of general application in either the
United States or the UMS, as the case may be, affecting rights of creditors and
subject to the application of the rules of equity of the United States or the
UMS, as the case may be, including those respecting the availability of specific
performance.
Section 4.3. CONSENT; LITIGATION. No consent or approval of any other Party
or any court or governmental authority is required in connection with the
execution, delivery, performance, validity or enforceability of this Agreement.
There is no pending claim, cause of action, governmental action or litigation
that, if determined adversely, would affect the representing Party's ability to
perform its obligations hereunder. This Agreement will not result in a default
under any other agreement to which the Parties are bound.
ARTICLE V
CUSTOMER PRIVACY AND CONFIDENTIALITY OF INFORMATION
Section 5.1. CONFIDENTIAL INFORMATION. Every Party and their respective
affiliates, directors, officers, employees, authorized representatives, agents
and advisors (including without limitation, attorneys, accountants, consultants,
bankers and financial advisors) shall keep confidential all information
concerning the proprietary business procedures, products, rates services,
operations, marketing materials, fees, policies or plans of the other Party or
Parties, as the case may be, and all "Nonpublic Information" of the other Party
or Parties, as the case may be, that is received or obtained during the
negotiation or performance of this Agreement, whether such information is oral
or written, and whether or not labeled as confidential by such party
(collectively "Confidential Information"). "Nonpublic Information" shall include
all personally identifiable financial information and any list, description or
other grouping of consumers, and publicly available information pertaining to
them, that is derived using any personally identifiable financial information
that is not publicly available, and shall further include all "nonpublic
personal information" as defined by federal regulations implementing the
Gramm-Leach-Bliley Act, as amended from time to time. "Personally identifiable
financial information" means any information a consumer provides to a party in
order to obtain a financial product or service, any information a party
otherwise obtains about a consumer in connection with providing a financial
product or service to that consumer, and any information about a consumer
resulting from any transaction involving a financial product or service between
a party and a consumer. Personally identifiable information may include, without
limitation, a consumer's first and last name, physical address, zip code, email
address, phone number, social security number, birth date, and any other
information that itself identifies or when tied to the above information, may
identify a consumer.
Section 5.2. USE OF CONFIDENTIAL INFORMATION. For as long as Confidential
Information is in possession of a Party, such Party shall take reasonable steps,
at least substantially equivalent to the steps it takes to protect its own
proprietary information, to prevent the use, duplication or disclosure of
Confidential Information, other than, by or to its employees or agents who are
directly involved in negotiating or performing this Agreement and who are
apprised of their obligations under this Section and directed by the receiving
Party to treat such
information confidentially, or except as required by law or by a supervising
regulatory agency of a receiving Party (with information as to the amount of,
and manner of calculating the Purchase Price redacted where permitted). Neither
Party shall disclose, share, rent, sell or transfer to any third Party any
Confidential Information of the other Party or Parties, as the case may be. The
Parties shall use Confidential Information only as necessary to perform this
Agreement.
Section 5.3 EXCEPTIONS. Notwithstanding anything herein to the contrary, no
obligation or liability shall accrue hereunder with respect to any of the
information to the extent that such information:
(a) Is or becomes publicly available other than as a result of acts by
a Party or by its representatives or agents in violation of this Agreement;
or
(b) Is in the possession of the Party or of its representatives or
agents prior to disclosure; or
(c) Is or becomes available to a Party from a source that, to the
Party's knowledge, is not bound by a confidentiality agreement with the
prohibiting such disclosure; or
(d) Is, on the advice of counsel, required to be disclosed by law,
regulation, judicial order or by other legal process. If so advised by
counsel, the Party that is required to make the disclosure shall give
prompt written notice to the other Party, shall seek the entry of a
protective order or otherwise protect the confidentiality of the
Confidential Information being disclosed, and, if a protective order cannot
be obtained, the disclosing Party shall only disclose that portion of such
Confidential Information as it is legally required to disclose.
ARTICLE VI
TERM AND TERMINATION
Section 6.1. TERM; TERMINATION. The initial term of this Agreement (the
"Initial Term") shall be the period commencing on the Effective Date (as defined
in the AAA) of the Acquisition and terminating on the fifth anniversary of the
Effective Date; provided, that thereafter this Agreement shall be automatically
renewed for periods of one (1) year unless either party gives written notice of
intent to terminate to the other parties not less than sixty (60) days prior to
expiration of the initial or any subsequent term. (The Initial Term as extended,
the "Term.") Notwithstanding the foregoing, this Agreement shall terminate
automatically in the event that (i) TMM Logistics files any voluntary proceeding
under any bankruptcy laws, or if TMM Logistics has filed against it any
involuntary proceeding under any bankruptcy law which is not dismissed or stayed
within 30 days, in either case seeking the adjudication of TMM Logistics as
bankrupt or seeking the appointment of a receiver for its assets, or (ii) a
Change of Control of the Parent Group occurs and the party effecting such Change
of Control is a Competitor, as defined in the AAA. This Agreement may also be
terminated by the Operating Company or the KCS Group in the event that the
Parent Group or TMM Logisitics, or any officer, director or controlling
shareholder of any of the Parent Group or TMM Logistics, has engaged in Improper
Conduct.
ARTICLE VII
INDEMNIFICATION
Section 7.1 MUTUAL INDEMNITY. Every Party (in such capacity, referred to as
"Indemnitor") shall indemnify and hold the other Party or Parties, as the case
may be, and their respective shareholders, directors, officers, employees,
representatives, agents, servants, successors, and assigns (collectively
"Indemnitees") harmless from and shall reimburse Indemnitees for any losses,
damages, deficiencies, claims, causes of action or expenses of any nature
(including reasonable attorneys' fees and expenses) incurred by Indemnitees
arising out of or resulting from any breach of any warranty, representation
covenant or obligation of Indemnitor under this Agreement.
Section 7.2 INDEMNIFICATION PROCEDURES. After any Party obtains knowledge
of any claim, action, suit or proceeding (collectively a "Claim") for which it
believes it is entitled to indemnification under this Agreement, it shall
promptly notify the other Party or Parties, as the case may be, of such Claim in
writing within ten (10) days after such knowledge. Every Party shall cooperate
with the other Party or Parties, as the case may be, in every reasonable manner
(at the Indemnitor's sole expense) to facilitate the defense of any Claim
subject to indemnification hereunder. Indemnitees' failure to promptly notify
Indemnitor of a Claim shall not relieve the Indemnitor from any liability under
this Section to the extent that Indemnitor is not materially adversely affected
by such delay. With respect to each such notice, the Indemnitor shall, at the
Indemnitees' option, immediately take all reasonable action necessary to
minimize any risk or loss to the Indemnitees, including retaining counsel
satisfactory to the Indemnitees and taking such other actions as are necessary
to defend the Indemnitees or to discharge the indemnity obligations under this
Section. If the Indemnitor does not timely and adequately conduct such defense,
the Indemnitees may, at their option and at Indemnitor's expense, conduct such
defense, contest, litigate or settle the Claim using counsel of their own choice
without prejudice to their right of indemnification under this Section. The
Indemnitor shall pay on demand any liability incurred by the Indemnitees under
this Section. The Indemnitor shall not settle any claim in which the Indemnitees
are named without the prior written consent of the Indemnitees, which consent
shall not be unreasonably withheld. The Indemnitees shall have the right to be
represented by counsel at their own expense in any contest, defense, litigation
or settlement conducted by the Indemnitor pursuant to this Section.
ARTICLE VIII
MISCELLANEOUS
Section 8.1 RELATIONSHIP. The relationships among the Parties shall be
those of independent contractors and no Party shall be or represent itself to be
an agent, employee, or joint venturer of the other, nor shall any Party have or
represent itself to have any power or authority to act for, bind or commit the
other Party or Parties, as the case may be.
Section 8.2 SURVIVAL. The provision of Sections 5, 7 and 8 shall survive
termination of this Agreement.
Section 8.3 WAIVER OF DAMAGES. NO PARTY SHALL BE LIABLE TO THE OTHER PARTY
FOR ANY ACTUAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT,
PUNITIVE, SPECIAL OR OTHER DAMAGES RELATED IN ANY WAY TO THE PARTIES'
OBLIGATIONS UNDER THIS AGREEMENT. OTHER THAN THE LIQUIDATED DAMAGES ON THE TERMS
EXPRESSLY PROVIDED FOR IN SECTION 2.1(c), THE PARTIES AGREE THAT THE ONLY REMEDY
AVAILABLE TO EITHER PARTY UNDER THIS AGREEMENT IS THE SPECIFIC ENFORCEMENT OF
THE TERMS OF THIS AGREEMENT.
Section 8.4 NO WAIVER OF DEFAULTS. Any waiver of breach or default pursuant
to this Agreement will not be a waiver of any other subsequent default. Failure
or delay by any Party to enforce any term or condition of this Agreement will
not constitute a waiver of such term or condition.
Section 8.5 SEVERABILITY. To the extent that any provision of this
Agreement is found by a court of competent jurisdiction to be invalid or
unenforceable, that provision notwithstanding, the remaining provisions of this
Agreement will remain in full force and effect and such invalid or unenforceable
provision will be deleted.
Section 8.6 ASSIGNMENT. No Party or its Affiliate may assign any rights or
delegate any duties under this Agreement other than to an Affiliate, subject to
restrictions on assignment by the Parent Group, as provided in Section 2.1 b,
without the prior written consent of the other Parties, as the case may be, and
any attempt to do so without that consent will be void.
The rights granted under this Agreement shall terminate as to any Affiliate
at the time any such entity ceases to be an affiliate.
Section 8.7 NOTICES. All notices required or permitted under this Agreement
must be in writing and shall be deemed effectively given: upon personal
delivery, when delivered to the address provided below or; when sent by
certified mail, postage prepaid and return receipt requested; upon transmission,
when transmitted by telecopier, facsimile, telex or other electronic
transmission method including E-mail, provided that receipt is confirmed and
notice is sent by certified mail, postage prepaid and return receipt requested;
or when sent by Federal Express or other nationally recognized overnight
delivery service. Any such notice shall be sent to the Party to whom notice is
intended to be given at its address as shown below:
if to TMML, to:
Avenida de la Cupside 4755
Col. Parques del Pedregal
C.P. 14010, Mexico, D.F.
Attention: Geraldo Primo
if to TFM, to:
Larry Lawrence
The Kansas City Southern Railway Company
By Courrier Delivery:
427 W. 12th
Kansas City, Missouri 64105
By Regular Mail Delivery:
P. O. Box 219335
Kansas City, MO 64121-9335
if to KCS, to:
Larry Lawrence
The Kansas City Southern Railway Company
By Courrier Delivery:
427 W. 12th
Kansas City, Missouri 64105
By Regular Mail Delivery:
P. O. Box 219335
Kansas City, MO 64121-9335
If any of the parties changes its address, it will notify the other parties
in writing of such change in the manner established in this Clause, otherwise
the notices and communications will be effective when sent to last address
established pursuant to this Clause.
Section 8.8 AMENDMENT. No alteration, waiver, cancellation, or any other
change or modification in any term or condition of this Agreement will be valid
or binding on any Party unless made in writing and signed by duly authorized
representatives of all Parties.
Section 8.9 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, without giving
effect to its conflicts of law provisions. Each party hereto hereby consents to
personal jurisdiction in any such action brought in any New York state or
federal court, consents to service of process by registered mail made upon such
party and such party's agent and waives any objection to venue in any such New
York state or federal court and any claim that any such New York state or
federal court is an inconvenient forum.
Section 8.10 ENTIRE AGREEMENT. The terms and conditions herein contained,
including all Exhibits hereto, constitute the entire agreement among the Parties
with respect to the subject matter of this Agreement and supersede any previous
and contemporaneous agreements and understandings, whether oral or written,
among the Parties hereto with respect to the subject matter hereof. There are no
other agreements, understandings, representations, or promises among the Parties
with respect to the subject matter of this Agreement which are not included
herein or in the AAA.
Section 8.11 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, including facsimiles, each of which will be deemed to be a
duplicate original, but all of which, taken together, will be deemed to
constitute a single instrument.
IN WITNESS WHEREOF, this Agreement has been entered into by the Parties as
of the
day of December, 2004.
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TFM, S.A. DE C.V.,
By: /s/ Carlos Aguilar
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Name: Carlos Aguilar
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Title: Attorney in Fact
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By:
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Name:
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Title:
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THE KANSAS CITY SOUTHERN
RAILWAY COMPANY
By: /s/ Michael R. Haverty
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Name: Michael R. Haverty
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Title: Chairman, President and CEO
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TMM LOGISTICS, S.A. DE C.V.
By: /s/ Horacio Reyes
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Name: Horacio Reyes
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Title: Attorney in Fact
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By:
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Name:
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Title:
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