Exhibit 10.16
(CERTIFIED TRANSLATION)
PURCHASE-SALE AGREEMENT DATED JULY 29, 2002, ENTERED INTO BY AND BETWEEN:
1. TFM, S.A. de C.V., represented herein by Messrs. Xxxxx Xxxxx Xxxxx and
Xxxx Xxx Xxxxx Xxxxx, in their capacity as purchaser, hereinafter TFM.
2. Ferrocarriles Nacionales de Mexico, represented herein by Xxxxx
Xxxxxxx Xxxxxxxxxx Mufioz, in his capacity as the seller, hereinafter
FNM;
3. Nacional Financiers SNC, Institucion de Banca de Desarrollo
(hereinafter Nafin), in its capacity as Trustee of trust number
5012-6, known as FERRONALESJUB (hereinafter the Trust), as seller,
represented herein by General Trust Delegate Xxxxxxx Xxxxxxx Xxxxxx,
hereinafter Trustee;
Within the appearance of Grupo Transportacion Ferroviaria Mexicana (hereinafter
Grupo TFM); Grupo TMM S.A. de C.V. (formerly Grupo Servia S-A. de C.V),
hereinafter Grupo TMM; TMM Multimodal S.A. de C.V. (hereinafter TMM Multimodal)
and Caymex Transportation Inc. (hereinafter Caymex), in accordance with the
following Background, Recitals and Clauses:
BACKGROUND
I. On June 9, 1997, FNM executed an agreement with Grupo TFM, TMM
Multimodal, Caymex and Grupo TMM (hereinafter the Original Agreement)
by which, and under the terms and conditions stated therein, FNM
agreed to contribute to the variable part of the capital stock of
Grupo TFM, amounting to $1,581,700,000.00 (ONE BILLION, FIVE HUNDRED
EIGHTY-ONE MILLION, SEVEN-HUNDRED THOUSAND MEXICAN PESOS) plus
interest accrued to the date on which the contribution was to be made.
II. In compliance with its obligations of the Original Agreement dated
June 23, 1997, FNM subscribed and paid to Grupo TFM a total of
2,478,470 (TWO MILLION, FOUR HUNDRED SEVENTY-EIGHT THOUSAND, FOUR
HUNDRED SEVENTY) series L and Sub-series L-1 shares, representative of
the variable part of the capital stock of Grupo TFM (the FNM Shares),
FNM subscribed and paid for these shares under terms and conditions
stated in the Original Agreement.
III. In accordance with Clause III of the Original Agreement, FNM granted
to Grupo TMM, TMM Multimodal and Caymex (hereinafter and jointly, the
Original Shareholders', or individually, the Original Shareholder,
depending on the context) or, as the case may be, to the corporation
that each Original Shareholder names that must be a subsidiary of TMM,
KCSI or Grupo TMM, the right to acquire the total or part if the
Proportional Part of the FNM Shares to which each Original Shareholder
is entitled, at a Purchase Price equal to that which is calculated in
accordance with Point 3.03 of the Original Agreement.
Hereinafter, and for the purpose hereof, said right to acquire the
total or part of the FNM Shares will be referred to as the Purchase
Option.
IV. In the agreement dated April 5, 2001, entered into by and between FNM,
in its capacity as trustor, and Nacional Financierea S.N.C.,
Insitucion de Banca de Desarrollo (hereinafter, Nafin), as trustee of
trust number 50121-6, FERRONALESJUB (hereinafter the Trust), FNM
transferred under gratuitous title to Nafin 801,536 (EIGHT HUNDRED ONE
THOUSAND, FIVE HUNDRED THIRTY-SIX) Series L and Sub-series L-1 shares,
representative of the variable part of the capital stock of Grupo TFM,
in the understanding that said shares were transferred in accordance
with the Purchase Option.
Hereinafter, the 801,536 (EIGHT HUNDRED ONE THOUSAND, FIVE HUNDRED THIRTY-SIX)
Series L and Sub-series L-1 shares, representative of the variable part of the
capital stock of Grupo TFM will be referred to as the Ferronalesjub shares. The
transfer of the Ferronalesjub shares was agreed upon by the Original
Shareholders under the terms of the agreement made between Grupo TMM, TMM
Multimodal, Caymex, FNM and Nafin, on July 27, 2001.
V. As a consequence of FNM's transfer of the Ferronalesjub shares to the
Trust, as of the date hereof, FNM owns 1,676,934 (ONE MILLION SIX
HUNDRED SEVENTY-SIX THOUSAND, NINE HUNDRED THIRTY-FOUR) Series L and
Sub-series L-1 shares that are representative of the capital stock of
Grupo TFM; hereinafter these shares will be referred to as the
Ferronales Shares.
VI. On October 10, 2001, the Original Shareholders, Grupo TFM, FNM and
Nafin entered into an assignment of rights agreement (the Assignment
Agreement), in accordance with which, and under the terms and
conditions referred to therein, the original shareholders assigned the
purchase option to TFM, and some of the terms defined in the original
agreement were amended. Unless attributed another meaning herein, the
terms defined in the Original Agreement, modified in accordance with
the Assignment Agreement, will have the same meaning herein, as in the
Original Agreement (as amended in accordance with the Assignment
Agreement).
As the conditions to which the assignment of the purchase option was subject, in
accordance with the Assignment Agreement, were not properly met or satisfied
within the terms that the parties agreed upon for such purpose, the Purchase
Option reverted to the Original Shareholders as of December 1, 2001.
VII. On April 5, 2002, the Original Shareholders, Grupo TFM, FNM and Nafin
executed a letter of understanding by which the parties to the
Original Agreement agreed that regardless of the right of each of the
Original Shareholders to acquire the proportional part of the FNM's
shares to which they were entitled, either directly or through the
company that each Original Shareholder may name that must be a
subsidiary of Grupo TFM or of KCSI, as the case may be, each of the
Original Shareholders may appoint TFM as
acquire of the total of the proportional part of the FNM shares to
which each of the Original Shareholders is entitled, for which purpose
point 3.01 of the Original Agreement was amended.
VIII. On May 29, 2002, each of the Original Shareholders exercised the
Purchase Option for the total of the proportional part of the FNM
shares to which each was entitled, under the terms laid down in Clause
Three of the Original Agreement, by sending written notification to
FNM and to Nafin, TFM being appointed as acquirer for all purposes
(hereinafter the Purchase Notification).
IX. Based on Article 178 of the General Business Corporations Law, Clause
Twenty-two and Transitory Clauses Forty-two and Forty-three of Grupo
TFM's current bylaws, and for the purpose of exercising the Purchase
Option, the Shareholders of Grupo TFM, with the abstention of FNM an
Nafin, adopted a unanimous resolution on July 19, 2002, outside the
Shareholders' Meeting, to exchange all the Series L and Sub-series L-1
shares for the same number of Series L and Sub-series L-2 shares.
X. In compliance with the respective obligations under the Original
Agreement and derived from the Purchase Notification, FNM, Nafin and
TFM hereby enter into this Agreement to formalize the purchase-sale of
the total of the Ferronales Shares and the Ferronalesjub Shares, in
accordance with the terms and conditions established hereinafter.
XI. On July 11, 2002, Grupo TFM assigned to TFM its collection rights with
FNM and Nafin with regard to the dividends that Grupo TFM paid to NFM
and Nafin, amounting to US$5,635,529.52 (FIVE MILLION SIX HUNDRED
THIRTY-FIVE THOUSAND, FIVE HUNDRED TWENTY NINE DOLLARS, 52/100) and
US$2,693,653.89 (TWO MILLION SIX HUNDRED NINETY-THREE THOUSAND, SIX
HUNDRED FIFTY-THREE DOLLARS, 89/100) legal tender of the United States
of America, respectively, these having been declared null and void by
the Eighteenth Civil Court of Mexico City, Federal District on March
25, 2002.
RECITALS
I. TFM, through its representatives, declares:
a) That it is a business corporation legally incorporated and
existing in accordance with Mexican Law, as evidenced in Public Document number
50,413 dated November 22, 1996, granted before Xxxxxx Alesslo Xxxxxx, Notary
Public No. 19 for the Federal District, the first notarial copy of which is duly
registered with the Public Register of Property and Commerce of the First
District in Monterrey, Nuevo Xxxx under number 39, volume 429, book 3, Second
Auxiliary Register, Public Documents of Business Corporations, Commerce Section,
January 10, 1997.
b) That it has changed its name to TFM S.A. de C.V., as evidenced in
Public Document number 33,385, dated May 6, 1997, granted before Xxxxxx Xxxxx
Xxxx, Notary Public number 97 for the Federal District, the first notarial copy
of which is duly registered with the Public Register of Commerce of this city,
on page number 222305, June 2, 1997.
c) That the execution, performance and compliance with this agreement on
the part of TFM is included within its corporate purpose, that it has been
authorized by all corporate acts and that it does not contravene (i) its
current bylaws, or (ii) any contractual law or provision to which it is subject.
d) That in compliance with its obligations under the Purchase
Notification and the Original Agreement, it hereby enters into this Agreement
in order to formalize the purchase-sale of the total of the Ferronales shares
and the Ferronalesjub shares, under the terms and conditions established
hereinafter.
e) That its representatives have sufficient legal power to bind it
hereunder, as evidenced in public document 38,921, dated July 29, 2002, granted
before Xxxxxx Xxxxx Xxxx, Notary Public number 97 for the Federal District,
said powers not having been revoked, amended, limited or restricted in any
manner.
II. FNM, through its representatives, declares:
a) That in compliance with its obligations under the Purchase
Notification and the Original Agreement, it hereby enters into this Agreement
in order to formalize the sale of the total of the Ferronales shares that it
owns, in other words, 1,676,934 (ONE MILLION SIX HUNDRED SEVENTY-SIX THOUSAND,
NINE HUNDRED THIRTY-FOUR) Series L and Sub-series L-1 shares that are
representative of the capital stock of Grupo TFM, under the terms and
conditions established hereinafter.
b) That its representative has sufficient powers to bind it hereunder,
as evidenced in (i) Public Document number 9,610 dated June 12, 2002, granted
before Xxxxxx Xxxxxx Virues y Xxxxx, Notary Public number 214 for the Federal
District, that confirms the formalization of the certification of the Secretary
to the Board of Directors of Banco Nacional de Obras y Servicios Publicos SNC
(Banobras) and the formalization of his appointment as Trust Delegate of Banco
Nacional de Obras y Servicios Publicos (Banobras), as liquidator of FNM; (ii)
in official document number 1-203 dated August 29, 2001, issued by the Ministry
of Communications and Transport, that confirms the appointment of Banobras as
liquidator FNM; and (iii) in the Decree that establishes the conditions for the
liquidation of FNM, published in the Official Gazette of the Federation on June
28, 2001.
III. The Trustee, through its representative, declares:
a) That in compliance with its obligations under the Purchase
Notification and the Original Agreement, it hereby enters into this Agreement
to formalize the sale of the total of the Ferronalesjub shares that it owns, in
other words, 801,536 (EIGHT
HUNDRED ONE THOUSAND, FIVE HUNDRED THIRTY-SIX) Series L and Sub-series L-2
shares, representative of the capital stock of Grupo TFM, under the terms
and conditions established hereinafter.
b) That its representative has sufficient powers to enter into this
Agreement, as evidenced in public document number 103,032 of February 25,
1994, granted by Xxxxxx Xxxx Xxxxxxxxx, Notary Public number 54 for the
Federal District, the first notarial copy of which is registered in the
Public Register of Commerce of this city under commercial page number
81341, April 14, 1994, said powers not having been revoked, amended,
limited or restricted in any manner to date.
The parties hereto, being in agreement with the aforementioned background and
recitals, hereby mutually agree to submit themselves to the following:
CLAUSES
ONE.- Sale of Shares: (a) FNM hereby sells to TFM, who acquires for itself, all
the Ferronales shares, in other words, 1,676,934 (ONE MILLION SIX HUNDRED
SEVENTY-SIX THOUSAND, NINE HUNDRED THIRTY-FOUR) Series L and Sub-series L-2
that represent approximately 16.66% of the capital stock of Grupo TFM, said
shares being free and clear of all liens and encumbrances and limitation of
title.
The sale of the Ferronales Shares in accordance with this clause is finalized
by (i) the full endorsement of the provisional share certificates in the name
of TFM, carried out herein by the respective directors or duly authorized
attorneys-in-fact of FNM; (ii) the physical delivery of the definitive or
provisional share certificates made hereby to TFM; and (iii) the Secretary to
the Board of Directors of Grupo TFM registering the transfer of the Ferronales
Shares to TFM in the stock transfer book of TFM.
TFM hereby issues to FNM the broadest possible receipt allowed under the law for
said provisional share certificates, for all legal purposes.
(b) Nafin, in representation of and to the order and account of the Trust,
hereby sells to TFM and TFM, who acquire for themselves, all the Ferronalesjub
Shares, in other words, 801,536 (EIGHT HUNDRED ONE THOUSAND , FIVE HUNDRED
THIRTY-SIX) Series L and Sub-series L-2 shares, representative of the capital
stock of Grupo TFM, said shares being free and clear of all liens and
encumbrances and any limitation of title.
The sale of the Ferronalesjub Shares will be finalized by (i) the full
endorsement of the shares certificates issued to TFM through its respective
executives or duly authorized attorneys-in-fact, (ii) the physical delivery of
the definitive or provisional share certificates to TFM and (iii) the Secretary
to the Board of Directors of Grupo TFM registering the transfer of the
Ferronales shares to TFM in the stock transfer book of TFM.
TWO.- Compensation between FNM and TFM In accordance with Article 2185 of the
Federal Civil Code and other articles applicable hereto, compensation of
dividends is liable in this case a Grupo TFM entered into an Assignment
Agreement with TFM, as stated in background XI hereof.
Therefore, and in accordance with the law, compensation is liable under the
terms of Clause Three hereof. Likewise, Grupo TFM hereby grants the broadest
possible settlement to FNM and Nafin with regard to refunding the amount for
incorrect payments of the aforementioned dividends.
THREE.- Price and payment of the Ferronales Shares. TFM shall pay to FNM a price
of US$173,138,963.47 (ONE HUNDRED SEVENTY-THREE MILLION, ONE HUNDRED
THIRTY-EIGHT THOUSAND, NINE HUNDRED SIXTY-THREE DOLLARS, 47/100) legal tender of
the United States of America (USD and/or dollars) for the total of the
Ferronales Shares.
TFM hereby pays to FNM the total price of the Ferronales shares, as follows:
(i) Compensation of the dividend in accordance with the previous clause
for the sum of US$5,635,529.52 (FIVE MILLION, SIX HUNDRED THIRTY FIVE
THOUSAND, FIVE HUNDRED TWENTY-NINE DOLLARS, 52/100) that FNM received from
Grupo TFM, in dollars, on December 24, 2001, said payment being declared
null and void in accordance with the definitive judgment handed down on
March 25, by the eighteenth Civil Court of the Federal District; and
(ii) The remaining amount of US$167,503,433.95 (ONE HUNDRED SIXTY-SEVEN
MILLION, FIVE HUNDRED THREE THOUSAND, FOUR HUNDRED THIRTY-THREE DOLLARS,
95/100) being deposited in bank account number 112705, ABA 000000000, Bank
One Chicago, named by FNM.
By entering into this Agreement, FNM accepts the manner of payment and
hereby grants to TFM the broadest possible receipt allowed under the law with
regard to said payment and amounts, for all legal purposes, except as provided
for in the following paragraph:
Notwithstanding that established in this Clause, TFM hereby undertakes to pay to
FNM the sum of US$158,591.84 (ONE HUNDRED FIFTY-EIGHT THOUSAND, FIVE HUNDRED
NINETY-ONE DOLLARS, 84/100), or its equivalent in Mexican pesos, legal currency
of the United Mexican States (Pesos) at an exchange of $9.7158, in other words,
MX$1,540,846.60 (ONE MILLION, FIVE HUNDRED FORTY THOUSAND, EIGHT HUNDRED
FORTY-SIX PESOS, 60/100), equivalent to the difference between (i) the
calculation of the price per share of the Ferronales Shares on the date on which
TFM effectively pays Nafin the price per share of the Ferronalesjub Shares, as
per the table attached hereto as Exhibit A; and (ii) the sum of
US$173,138,963.47 (ONE HUNDRED SEVENTY-THREE MILLION, ONE HUNDRED THIRTY-EIGHT
THOUSAND, NINE HUNDRED SIXTY-THREE DOLLARS, 47/100), that TFM pays to FNM on
this date of
check number 0277629, issued by BBVA Bancomer S.A. Institution de Banca
Multiple, Grupo Financiero BBVA Bancomer.
FOUR.- Price and payment of Ferronalesjub Shares. The price that TFM pays on
this date to Nafin for the total of the Ferronalesjub shares is
US$82,832,257.73 (EIGHTY-TWO MILLION EIGHT HUNDRED AND THIRTY-TWO THOUSAND TWO
HUNDRED AND FIFTY-SEVEN DOLLARS 73/100), in accordance with the document
attached hereto as Exhibit A. Said sum has been deposited in bank account
number 287-571-492-0, in the Banco de Mexico.
By entering into this Agreement, Nafin accepts the manner of payment and hereby
grants TFM the broadest possible receipt allowed under the law with regard to
said payment, for all legal purposes.
FIVE.- Indemnity against dispossession. FNM and Nafin hereby agree and expressly
and irrevocably undertake to TFM that they shall to answer for indemnity against
dispossession of the Ferronales Shares and the Ferronalesjub Shares,
respectively, under the terms of Article 2119 and other relative and applicable
terms of the Federal Civil Code.
SIX.- Taxes. The parties hereby agree that any taxes, rights and any other
contribution incurred on account of the execution, performance and compliance
with this agreement shall be paid by the party that is liable to pay them, or
that in any other manner incurs them, in accordance with applicable tax law.
SEVEN.- Amendments. No amendment or dispensation to the terms and conditions
hereof, nor any agreement made for any of the parties to fail to comply with
said terms and conditions shall be valid unless it is confirmed in writing and
signed by all parties and, even in this case, said amendment, dispensation or
agreement shall only be valid for the specific purpose for which it has been
granted.
EIGHT.- Notifications, etc. All notifications and any other communications
hereunder shall be made in writing and sent to the address that each party
states herein, or to any other address that any of the parties indicates to any
other party hereto, in accordance with this clause. All notifications and/or
communications shall be effective when they are sent in accordance with this
clause.
NINE.- Applicable law jurisdiction. This Agreement shall be governed by the
Federal Laws of Mexico.
(b) For the interpretation and compliance hereof, the parties hereby submit
themselves to the Federal Courts of Mexico City, Federal District, hereby
waiving any other jurisdiction that may correspond to them on account of their
current or future domicile, or for any other cause.
TEN.- Appearance of the Original Shareholders. Each Original Shareholder
appears as a party hereto, in order to agree, and hereby and by the execution
hereof, each of the Original Shareholders expressly agrees with TFM's purchase
of the total of the Ferronales Shares
and the Ferronalesjub Shares, and with all terms and conditions hereof, for all
legal purposes.
ELEVEN.- Headings. The headings of the clauses and the points herein are for
the benefit of the parties hereto only, and shall not effect their
interpretation.
IN WITNESS HEREOF the parties sign this Agreement, through its respective
directors that are duly authorized for such purpose, on the date noted on page
one.
THE PARTIES
TFM, S.A. DE C.V.
/s/ Xxxx Xxx Xxxxx Xxxxx /s/ Xxxxx Xxxxx Xxxxx
By: Xxxx Xxx Xxxxx Xxxxx By: Xxxxx Xxxxx Xxxxx
Position: Attorney-in-Fact Position: Attorney-in-Fact
Address: Periferico Sur 4839 Piso 4
14010 Federal District.
FERROCARRILES NACIONALES DE MEXICO
/s/ Xxxxx Xxxxxxx Xxxxxxxxxx Murioz
By: Xxxxx Xxxxxxx Xxxxxxxxxx Murioz
Position: Trust Delegate
Banco Nacional de Obras y Servicios Publicos SNC
FNM Liquidator
Address: Xxxxxxx Xxxxx Xxxxxx Xx. 000
00000 Xxxxxx City, Federal District.
NACIONAL FINANCIERA SNC INSTITUCION DE BANCA DE DESARROLLO
/s/ Xxxxxxx Xxxxxxx Xxxxxx
By: Xxxxxxx Xxxxxxx Xxxxxx
Position: General Trust Delegate
Address: Xxxxxxxxxxx Xxx 0000 Xxxxx 0, xxxx 0
Xxxxxx City, Federal District, 01020
ALSO APPEARING:
GRUPO TFM, S.A. DE C.V.
/s/ Xxxx Xxx Xxxxx Xxxxx /s/ Xxxxx Xxxxx Xxxxx
By: Xxxx Xxx Xxxxx Xxxxx By: Xxxxx Xxxxx Xxxxx
Position: Attorney-in-Fact Position: Attorney-in-Fact
Address: Periferico Sur 4829 Piso 4
00000, Xxxxxxx Xxxxxxxx
GRUPO TMM, S.A. DE C.V.
/s/ Xxxx Xxxxxx Murioz Xxxxxxx /s/ Xxxxxx Xxxxxxx Xxxxxxx
By: Xxxx Xxxxxx Murioz Xxxxxxx By: Xxxxxx Xxxxxxx Xxxxxxx
Position: Attorney-in-Fact Position: Attorney-in-Fact
Domicile: Xxxxxxx xx xx Xxxxxxx 0000
Xxxxxx Xxxx, Xxxxxxx Xxxxxxxx 00000
TMM MULTIMODAL S.A. DE C.V.
/s/ Xxxx Xxxxxx Murioz Xxxxxxx /s/ Xxxxxx Xxxxxxx Xxxxxxx
By: Xxxx Xxxxxx Murioz Xxxxxxx By: Xxxxxx Xxxxxxx Xxxxxxx
Position: Attorney-in-Fact Position: Attorney-in-Fact
Address: Xxxxxxx xx xx Xxxxxxx 0000
Xxxxxx City, Federal District, 14010
CAYMEX TRANSPORTATION INC.
/s/ Xxxxx Xxxxxxx Xxxxxx
By: Xxxxx Xxxxxxx Xxxxxx
Position: Attorney-in-Fact
Address: Bosque de Ciruelos 168, Piso 6
Xxxxxx Xxxx, Xxxxxxx Xxxxxxxx, 00000
Copies to: Kansas City Southern
000 Xxxx 00xx Xx., Xxxxxx Xxxx, XX. 00000
Attn.: General Counsel
EXHIBIT A
DAILY PRICE OF GRUPO TFM SHARES
DATE PRICE PER SHARE FNM NAFIN TOTAL
--------- --------------- -------------- ------------- --------------
1,767,934 801,536 2,478,470
JUL-19-02 103.247333208 173,138,963.47 82,756,454.47 255,895,417.94
JUL-22-02 103.275704959 173,186,541.02 82,779,195.45 255,965,736.47
JUL-23-02 103.285162209 173,202,400.20 82,786,775.78 255,989,175.98
JUL-24-02 103.294619459 173,218,259.39 82,794,356.10 256,012,615.49
JUL-25-02 103.304076709 173,234,118.57 82,801,936.43 256,036,055.00
JUL-26-02 103.313533959 173,247,977.76 82,809,516.76 256,059,494.51
JUL-29-02 103.341905709 173,297,555.31 82,832,257.73 256,129,813.04
JUL-30-02 103.351362959 173,313,414.49 82,839,838.06 256,153,252.65
JUL-31-02 103.360820209 173,329,273.68 82,847,418.39 256,176,692.06
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I, Ma Xxxx Xxxxx, Expert Translator, authorized by the Supreme Court of Justice
of Mexico City, by resolution published in the Official Gazette dated
February 15, 1997, certify that the above translation on 11 pages is to the
best of my knowledge true and complete.
Mexico City, November 11, 2002
