EXCHANGE AGENT AGREEMENT
Exhibit 99.3
November ___, 2005
Ladies and Gentlemen:
TFM, S.A. de C.V. (the “Company”) proposes to make an offer (the “Exchange Offer”) to exchange
up to $460,000,000 aggregate principal amount of its 9 3/8% Senior Notes due 2012 (the “Exchange
Notes”) for an equal aggregate principal amount of its outstanding 9 3/8% Senior Notes due 2012
(the “Old Notes”). The terms and conditions of the Exchange Offer as currently contemplated are
set forth in a prospectus (the “Prospectus”) included in the Company’s registration statement on
Form S-4 (File No. 333-129566) as amended (the “Registration Statement”) filed with the Securities
and Exchange Commission (the “SEC”) on November 8, 2005. The Old Notes and the Exchange Notes are
collectively referred to in this Exchange Agent Agreement (this “Agreement”) as the “Notes” or the
“Securities.” Capitalized terms used herein and not defined shall have the respective meanings
ascribed to them in the Registration Statement or the accompanying letter of transmittal (the
“Letter of Transmittal”).
The Company hereby appoints The Bank of Nova Scotia Trust Company of New York to act as
exchange agent (the “Exchange Agent”) in connection with the Exchange Offer. References
hereinafter to “you” shall refer to The Bank of Nova Scotia Trust Company of New York.
The Exchange Offer is expected to be commenced by the Company on or about December [ ],
2005. The Letter of Transmittal accompanying the Registration Statement is to be used by the
holders of the Old Notes to tender into the Exchange Offer, and contains instructions with respect
to the delivery of Old Notes tendered. The Exchange Agent’s obligations with respect to the
receipt and inspection of each Letter of Transmittal in connection with the Exchange Offer shall be
satisfied for all purposes hereof by (1) inspection of the electronic message transmitted to the
Exchange Agent by Exchange Offer participants in accordance with the Automated Tender Offer Program
(“ATOP”) of The Depository Trust Company (“DTC”), and by otherwise observing and complying with all
procedures established by DTC in connection with ATOP, to the extent that ATOP is utilized by
Exchange Offer participants, or (2) by inspection of the Letter of Transmittal submitted by each
holder of Old
Notes who does not use ATOP and submits a physical Letter of Transmittal to the
Exchange Agent.
The Exchange Offer shall expire at 5:00 p.m., New York City time, on [ ] or on such
later date or time to which the Company may extend the Exchange Offer (the “Expiration Date”).
Subject to the terms and conditions set forth in the Registration Statement, the Company expressly
reserves the right to extend the Exchange Offer from time to time and may extend the Exchange Offer
by giving oral (confirmed in writing) or written notice to you, and by giving holders of Notes
notice by press release, at any time before 9:00 a.m., New York City time, on the business day
following the previously scheduled Expiration Date, and in such case the term “Expiration Date”
shall mean the time and date on which the Exchange Offer as so extended shall expire.
The Company expressly reserves the right, in its sole discretion, to delay, amend or terminate
the Exchange Offer, and not to accept for exchange any Old Notes not theretofore accepted for
exchange, upon the occurrence of any of the conditions of the Exchange Offer specified in the
Registration Statement under the caption “The Exchange Offer — Expiration Date; Extensions;
Amendments.” The Company will give to you as promptly as practicable oral (confirmed in writing)
or written notice of any delay, amendment, termination or non-acceptance.
In carrying out your duties as Exchange Agent, you are to act in accordance with the following
instructions:
1. You will perform such duties and only such duties as are specifically set forth herein or
in the section of the Registration Statement captioned “The Exchange Offer”, in the Letter of
Transmittal accompanying the Registration Statement and such duties which are necessarily
incidental thereto.
2. You will establish a book-entry account with respect to the Old Notes at DTC for purposes
of the Exchange Offer within two business days after the effective date of the Registration
Statement, and any financial institution that is a participant in DTC’s systems may make book-entry
delivery of the Old Notes by causing DTC to transfer such Old Notes into your account in accordance
with DTC’s procedure for such transfer.
3. You are to examine each of the Letters of Transmittal (or confirmation of book-entry
transfers into your account at the book-Entry Transfer Facility) and any other documents delivered
or mailed to you by or for holders of the Old Notes to ascertain whether (i) the Letters of
Transmittal, and any such other documents are duly executed and properly completed in accordance
with instructions set forth therein and that such book-entry confirmations are in due and proper
form and contain the information required to be set forth therein, and (ii) the Old Notes have
otherwise been properly tendered. In each case where the Letter of Transmittal or any other
document has been improperly completed or executed or where book-entry
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confirmations are not in due
and proper form or omit certain information or some other irregularity in connection with the
acceptance of the Exchange Offer exists, you will endeavor to inform the presenters of the need for
fulfillment of all requirements and to take any other action as may be necessary or advisable to
cause such irregularity to be corrected.
4. Subject to Section 5 below, tenders of Old Notes may be made only as set forth in the
Letter of Transmittal and Old Notes shall be considered properly tendered to you only when tendered
in accordance with the procedures set forth therein.
5. With the approval of the Chief Financial Officer, Secretary or any Vice President of the
Company (such approval, if given orally, promptly to be confirmed in writing) or any other party
designated by such officer in writing, you are authorized to waive any irregularities in connection
with any tender of Old Notes pursuant to the Exchange Offer. You are not otherwise authorized to
waive any such irregularities.
6. You shall promptly advise the Company with respect to any Old Notes delivered subsequent to
the Expiration Date and accept its instructions with respect to disposition of such Old Notes.
7. You shall accept tenders:
(a) in cases where the Old Notes are registered in two or more names only if signed by all
named holders;
(b) in cases where the signing person (as indicated on the Letter of Transmittal) is acting in
a fiduciary or a representative capacity only when proper evidence of his or her authority so to
act is submitted; and
(c) from persons other than the holder of Old Notes provided that customary transfer
requirements, including any payment of applicable transfer taxes, are fulfilled.
You shall accept partial tenders of Old Notes where so indicated and as permitted in the
Letter of Transmittal and return any untendered Old Notes through the facilities of DTC to the
holder (or such other person as may be designated in the Letter of Transmittal) as promptly as
practicable after expiration or termination of the Exchange Offer.
8. Upon satisfaction or waiver of all of the conditions to the Exchange Offer, the Company
will notify you (such notice if given orally, promptly to be confirmed in writing) of its
acceptance, promptly after the Expiration Date, of all Old Notes properly tendered and you, on
behalf of the Company, will cause the exchange of such Old Notes for Exchange Notes and cause such
Old Notes to be cancelled. Delivery of Exchange Notes will be made on behalf of the Company by
you, subject to due authorization, execution and delivery of such Exchange Notes of the Company, at
the rate of $1,000 principal amount of Exchange Notes (subject to adjustment) for each $1,000
principal amount of the Old Notes tendered, and, in the case of Old
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Notes tendered, promptly after
notice (such notice if given orally, promptly to be confirmed in writing) of acceptance of said Old
Notes by the Company; provided, however, that in all cases, Old Notes tendered
pursuant to the Exchange Offer will be exchanged only after confirmation of book-entry transfer
into your account at DTC, a properly completed and duly executed Letter of Transmittal (or
facsimile thereof) or an Agent’s Message (as defined in the Registration Statement) with any
required signature guarantees and any other required document. Unless
otherwise instructed in writing by the Company, you shall issue Exchange Notes only in
denominations of $1,000 or any integral multiple thereof.
9. Tenders pursuant to the Exchange Offer are irrevocable after the Expiration Date. Subject
to the terms and upon the conditions set forth in the Registration Statement and the Letter of
Transmittal, Old Notes tendered pursuant to the Exchange Offer may be withdrawn at any time on or
prior to the Expiration Date in accordance with the terms of the Exchange Offer.
10. The Company shall not be required to accept any Old Notes tendered if any of the
conditions set forth in the Registration Statement are not met. Notice of any decision by the
Company not to accept any Old Notes tendered shall be given (such notices if given orally, promptly
shall be confirmed in writing) by the Company to you.
11. If, pursuant to the Registration Statement, the Company does not accept for exchange all
or part of the Old Notes tendered because of an invalid tender, the occurrence of certain other
events set forth in the Registration Statement or otherwise, you shall as soon as practicable after
the expiration or termination of the Exchange Offer return those unaccepted Old Notes by
appropriate book-entry transfer, together with any related required documents and the Letters of
Transmittal relating thereto that are in your possession, to the persons who effected such
book-entry transfer.
12. You are not authorized to pay or offer to pay any concessions, commissions or solicitation
fees to any broker, dealer, bank or other persons or to engage or utilize any persons to solicit
tenders.
13. As Exchange Agent hereunder you:
(a) will be regarded as making no representations and having no responsibilities as to the
validity, sufficiency, value or genuineness of any of the Old Notes deposited with you pursuant to
the Exchange Offer, and will not be required to and will make no representation as to the validity,
value or genuineness of the Registration Statement;
(b) shall not be obligated to take any legal action hereunder which might in your reasonable
judgment involve any expense or liability, unless you shall have been furnished with reasonable
indemnity;
(c) shall not be liable to the Company for any action taken or omitted by you, or any action
suffered by you to be taken or omitted, without negligence, misconduct or bad faith
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on your part,
by reason of or as a result of the administration of your duties hereunder in accordance with the
terms and conditions of this Agreement or by reason of your compliance with the instructions set
forth herein or with any written or oral instructions delivered to you pursuant hereto, and may
reasonably rely on and shall be protected in acting in good faith in reliance upon any certificate,
instrument, opinion, notice, letter, facsimile or other document or security delivered to you and
reasonably believed by you to be genuine and to have been signed by the proper party or parties;
(d) may reasonably act upon any tender, statement, request, comment, agreement or other
instrument whatsoever not only as to its due execution and validity and effectiveness of its
provisions, but also as to the truth and accuracy of any information contained therein, which you
shall in good faith reasonably believe to be genuine or to have been signed or represented by a
proper person or persons;
(e) may rely on and shall be protected in acting upon written notice or oral instructions from
the Chief Financial Officer, Secretary or any Vice President of the Company, Xxxx Xxx or Xxxxxxxx
Xxxxxxxxx of Xxxxxxxxxxxx Xxxx & Xxxxxxxxx LLP, the Company’s counsel, or any other party
designated by any such officer of the Company;
(f) shall not advise any person tendering Old Notes pursuant to the Exchange Offer as to
whether to tender or refrain from tendering all or any portion of Old Notes or as to the market
value, decline or appreciation in market value of any Old Notes that may or may not occur as a
result of the Exchange Offer or as to the market value of the Exchange Notes;
(g) may consult with counsel of your choice with respect to any questions relating to your
duties and responsibilities, and the written advice or opinion of such counsel shall be full and
complete authorization and protection in respect of any action taken, suffered or omitted by you
hereunder in good faith and in reliance thereon; and
(h) shall act solely as agent of the Company and shall not assume any obligation, or
relationship of agency or trust for or, with any of the owners or holders of the Old Notes.
14. You shall send by first class mail to all holders of Old Notes a copy of the Registration
Statement, the Letter of Transmittal, the Notice of Guaranteed Delivery (as defined in the
Registration Statement) and such other documents (collectively, the “Exchange Offer Documents”) as
may be furnished by the Company to commence the Exchange Offer and take such other action as may
from time to time be requested by the Company or its counsel (and such other action as you may
reasonably deem appropriate) to furnish copies of the Exchange Offer Documents or such other forms
as may be approved from time to time by the Company, to all holders of Old Notes requesting such
documents and to accept and comply with telephone requests for information relating to the Exchange
Offer, provided that such information shall relate only to the procedures for accepting (or
withdrawing from) the Exchange Offer. The
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Company will furnish you with copies of such documents
at your request. All other requests for information relating to the Exchange Offer shall be
directed to the Company, Attention: Chief Financial Officer, at the Company’s offices at Xx.
Xxxxxxxxxx Xxx Xx. 0000, 0xx. Piso, Col. Xxxxxxx xxx Xxxxxxxx, 00000 Xxxxxx, D.F., México, (5255)
0000-0000 (telephone), (5255) 0000-0000 (facsimile).
15. You shall advise by facsimile transmission, email and telephone to the Chief Financial
Officer or Secretary of the Company, and such other person or persons as the Company may request in
writing, daily, and more frequently during the week immediately preceding the
Expiration Date and if otherwise requested, up to and including the Expiration Date, as to the
aggregate principal amount of Old Notes which have been tendered pursuant to the Registration
Statement and the items received by you pursuant to the Exchange Offer and this Agreement,
separately reporting and giving cumulative totals as to items properly received and items
improperly received. In addition, you will also inform, and cooperate in making available to, the
Company or any such other person or persons as the Company requests in writing from time to time
prior to the Expiration Date of such other information as it or he or she reasonably requests.
Such cooperation shall include, without limitation, the granting by you to the Company and such
person as the Company may request of access to those persons on your staff who are responsible for
receiving tenders, in order to ensure that immediately prior to the Expiration Date the Company
shall have received information in sufficient detail to enable it to decide whether to extend the
Exchange Offer. You shall prepare a final list of all persons whose tenders were accepted, the
aggregate principal amount of Old Notes tendered, the aggregate principal amount of Old Notes
accepted and the identity of any participating broker-dealers and the aggregate principal amount of
Exchange Notes delivered to each, and deliver said list to the Company.
16. Letters of Transmittal and Notices of Guaranteed Delivery shall be stamped by you as to
the date and, after the expiration of the Exchange Offer, the time of receipt thereof shall be
preserved by you for a period of time at least equal to the period of time you customarily preserve
other records pertaining to the transfer of securities, or one year, whichever is longer, and
thereafter shall be delivered by you to the Company. You shall dispose of unused Letters of
Transmittal and other surplus materials in accordance with your customary procedures.
17. For services rendered as Exchange Agent hereunder you shall be entitled to such
compensation and reimbursement of out-of-pocket expenses as agreed in the attached Schedule A.
18. You hereby acknowledge receipt of the Registration Statement, the Letter of Transmittal
and the other documents associated with the Exchange Offer attached hereto and further acknowledge
that you have examined each of them. Any inconsistency between this Agreement, on the one hand,
and the Registration Statement, the Letter of Transmittal and such other forms (as they may be
amended from time to time), on the other hand, shall be resolved in favor of the Registration
Statement, the Letter of Transmittal and such other forms, except with
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respect to the duties,
liabilities and indemnification of you as Exchange Agent which shall be controlled by this
Agreement.
19. The Company agrees to indemnify and hold you and your officers, director, employees,
agents and affiliates harmless in your capacity as Exchange Agent hereunder against any liability,
cost or expense, including reasonable attorneys’ fees and expenses, arising out of or in connection
with your appointment as Exchange Agent and the performance of your duties hereunder, including,
without limitation, any act, omission, delay or refusal made by you in reasonable reliance upon any
signature, endorsement, assignment, certificate, order, request, notice, instruction or other
instrument or document reasonably believed by you to be valid, genuine and sufficient and in
accepting any tender or effecting any transfer of Old Notes
reasonably believed by you in good faith to be authorized, and in delaying or refusing in good
faith to accept any tenders or effect any transfer of Old Notes; provided, however,
that the Company shall not be liable for indemnification or otherwise for any loss, liability, cost
or expense to the extent arising out of your gross negligence, willful misconduct or bad faith.
The Company’s obligations under this paragraph 19 shall survive the termination of this Agreement
and the discharge of your obligation hereunder and any other termination of this Agreement under
any federal or state bankruptcy law.
20. This Agreement and your appointment as Exchange Agent hereunder shall be construed and
enforced in accordance with the laws of the State of New York applicable to agreements made and to
be performed entirely within such state, and shall inure to the benefit of, and the obligations
created hereby shall be binding upon, the successors and assigns of each of the parties hereto and
nothing in this Agreement, express or implied, is intended to or shall confer upon any other person
any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
Without limitation of the foregoing, the parties hereto expressly agree that no holder of Old Notes
or Exchange Notes shall have any right, benefit or remedy of any nature whatsoever under or by
reason of this Agreement.
21. This Agreement may be executed in two or more counterparts, each of which shall be deemed
to be an original and all of which taken together shall constitute one and the same agreement.
22. In case any provision of this Agreement shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
23. This Agreement shall not be deemed or construed to be modified, amended, rescinded,
canceled or waived, in whole or in part, except by a written instrument signed by a duly authorized
representative of the party to be charged.
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24. Unless otherwise provided herein, all notices, requests and other communications to any
party hereunder shall be in writing (including facsimile) and shall be given to such party,
addressed to it, as its address or telecopy number set forth below:
If to the Company:
TFM, S.A. de X.X.
Xx. Xxxxxxxxxx Xxx Xx. 0000, 0xx. Piso,
Col. Parques del Pedregal, 14010 México, D.F., México
Attention: Xxxx X. Xxxxxxx
Facsimile: (5255) 5447-5707
Xx. Xxxxxxxxxx Xxx Xx. 0000, 0xx. Piso,
Col. Parques del Pedregal, 14010 México, D.F., México
Attention: Xxxx X. Xxxxxxx
Facsimile: (5255) 5447-5707
With a copy to:
Xxxx Xxx, Esq.
Xxxxxxxx Xxxxxxxxx, Esq.
Xxxxxxxxxxxx Xxxx & Xxxxxxxxx LLP
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx Xxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Xxxxxxxx Xxxxxxxxx, Esq.
Xxxxxxxxxxxx Xxxx & Xxxxxxxxx LLP
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx Xxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
If to the Exchange Agent:
The Bank of Nova Scotia Trust Company of New York
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
25. Unless terminated earlier by the parties hereto, this Agreement shall terminate 90 days
following the Expiration Date. Notwithstanding the foregoing, Paragraphs 17 and 19 shall survive
the termination of this Agreement. Upon any termination of this Agreement, you shall promptly
deliver to the Company any certificates for notes, funds or property (including, without
limitation, Letters of Transmittal and any other documents relating to the Exchange Offer ) then
held by you as Exchange Agent under this Agreement.
26. This Agreement shall be binding and effective as of the date hereof.
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Please acknowledge receipt of this Agreement and confirm the arrangements herein provided by
signing and returning the enclosed copy.
| TFM, S.A. de C.V. | ||||||
| By: | ||||||
| Name: Xxxx X. Xxxxxxx | ||||||
| Title: Attorney in Fact | ||||||
Accepted as the date
first above written:
The Bank of Nova Scotia Trust Company Of New York,
as exchange agent
as exchange agent
By: |
||||
| Title: |
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Schedule A
TFM, S.A. de C.V.
The Bank of Nova Scotia Trust Company of New York
SCHEDULE OF FEES
To cover the acceptance of the appointment, the review and consideration fo the documentation,
communication with the working parties, normal functions of the Exchange Agent, including the
establishment and maintenance of required records and accounts distribution of tender
documentation, and receipt of tendered Notes and supporting documentation.
One-Time Fee of $4,000.00
Out-of-pocket expenses, DTC service charges and expenses, legal fees and expenses, if and when
incurred, fees and disbursements and services of an unanticipated or extraordinary nature will be
charged when or if incurred.
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