EXHIBIT 99.4
FORM OF EXCHANGE AGENT AGREEMENT
____________,
EXCHANGE AGENT AGREEMENT
The Bank of New York
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Attention: Corporate Trust Administration
Ladies and Gentlemen:
TFM, S.A. de C.V., a variable capital corporation (the
"Company"), proposes to make an offer (the "Exchange Offer") to exchange
unregistered $180,000,000 aggregate principal amount of its 12.50% Senior Notes
due 2012 (the "Outstanding Notes") for new $180,000,000 aggregate principal
amount of its 12.50% Senior Notes due 2012 (the "Exchange Notes"), which have
been registered under the Securities Act of 1933, as amended. The terms and
conditions of the Exchange Offer as currently contemplated are set forth in a
prospectus, dated ________, 2002 (the "Prospectus"), proposed to be distributed
to all record holders of the Outstanding Notes. The Outstanding Notes and the
Exchange Notes are collectively referred to herein as the "Notes".
The Company hereby appoints The Bank 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 New York.
The Exchange Offer is expected to be commenced by the Company
on or about _____________. The Letter of Transmittal accompanying the Prospectus
(or in the case of book-entry securities, the Automated Tender Offer Program
("ATOP") of the Book-Entry Transfer Facility (as defined below)) is to be used
by the holders of the Outstanding Notes to accept the Exchange Offer and
contains instructions with respect to the delivery of certificates for
Outstanding Notes tendered in connection therewith.
The Exchange Offer shall expire at 5:00 p.m., New York City
time, on _________ or on such subsequent 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 Prospectus, 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 before 9:00 a.m., New York City time, on the
business day following the previously scheduled Expiration Date.
The Company expressly reserves the right to amend or terminate
the Exchange Offer, and not to accept for exchange any Outstanding Notes not
previously accepted for exchange, upon the occurrence of any of the conditions
of the Exchange Offer specified in the Prospectus under the caption "The
Exchange Offer -- Conditions." The Company will give oral (confirmed in writing)
or written notice of any amendment, termination or nonacceptance to you as
promptly as practicable.
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 other such duties as are
specifically set forth in the section of the Prospectus captioned "The Exchange
Offer," in the Letter of Transmittal accompanying the Prospectus (the "Letter of
Transmittal") or as specifically set forth herein; provided, however, that in no
way will your general duty to act in good faith be discharged by the foregoing.
2. You will establish a book-entry account with respect to
the Outstanding Notes at The Depository Trust Company (the "Book-Entry Transfer
Facility") for purposes of the Exchange Offer within two business days after the
date of the Prospectus, and any financial institution that is a participant in
the Book-Entry Transfer Facility's systems may make book-entry delivery of the
Outstanding Notes by causing the Book-Entry Transfer Facility to transfer such
Outstanding Notes into your account in accordance with the Book-Entry Transfer
Facility's procedure for such transfer.
3. You are to examine each of the Letters of Transmittal and
certificates for Outstanding Notes (or confirmation of book-entry transfer into
your account at the Book-Entry Transfer Facility) and any other documents
delivered or mailed to you by or for holders of the Outstanding 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 (ii) the Outstanding 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 any of the certificates for Outstanding
Notes are not in proper form for transfer 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 reasonably necessary or advisable to cause such
irregularity to be corrected.
4. With the approval of the Acting Chief Financial Officer
or Treasurer of the Company (such approval, if given orally, to be confirmed in
writing) or any other party designated in writing, by such an officer, you are
authorized to waive any
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irregularities in connection with any tender of Outstanding Notes pursuant to
the Exchange Offer.
5. Tenders of Outstanding Notes may be made only as set
forth in the Letter of Transmittal and in the section of the Prospectus
captioned "The Exchange Offer -- Procedures for Tendering", and Outstanding
Notes shall be considered properly tendered to you only when tendered in
accordance with the procedures set forth therein.
Notwithstanding the provisions of this Section 5, Outstanding
Notes which the Acting Chief Financial Officer or Treasurer of the Company shall
approve as having been properly tendered shall be considered to be properly
tendered (such approval, if given orally, shall be confirmed in writing).
6. You shall advise the Company with respect to any
Outstanding Notes received subsequent to the Expiration Date and accept its
instructions with respect to disposition of such Outstanding Notes.
7. You shall accept tenders:
(a) in cases where the Outstanding 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 registered holder of
Outstanding Notes, provided that customary transfer requirements, including
payment of any applicable transfer taxes, are fulfilled.
You shall accept partial tenders of Outstanding Notes where so
indicated and as permitted in the Letter of Transmittal and deliver certificates
for Outstanding Notes to the transfer agent for split-up and return any
untendered Outstanding Notes 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,
to be confirmed in writing) of its acceptance, promptly after the Expiration
Date, of all Outstanding Notes properly tendered and you, on behalf of the
Company, will exchange such Outstanding Notes for Exchange Notes and cause such
Outstanding Notes to be cancelled. Delivery of Exchange Notes will be made on
behalf of the Company by you at the rate of $100 principal amount of Exchange
Notes for each $100 principal amount of the corresponding series of Outstanding
Notes tendered promptly after notice (such notice if given orally, to be
confirmed in writing) of acceptance of said Outstanding
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Notes by the Company; provided, however, that in all cases, Outstanding Notes
tendered pursuant to the Exchange Offer will be exchanged only after timely
receipt by you of certificates for such Outstanding Notes (or confirmation of
book-entry transfer into your account at the Book-Entry Transfer Facility), a
properly completed and duly executed Letter of Transmittal (or manually signed
facsimile thereof) with any required signature guarantees and any other required
documents. You shall issue Exchange Notes only in denominations of $100 or any
integral multiple thereof.
9. Tenders pursuant to the Exchange Offer are irrevocable,
except that, subject to the terms and upon the conditions set forth in the
Prospectus and the Letter of Transmittal, Outstanding Notes tendered pursuant to
the Exchange Offer may be withdrawn at any time prior to the Expiration Date.
10. The Company shall not be required to exchange any
Outstanding Notes tendered if any of the conditions set forth in the Exchange
Offer are not met. Notice of any decision by the Company not to exchange any
Outstanding Notes tendered shall be given (if given orally, to be confirmed in
writing) by the Company to you.
11. If, pursuant to the Exchange Offer, the Company does not
accept for exchange all or part of the Outstanding Notes tendered because of an
invalid tender, the occurrence of certain other events set forth in the
Prospectus under the caption "The Exchange Offer -- Conditions" or otherwise,
you shall as soon as practicable after the expiration or termination of the
Exchange Offer return those certificates for unaccepted Outstanding Notes (or
effect 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 deposited them.
12. All certificates for reissued Outstanding Notes,
unaccepted Outstanding Notes or for Exchange Notes shall be forwarded by
first-class mail.
13. 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 person to solicit tenders.
14. As Exchange Agent hereunder you:
(a) shall have no duties or obligations other than
those specifically set forth in the section of the Prospectus captioned "The
Exchange Offer," in the Letter of Transmittal accompanying the Prospectus or
herein or as may be subsequently agreed to in writing between you and the
Company;
(b) will be regarded as making no representations and
having no responsibilities as to the validity, sufficiency, value or genuineness
of any of the certificates or the Outstanding Notes represented thereby
deposited with you pursuant to
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the Exchange Offer, and will not be required to and will make no representation
as to the validity, value or genuineness of the Exchange Offer;
(c) shall not be obligated to take any legal action
hereunder which might in your judgment involve any expense or liability, unless
you shall have been furnished with reasonable indemnity satisfactory to you;
(d) may conclusively rely on and shall be protected in
acting in reliance upon any certificate, instrument, opinion, notice, letter,
telegram or other document or security delivered to you and reasonably believed
by you to be genuine and to have been signed or presented by the proper person
or persons;
(e) may act upon any tender, statement, request,
document, agreement, certificate 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 believe to be genuine or to have been signed or presented by the
proper person or persons;
(f) may rely on and shall be protected in acting upon
written or oral instructions from any authorized officer of the Company;
(g) may consult with counsel of your selection with
respect to any questions relating to your duties and responsibilities and the
advice or opinion of such counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted to be taken by
you hereunder in good faith and in accordance with the advice or opinion of such
counsel; and
(h) shall not advise any person tendering Outstanding
Notes pursuant to the Exchange Offer as to the wisdom of making such tender or
as to the market value or decline or appreciation in market value of any
Outstanding Notes.
15. You shall take such action as may from time to time be
requested by the Company (and such other action as you may deem appropriate) to
furnish copies of the Prospectus, Letter of Transmittal and the Notice of
Guaranteed Delivery (as defined in the Prospectus) or such other forms as may be
approved from time to time by the Company, to all persons 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
Company will furnish you with copies of such documents on your request. All
other requests for information relating to the Exchange Offer shall be directed
to the Company, Attention: Treasurer.
16. You shall advise by cable, telex, facsimile transmission
or telephone, and promptly thereafter confirm in writing, the Treasurer of the
Company (at the facsimile number ▇▇▇-▇▇▇-▇▇▇-▇▇▇▇), and such other person or
persons as the
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Company may request, daily (and more frequently during the week immediately
preceding the Expiration Date if requested) up to and including the Expiration
Date, as to the amount of Outstanding Notes which have been tendered pursuant to
the Exchange Offer and the items received by you pursuant to 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 upon
oral request made from time to time prior to the Expiration Date of such other
information as they may reasonably request. 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 Outstanding Notes tendered, the aggregate principal amount of
Outstanding Notes accepted and deliver said list to the Company.
17. 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 and shall be preserved by you for a period
of time at least equal to the period of time you preserve other records
pertaining to the transfer of securities. You shall dispose of unused Letters of
Transmittal and other surplus materials by returning them to the Company.
18. For services rendered as Exchange Agent hereunder, you
shall be entitled to such compensation as shall be agreed in writing between the
Company and you. The provisions of this section shall survive the termination of
this Agreement.
19. You hereby acknowledge receipt of the Prospectus and the
Letter of Transmittal. Any inconsistency between this Agreement, on the one
hand, and the Prospectus and the Letter of Transmittal (as they may be amended
from time to time), on the other hand, shall be resolved in favor of the latter
two documents, except with respect to your duties, liabilities and
indemnification as Exchange Agent which shall be controlled by this Agreement.
20. The Company covenants and agrees to indemnify and hold
you harmless against any and all loss, liability, cost or expense, including
attorneys' fees and expenses, arising out of or in connection with any act,
omission, delay or refusal made by you in reliance upon any signature,
endorsement, assignment, certificate, order, request, notice, instruction or
other instrument or document believed by you to be valid, genuine and sufficient
and in accepting any tender or effecting any transfer of Outstanding Notes
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 Outstanding Notes;
provided, however, that the Company shall not be liable for indemnification or
otherwise for any loss, liability,
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cost or expense to the extent determined by a court of competent jurisdiction to
have been caused by your own gross negligence or willful misconduct. In no case
shall the Company be liable under this indemnity with respect to any claim
against you unless the Company is notified by you, by letter or facsimile
confirmed by letter, of the written assertion of a claim against you or of any
other action commenced against you, promptly after you shall have received any
such written assertion or notice of commencement of action or shall have been
served with a summons in connection therewith. The Company shall be entitled to
participate at its own expense in the defense of any such claim or other action
and, if the Company so elects, the Company shall assume the defense of any suit
brought to enforce any such claim. In the event that the Company shall assume
the defense of any such suit, the Company shall not be liable for the fees and
expenses of any additional counsel thereafter retained by you, so long as the
Company shall retain counsel satisfactory to you to defend such suit, and so
long as you have not determined, in your reasonable judgment, that a conflict of
interest exists between you and the Company. The provisions of this section
shall survive the termination of this Agreement.
21. You shall arrange to comply with all requirements under
the tax laws of the United States, including those relating to missing Tax
Identification Numbers, and shall file any appropriate reports with the Internal
Revenue Service.
22. You shall deliver or cause to be delivered, in a timely
manner to each governmental authority to which any transfer taxes are payable in
respect of the exchange of Outstanding Notes, the Company's check in the amount
of all transfer taxes so payable; provided, however, that you shall reimburse
the Company for amounts refunded to you in respect of your payment of any such
transfer taxes, at such time as such refund is received by you.
23. 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 without regard to conflicts of law principles, 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.
24. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original and all of which
together shall constitute one and the same agreement.
25. 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.
26. This Agreement shall not be deemed or construed to be
modified, amended, rescinded, cancelled or waived, in whole or in part, except
by a written
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instrument signed by a duly authorized representative of the party to be
charged. This Agreement may not be modified orally.
27. Unless otherwise provided herein, all notices, requests
and other communications to any party hereunder shall be in writing (including
facsimile or similar writing) and shall be given to such party, addressed to it,
at its address or telecopy number set forth below:
If to the Company:
TFM, S.A. de C.V.
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▇▇▇. Parques del Pedregal, C.P. 14010
Delegacion Tlalpan
Mexico, D.F., Mexico
Facsimile: (▇▇▇) ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Director
and Acting Chief Financial
Officer, and ▇▇▇▇ ▇▇▇▇▇,
Financial Director and Treasurer
with a copy to:
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▇▇▇▇▇▇, ▇▇▇▇▇▇-▇▇▇▇▇▇▇, Colt & Mosle LLP
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Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Exchange Agent:
The Bank of New York
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Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Trust
Administration
28. Unless terminated earlier by the parties hereto, this
Agreement shall terminate 90 days following the Expiration Date. Notwithstanding
the foregoing,
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Sections 18 and 20 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 then held by you as Exchange Agent
under this Agreement.
29. 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:
Title:
Accepted as of the date
first above written:
THE BANK OF NEW YORK, as Exchange Agent
By: ___________________________________
Name:
Title:
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