EXHIBIT 10.22
EXECUTION COPY
GRUPO TMM, S.A.
and the Subsidiaries signatories hereto,
as Sellers
GRUPO TMM, S.A.
as Sellers' Representative, Guarantor and Servicer
and
THE BANK OF NEW YORK,
as Trustee
on behalf of the Certificateholders
of the Logistics Trust 2000-A
-------------------------
SECOND AMENDED AND RESTATED MASTER TRUST AGREEMENT
Dated as of December 10, 2002
TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS.............................................................................1
Section 1.1 Definitions.......................................................................1
Section 1.2 Other Definitional Provisions....................................................28
Section 1.3 Effectiveness....................................................................29
ARTICLE II CONVEYANCE OF PURCHASED RECEIVABLES; ISSUANCE OF CERTIFICATES..........................29
Section 2.1 Conveyance of Purchased Receivables..............................................29
Section 2.2 Certain Understandings Regarding the Purchased Receivables.......................29
Section 2.3 Acceptance by Trustee............................................................30
Section 2.4 Issuance of Certificates.........................................................30
Section 2.5 Tax Indemnity....................................................................30
Section 2.6 Tax Treatment....................................................................31
Section 2.7 True Sales.......................................................................31
ARTICLE III THE SELLERS............................................................................32
Section 3.1 Representations and Warranties of the Sellers....................................32
Section 3.2 Covenants of the Sellers.........................................................39
Section 3.3 Merger or Consolidation of, or Assumption of the Obligations of any Seller.......47
Section 3.4 Indemnification by TMM...........................................................49
Section 3.5 Guarantor as Sellers' Representative.............................................52
Section 3.6 Sellers May Own Certificates.....................................................52
Section 3.7 Subordinated Certificates........................................................53
Section 3.8 Limitations on Sellers', TMM Multimodal's Liability; Sellers' Right to
Subrogation and Reimbursement....................................................53
ARTICLE IV RIGHTS OF CERTIFICATEHOLDERS AND SELLERS; ALLOCATION AND APPLICATION OF
COLLECTIONS AND RECEIVABLE SHORTFALL PAYMENTS..........................................53
Section 4.1 Establishment of Accounts and Allocations........................................53
Section 4.2 Receivable Shortfall Payments....................................................55
Section 4.3 Multimodal Prepayment Proceeds and Port Shares Prepayment Proceeds...............56
ARTICLE V THE CERTIFICATES.......................................................................58
Section 5.1 The Certificates.................................................................58
Section 5.2 Authentication of Certificates...................................................59
Section 5.3 Registration of Transfer and Exchange of Certificates............................60
Section 5.4 Mutilated, Destroyed, Lost or Stolen Certificates................................64
Section 5.5 Persons Deemed Owners............................................................64
Section 5.6 Appointment of Paying Agent......................................................65
Section 5.7 Access to List of Certificateholders' Names and Addresses........................66
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TABLE OF CONTENTS
(continued)
Page
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Section 5.8 Authenticating Agent.............................................................67
Section 5.9 Tender of Sellers' Certificate...................................................68
Section 5.10 Global Certificate; Euro-Certificate Exchange Date...............................70
Section 5.11 Book-Entry Certificates..........................................................70
Section 5.12 Notices to Clearing Agency.......................................................71
Section 5.13 Definitive Certificates..........................................................71
Section 5.14 Subordination of Subordinated Certificates and Sellers' Certificate..............71
ARTICLE VI THE SERVICER...........................................................................73
Section 6.1 Acceptance of Appointment and Other Matters Relating to the Servicer.............73
Section 6.2 Representations and Warranties of the Servicer...................................74
Section 6.3 Covenants of the Servicer........................................................75
Section 6.4 [Intentionally Omitted]..........................................................77
Section 6.5 Termination of the Servicer......................................................77
Section 6.6 Assumption of the Obligations of the Servicer....................................78
Section 6.7 Resignation of the Servicer......................................................79
Section 6.8 Limitation on Liability of the Servicer and Others...............................79
Section 6.9 Indemnification of the Servicer..................................................79
Section 6.10 Access to Certain Documentation and Information Regarding the Purchased
Receivables......................................................................80
Section 6.11 Servicer May Own Certificates....................................................80
ARTICLE VII RAPID AMORTIZATION EVENTS..............................................................80
Section 7.1 Rapid Amortization Events........................................................80
Section 7.2 Additional Rapid Amortization Events.............................................83
Section 7.3 Additional Remedies of Certificateholders........................................84
ARTICLE VIII THE TRUSTEE............................................................................84
Section 8.1 Duties of Trustee................................................................84
Section 8.2 Certain Matters Affecting the Trustee............................................88
Section 8.3 Trustee Fees and Expenses........................................................90
Section 8.4 Eligibility Requirements for Trustee; Termination of Qualified Institution.......90
Section 8.5 Resignation or Removal of Trustee................................................91
Section 8.6 Successor Trustee................................................................91
Section 8.7 Merger or Consolidation of Trustee...............................................92
Section 8.8 Appointment of Co-Trustee or Separate Trustee....................................92
Section 8.9 Tax Returns......................................................................93
Section 8.10 Trustee May Enforce Claims Without Possession of Certificates....................94
Section 8.11 Suits for Enforcement............................................................94
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TABLE OF CONTENTS
(continued)
Page
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Section 8.12 Rights of Certificateholders to Direct Trustee...................................94
Section 8.13 Representations and Warranties of Trustee........................................94
Section 8.14 Maintenance of Office or Agency..................................................95
Section 8.15 Trustee May Own Certificates.....................................................95
Section 8.16 Indemnification of Trustee.......................................................95
ARTICLE IX TERMINATION............................................................................96
Section 9.1 Termination of Trust.............................................................96
Section 9.2 Mandatory Repurchase and Final Termination of Investor Certificates of
any Series.......................................................................96
Section 9.3 Final Payment with Respect to any Series.........................................96
Section 9.4 Sellers' Termination Rights......................................................97
ARTICLE X MISCELLANEOUS PROVISIONS...............................................................97
Section 10.1 Amendment........................................................................97
Section 10.2 Protection of Right, Title and Interest to Trust.................................99
Section 10.3 Limitation on Rights of Certificateholders.......................................99
Section 10.4 GOVERNING LAW...................................................................100
Section 10.5 Notices.........................................................................101
Section 10.6 Severability of Provisions......................................................101
Section 10.7 Certificates Non-Assessable and Fully Paid......................................101
Section 10.8 Further Assurances..............................................................101
Section 10.9 No Waiver; Cumulative Remedies..................................................102
Section 10.10 Counterparts....................................................................102
Section 10.11 Third-Party Beneficiaries.......................................................102
Section 10.12 Actions by Certificateholders...................................................102
Section 10.13 Rule 144A Information...........................................................102
Section 10.14 Merger and Integration..........................................................102
Section 10.15 Headings........................................................................103
Section 10.16 Binding Effect..................................................................103
Section 10.17 FORUM SELECTION AND SUBMISSION TO JURISDICTION..................................103
Section 10.18 WAIVER OF JURY TRIAL............................................................104
Section 10.19 Confidentiality.................................................................104
Section 10.20 Set-off.........................................................................104
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TABLE OF CONTENTS
(continued)
EXHIBIT A. - Form of Sellers' Certificate
EXHIBIT B. - Form of Weekly Trustee Report
EXHIBIT C. - Form of Servicer Report
EXHIBIT D. - Form of Monthly Trustee Report
EXHIBIT E. - Form of Annual Servicer's Certificate
EXHIBIT F-1 - Form of Transfer Certificate
EXHIBIT F-2 - Form of Transfer Certificate for Transfer From U.S.
Registered Certificate to Regulation S Certificate
EXHIBIT F-3 - Form of Transfer Certificate for Transfer From
Regulation S Certificate to U.S. Registered Certificate
EXHIBIT G - Form of Opinion of Counsel
EXHIBIT H - Form of Notification and Acknowledgment
EXHIBIT I - Form of Guaranty
EXHIBIT J Form of Option Agreement
EXHIBIT K Form of Put Option Agreement
EXHIBIT L - Form of Subordinated Certificate
EXHIBIT M - Form of Servicer Report (Receivable Shortfall Payments)
EXHIBIT N - Form of Paying and Conversion Agency Agreement
EXHIBIT O - Form of Control Agreement
EXHIBIT P Form of Series 2002-A Supplement
EXHIBIT Q - Form of Port Option Agreement
EXHIBIT R Form of Port Put Option Agreement
SCHEDULE 1-A - Sweep Account
SCHEDULE 1-B - Collection Account
SCHEDULE 1-C - Wire Instructions
SCHEDULE 1-D - Peso Denominated Account
SCHEDULE 2 - TMM Credit and Collection Policies
SCHEDULE 3 - Ineligible Receivable Criteria
SCHEDULE 4 - Obligor Agreements
SCHEDULE 5 - Initial Eligible Open Account Obligors
SCHEDULE 6 - Excess Receivables Thresholds
SCHEDULE 7 - Liens
SCHEDULE 8 - Past due Receivables
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This Second Amended and Restated
Master Trust Agreement, dated as of
December 10, 2002, by and among Grupo TMM, S.A, a corporation organized under
the laws of Mexico ("TMM"), as a Seller, Sellers' Representative, Guarantor and
Servicer, and those certain wholly-owned subsidiaries of TMM which are
signatories hereto (each a "SELLER" and together with TMM, collectively, the
"SELLERS") and The Bank of
New York, a
New York banking corporation, as Trustee.
RECITALS:
1. The parties previously entered into that certain
Master Trust
Agreement, dated as of November 30, 2001, as amended by the Amendment and Waiver
Agreement, dated as of August 23, 2002 among the Sellers, the Trustee and
Citibank, N.A. (as so amended, "ORIGINAL
MASTER TRUST AGREEMENT") whereby
pursuant to the terms thereof the parties thereto provided for the creation of a
trust for the purpose of acquiring from the Sellers and owning certain present
and future receivables and rights related thereto, which Original
Master Trust
Agreement was amended and restated by that certain Amended and Restated
Master
Trust Agreement, dated as of October 25, 2002 (the "OCTOBER 2002
MASTER TRUST
AGREEMENT").
2. The Certificates issued pursuant to the terms of the October 2002
Master Trust Agreement are certain Investor Certificates dated as of October 25,
2002, the terms of which are specified in that certain Amended and Restated
Series 2001-A Supplement, dated as of October 25, 2002, among TMM, each other
Seller, the Trustee and Citibank, N.A., as purchaser (the "OCTOBER 2002 SERIES
2001-A SUPPLEMENT"), that certain Series 2002-A Supplement, dated as of October
25, 2002, among TMM, each other Seller, the Trustee and Maple, as purchaser (the
"OCTOBER 2002 SERIES 2002-A SUPPLEMENT") and a Sellers' Certificate, dated as of
October 25, 2002.
3. The parties hereto, Citibank, N.A. ("CITIBANK") and Maple desire to
amend the October 2002 Transaction Documents by entering into the Amendment
Documents, to permit among other things, the amendment and modification of
certain covenants and conditions in the October 2002 Transaction Documents and
the issuance to Citibank of additional Series 2001--A Certificates which will be
issued pursuant to the Second Amended and Restated Series 2001-A Supplement,
dated as of December 10, 2002, among TMM, each other Seller, the Trustee and
Citibank (as so amended and restated, the "SERIES 2001-A SUPPLEMENT").
In consideration of the mutual agreements herein contained, each party
agrees as follows for the benefit of the other parties and the
Certificateholders:
ARTICLE I
DEFINITIONS
Section 1.1 DEFINITIONS. Whenever used in this
Master Trust Agreement, the
following words and phrases shall have the following meanings:
"ACCREDITED INVESTOR" shall mean a Person that is an institutional
"accredited investor" within the meaning of Rule 501(a)(1), (2), (3) or (7) of
Regulation D under the Securities Act.
"ACCRUAL PERIOD" shall mean, with respect to any Distribution Date, the
period beginning on and including the previous Distribution Date to and
including the day preceding the current Distribution Date; PROVIDED, HOWEVER,
with respect to the first Distribution Date for any Series, the Accrual Period
shall begin on (and include) the Closing Date of such Series and end on (and
include) the day preceding the first Distribution Date after such Closing Date.
"ACKNOWLEDGMENT" shall mean each Notification and Acknowledgment
substantially in the form of EXHIBIT H hereto between the Seller of any
Purchased Receivables and a Customer Obligor under an Open Account Receivable or
a Customer Obligor under a Committed Receivable pursuant to which such Persons
have agreed, for the benefit of the Trustee under the Trust, among other things,
to cause all payments due from such Obligors, to or for the account of such
Seller with respect to the applicable Purchased Receivables, to be made directly
to the Peso Denominated Account if payable in Pesos and to be made directly to
the Sweep Account if payable in Dollars.
"ADDITIONAL AMOUNTS" shall mean additional amounts as may be necessary in
order to ensure that the net amounts receivable by each Certificateholder after
any withholding or deduction on account of Covered Taxes are the same as if such
Covered Taxes were not imposed.
"ADDITIONAL LIENS" shall have the meaning specified in SECTION
3.2(aa)(xiii).
"ADDITIONAL SERIES 2001-A CERTIFICATES" shall have the meaning specified in
the Series 2001-A Supplement.
"ADDITIONAL SERIES 2001-A FULL REPURCHASE PAYMENT" shall have the meaning
specified in the Series 2001-A Supplement.
"AFFECTED CERTIFICATEHOLDER OR SERIES" shall have the meaning specified in
SECTION 10.3(c).
"AFFILIATE" of any Person shall mean any other Person controlling,
controlled by or under common control with such Person.
"AGGREGATE CERTIFICATE BALANCE" shall mean, as of any date of
determination, the sum of the Certificate Balances of all outstanding Series as
of such date of determination.
"AGGREGATE FULL REPURCHASE PAYMENTS" shall mean, as of any date of
determination, the sum of the Series 2001-A Full Repurchase Payment and the
Series 2002-A Full Repurchase Payment.
"AGGREGATE REQUIRED COVERAGE AMOUNTS" shall mean, as of any date of
determination, the sum of all of the Required Coverage Amounts for all Series
outstanding as of such date.
"AMENDMENT DOCUMENTS" shall mean this Agreement, the Series 2001-A
Supplement, the Amendment to Series 2002-A Supplement and Consent, the TMM Port
Option and Put Agreements, the Additional Series 2001-A Certificates, the
Amendment to Control Agreement,
2
the Amendment to Conversion Agreement, the Amendment to Guaranty, the Amendment
to Option Agreement, the Amendment to Put Agreement and the Amendment Fee
Letter.
"AMENDMENT FEE LETTER" shall mean that certain Fee Letter, dated as of
December 10, 2002, between TMM and Citibank.
"AMENDMENT TO CONTROL AGREEMENT" shall mean that certain Amendment Number
One to Amended and Restated Account Control Agreement, dated as of December 10,
2002, among TMM, each other Seller, the Trustee and Citibank.
"AMENDMENT TO CONVERSION AGREEMENT" shall mean that certain Amendment
Number One to Amended and Restated Paying Agency and Conversion Agreement, dated
as of December 10, 2002, among TMM, each other Seller, the Trustee and
Scotiabank Inverlat, S.A.
"AMENDMENT TO GUARANTY" shall mean that certain Amendment Number One to
Amended and Restated Guaranty, dated as of December 10, 2002, between TMM and
the Trustee.
"AMENDMENT TO OPTION AGREEMENT" shall mean that certain Amendment Number
One to Amended and Restated Option Agreement, dated as of December 10, 2002,
between TMM Multimodal and the Trustee.
"AMENDMENT TO PUT OPTION AGREEMENT" shall mean that certain Amendment
Number One to Amended and Restated Put Option Agreement, dated as of December
10, 2002, between TMM Multimodal and the Trustee.
"AMENDMENT TO SERIES 2002-A SUPPLEMENT AND CONSENT" shall mean that certain
Amendment Number One to Series 2002-A Supplement and Consent, dated as of
December 10, 2002, among TMM, each other Seller, the Trustee and Maple.
"APPLICABLE LAW" shall mean, as to any Person, any law (including common
law), treaty, rule or regulation, or any determination of any Governmental
Authority, in each case applicable to or binding upon such Person or any of its
Property, or to which such Person or any of its Property is subject.
"APPLICANTS" shall have the meaning specified in SECTION 5.7.
"ASSET DISPOSITION" shall mean any sale, lease, conveyance, transfer or
other disposition (or series of related sales, leases, conveyances, transfers or
dispositions) of any Capital Stock of a Restricted Subsidiary of TMM (whether or
not upon issuance), property or other assets (each referred to for the purposes
of this definition as a "disposition") by TMM or any of its Restricted
Subsidiaries, whether for cash or other consideration, other than (i) a
disposition by a Wholly-Owned Subsidiary of TMM to TMM or another Wholly-Owned
Subsidiary of TMM, (ii) a disposition by TMM to a Wholly-Owned Subsidiary of
TMM, (iii) the disposition in any single transaction or series of transactions
of any assets or Capital Stock or other ownership interest by TMM or its
Restricted Subsidiaries if the gross proceeds thereof (exclusive of indemnities)
do not exceed U.S.$10,000,000 (such proceeds, to the extent not in cash, to be
determined in good faith by the Board of Directors) in any 12-month period, (iv)
an exchange of assets for like kind assets, provided the assets received are to
be used in the lines of business engaged in by TMM or
3
any of its Restricted Subsidiaries on the Initial Closing Date or reasonably
related extensions of such lines of business, (v) a disposition that is governed
by Section 3.3 of the
Master Trust Agreement and (vi) a disposition of assets in
one or a series of related transactions which are no longer used or, in the
reasonable opinion of TMM (which, in the case of each disposition for gross
proceeds in excess of U.S.$2,000,000, will be evidenced by a Board Resolution as
set forth in an Officers' Certificate from TMM delivered to the Trustee), useful
in the business of TMM or any Restricted Subsidiary.
"ASSOCIATE" shall have the meaning assigned to such term in Rule 12b-2 of
the rules and regulations of the Securities and Exchange Commission promulgated
under the Exchange Act.
"BANKRUPTCY CODE" means The Bankruptcy Reform Act of 1978, as amended.
"BEARER CERTIFICATE" shall have the meaning specified in SECTION 5.1(b).
"BEARER CERTIFICATEHOLDER" shall mean the Holder of a Bearer Certificate.
"BOARD OF DIRECTORS" shall mean the Board of Directors of any Person, or
any duly authorized committee of such Board or any officers of such Person duly
authorized so to act by such Board, PROVIDED that if the transaction giving rise
to the need for action by the Board of Directors of such Person, together with
any related transactions, involve aggregate value or consideration in excess of
U.S.$10,000,000, "Board of Directors" means the entire Board of Directors of
such Person and not a committee of such Person or an officer of such Board;
PROVIDED, FURTHER, that any action required to be taken by the Board of
Directors of TMM or any of its Restricted Subsidiaries with respect to the sale
or sale and leaseback of any individual vessel may be taken by the Executive
Committee of such Board of Directors.
"BOARD RESOLUTION" shall mean a copy of a resolution or resolutions
certified by the Secretary or an Assistant Secretary of any Person to have been
duly adopted by the Board of Directors, or by the Executive Committee of the
Board of Directors or any other committee to the extent that such other
committee has been authorized by the Board of Directors to adopt a "Board
Resolution" for purposes hereof, and to be in full force and effect on the date
of such certification, or a certificate executed by officers of such Person to
the extent that such officers have been authorized to act for purposes hereof
setting forth the action taken by such officers and stating that the officers
are duly authorized to take such action, in each case as filed with the
corporate records of such Person.
"BOOK-ENTRY CERTIFICATES" shall mean beneficial interests in Registered
Certificates, ownership and transfers of which shall be made through book
entries by a Clearing Agency as described in SECTION 5.11; PROVIDED, that after
the occurrence of a condition whereupon book-entry registration and transfer are
no longer authorized and Definitive Certificates are to be issued to the
Certificate Owners, such Definitive Certificates shall replace Book-Entry
Certificates.
"BUSINESS DAY" shall mean any day other than a day on which banking
institutions in Mexico City, Mexico or The City of
New York,
New York are
permitted or required by law, executive order or governmental decree to remain
closed.
4
"CAPITAL STOCK" shall have the meaning specified in the Series 2001-A
Supplement.
"CAPITALIZED LEASE LIABILITY" of any Person shall mean any obligation of
such Person to pay rent or other amounts under a lease of (or other agreement
conveying the right to use) real or personal property that is required to be
classified and accounted for as a capital lease obligation on a balance sheet of
such Person under IAS and, for purposes of the Transaction Documents, the amount
of such obligation at any date shall be the capitalized amount thereof at such
date, determined in accordance with IAS. For purposes of this definition, with
respect to TMM, "Person" means TMM and/or any Restricted Subsidiary of TMM.
"CERTIFICATES" shall mean (i) the Investor Certificates of any Series, (ii)
the Subordinated Certificates and (iii) the Sellers' Certificate.
"CERTIFICATE ACCOUNT" with respect to any Series, shall have the meaning
specified in the Supplement for such Series.
"CERTIFICATE BALANCE" shall mean, with respect to any Series as of any date
of determination, the Initial Certificate Balance of the Investor Certificates
of such Series reduced by all payments of principal made prior to such date with
respect to such Series.
"CERTIFICATE OWNER" shall mean, with respect to a Book-Entry Certificate,
the Person who is the beneficial owner of the interest in such Book-Entry
Certificate, as may be reflected on the books of the Clearing Agency, or on the
books of such Person maintaining an account with such Clearing Agency (directly
or as an indirect Clearing Agency Participant, in accordance with the rules of
such Clearing Agency).
"CERTIFICATE RATE" shall mean, with respect to any Series of Certificates,
the percentage (or formula on the basis of which such rate shall be determined)
as set forth in the related Supplement.
"CERTIFICATE REGISTER" shall mean the register maintained pursuant to
SECTION 5.3, providing for the registration of the Certificates and transfers
and exchanges thereof.
"CERTIFICATEHOLDER" shall mean the Person in whose name a Certificate is
registered in the Certificate Register or the bearer of a Bearer Certificate.
"CHANGE IN CONTROL" shall mean, with respect to any Seller, a situation
where either (i) any person or group within the meaning of Section 13(d)(3) of
the Exchange Act (a "GROUP") together with any Affiliates and Associates of any
thereof, other than (A) the ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ family, its Affiliates and
Associates and (B) the CPO Trustee and any successor to the CPO Trustee, shall
beneficially own (within the meaning of Rule 13d-3 under the Exchange Act) at
least 35% of the total voting power of all classes of capital stock of such
Seller entitled to vote generally in the election of directors of such Seller;
PROVIDED, that, in the event that 100% of the total voting power of all classes
of a Seller's Capital Stock entitled to vote generally in the election of
directors of such Seller is held by any other Person, a Change in Control shall
be determined with respect to such Seller as if such Seller was such other
Person; or (ii) such Seller is liquidated or dissolved or the stockholders of
such Seller adopt a plan for the liquidation or dissolution of such Seller.
5
"CHANGE IN LAW" shall mean a change in any treaty, law or regulation or in
the interpretation thereof by any governmental or regulatory agency or body
charged with the administration or interpretation thereof, or the introduction
of any law or regulation, including, without limitation, with respect to
withholding on payments made to Hacienda Banks.
"CITIBANK" shall have the meaning set forth in the third recital.
"CLASS" shall mean, with respect to any Series, any one of the classes of
Certificates of that Series as specified in the related Supplement.
"CLEARING AGENCY" shall mean an organization registered as a "clearing
agency" pursuant to Section 17A of the Securities Exchange Act of 1934, as
amended, or a Foreign Clearing Agency.
"CLEARING AGENCY PARTICIPANT" shall mean a securities broker or dealer,
bank, trust company, clearing corporation, other financial institution or other
Person for whom from time to time a Clearing Agency effects book-entry transfers
and pledges of securities deposited with the Clearing Agency.
"CLEARSTREAM" shall mean Clearstream, SOCIETE ANONYME.
"CLOSING DATE" shall mean, with respect to any Series, the date of issuance
of such Series, as specified in the related Supplement, and shall include the
Initial Closing Date, the Second Closing Date and, as to the Additional Series
2001-A Certificates, the Third Closing Date.
"CNBV" shall mean the Comision Nacional Bancaria y de Valores of Mexico.
"COLLECTION ACCOUNT" shall have the meaning specified in SECTION 4.1(a).
"COLLECTION PERIOD" shall mean with respect to any Distribution Date, the
period beginning on and including the first day of the first preceding full
calendar quarter to and including the last day in the first preceding calendar
month; PROVIDED, HOWEVER, with respect to the first Distribution Date for any
Series, the Collection Period shall begin on (and include) the Closing Date of
such Series and end on (and include) the last day of the calendar month first
preceding the first Distribution Date to occur after the Closing Date.
"COLLECTION SUBACCOUNT" shall have the meaning specified in SECTION 4.1(a).
"COLLECTIONS" shall mean, with respect to any Purchased Receivable, all
Dollar funds which either (a) are received by the Trust as a Dollar deposit
(including any Dollar deposits made from the Peso Denominated Account) into the
Collection Account from or on behalf of the related Customer Obligor in respect
of Open Account Receivables or Committed Receivables or applied to such amounts
(including, without limitation, insurance payments that the Trust applies in the
ordinary course of business to amounts owed in respect of such Purchased
Receivables and net proceeds of sale or other disposition of repossessed goods
or other collateral or property of such Obligors or any other party directly or
indirectly liable for payment of such Purchased Receivable and available to be
applied thereon), or (b) all other payments identified as Collections in the
Supplement for a Series.
6
"COMMITTED OBLIGOR AGREEMENT" shall mean, at any date of determination, an
Obligor Agreement with respect to which the Eligible Obligor has agreed to
purchase Services from a Seller for a period of at least one (1) year after the
Series Termination Date of any Series of Certificates outstanding at such date.
"COMMITTED RECEIVABLE" shall mean a Receivable from an Obligor obligated
thereon pursuant to a Committed Obligor Agreement, or otherwise other than on an
open account basis.
"CONSULTATION PERIOD" shall have the meaning specified in SECTION 8.1(d).
"CONTROL AGREEMENT" shall mean that certain Amended and Restated Account
Control Agreement among the Trustee, the Sellers and Citibank, dated as of
October 25, 2002, in the form attached hereto as EXHIBIT O, as the same may be
amended from time to time, including without limitation, as amended by the
Amendment to Control Agreement.
"CONVERSION AGREEMENT" shall mean that certain Amended and Restated Paying
and Conversion Agency Agreement among the Trustee, the Sellers and Scotiabank
Inverlat, S.A., dated as of October 25, 2002, in the form attached hereto as
EXHIBIT N, as the same may be amended from time to time, including without
limitation, as amended by the Amendment to Conversion Agreement.
"CORPORATE TRUST OFFICE" shall mean the principal office of the Trustee at
which at any particular time its corporate trust business shall be administered,
which office at the date of the execution of this Master Trust Agreement is
located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attn: Global
Structured Products Unit.
"COUPONS" shall have the meaning specified in SECTION 5.1(b).
"COVERED TAXES" shall have the meaning specified in SECTION 3.4(c).
"CPO TRUSTEE" shall mean the trustee with respect to TMM's outstanding
CERTIFICADOS DE PARTICIPACION ORDINARIOS.
"CUMULATIVE REQUIRED INVESTOR CERTIFICATEHOLDERS" shall mean with respect
to actions or decisions of the Investor Certificateholders, Investor
Certificateholders holding Investor Certificates at least equal to 51% of the
aggregate outstanding principal amount of all Investor Certificates of all
Series.
"CUMULATIVE REQUIRED INVESTOR CERTIFICATEHOLDERS (SUPER MAJORITY)" shall
mean with respect to actions or decisions of the Investor Certificateholders,
Investor Certificateholders holding Investor Certificates at least equal to
66-2/3% of the aggregate principal amount of all Investor Certificates of all
Series.
"CUSTOMER OBLIGOR" shall mean each customer obligor under any Receivable.
"DEFINITIVE CERTIFICATE" shall have the meaning specified in SECTION 5.11.
"DEFINITIVE EURO-CERTIFICATE" shall have the meaning specified in SECTION
5.10.
7
"DEPOSITORY" shall have the meaning specified in SECTION 5.11.
"DEPOSITORY AGREEMENT" shall mean, with respect to each Series, the
agreement among the Sellers, the Trustee and the Clearing Agency, in the form
provided in the related Supplement.
"DETERMINATION DATE" shall mean the Second Business Day prior to each
Distribution Date.
"DISTRIBUTION AMOUNT" shall mean, with respect to each Series of
outstanding Certificates on any date of determination, without duplication, an
amount equal to the sum of (a) the Quarterly Interest (including any accrued
Quarterly Interest that became due on any prior Distribution Date that has not
been distributed) due on the Investor Certificates for such Series on such date
(if such date is a Distribution Date) or on the next succeeding Distribution
Date (if such date is not a Distribution Date), (b) the Principal Amortization
Amount, (c) the aggregate Additional Amounts scheduled to be due in respect of
such Quarterly Interest for such Series (to the extent the Sellers have not made
payments then due directly to the relevant taxing authorities), (d) the
Servicer's fees due with respect to such Series on such date (if such date is a
Distribution Date) or on the next succeeding Distribution Date (if such date is
not a Distribution Date), and (e) the aggregate fees and other aggregate
required transaction costs due on such date (if such date is a Distribution
Date) or on the next succeeding Distribution Date (if such date is not a
Distribution Date) for such Series (such as servicing, administration,
Enhancement and other fees due to third parties regularly as part of such
Series).
"DISTRIBUTION DATE" shall mean the fifth calendar day, or if such day is
not a Business Day, the immediately succeeding Business Day, of each calendar
quarter thereafter.
"DOCUMENT CLOSING DATE" shall mean November 30, 2001, the date each party
thereto executed and delivered the Original Master Trust Agreement, the Original
Series 2001-A Supplement, the Original Guaranty and the Original Fee Letter.
"DOLLARS", "$" or "U.S. $" shall mean United States dollars.
"ELIGIBLE COMMITTED RECEIVABLE" shall mean a Committed Receivable that
satisfies each of the following criteria:
(i) Such Committed Receivable shall satisfy the criteria in
CLAUSES (i)-(viii) in the definition of "Eligible Open Account Receivable",
and
(ii) Such Committed Receivable shall have arisen under a Committed
Obligor Agreement.
"ELIGIBLE OBLIGOR" shall mean a related Customer Obligor that satisfies
each of the following criteria:
(i) Such Customer Obligor shall be a company listed on SCHEDULE 5
hereto or such other Customer Obligor as shall be approved by amending
SCHEDULE 5 in accordance with SECTION 10.1(b);
8
(ii) Other than PEMEX, such Customer Obligor shall not be a
government or governmental subdivision or agency; and
(iii) Such Customer Obligor shall have executed and delivered to the
Trustee an Acknowledgment in favor of the Trust that is the legal, valid
and binding obligation of, and enforceable in accordance with its terms
against, such Obligor.
"ELIGIBLE OPEN ACCOUNT RECEIVABLE" shall mean an Open Account Receivable
payable by an Eligible Obligor that satisfies each of the following criteria:
(i) Such Open Account Receivable shall have been conveyed to the
Trust under Mexican law, subject to the written consent of the related
Customer Obligor, which consent shall have been obtained prior to such Open
Account Receivable becoming an Eligible Open Account Receivable; the
related Customer Obligor shall have been notified in writing of the
conveyance to the Trust and executed an acknowledgement; and the applicable
Seller shall have taken all other steps necessary to convey any such
Receivable to the Trust as requested by the Trustee so as to make such
conveyance enforceable against all creditors of the applicable Seller and
any bankruptcy trustee, receiver or official in any bankruptcy, CONCURSO
MERCANTIL or insolvency proceeding in which the applicable Seller is the
debtor;
(ii) Such Open Account Receivable shall be invoiced and denominated
in Dollars and/or Pesos and except as otherwise provided for in SECTION
4.1(c), payable in Dollars outside of Mexico;
(iii) Such Open Account Receivable shall be in full force and effect
and constitute a legal, valid and binding obligation of an Eligible
Obligor, arising from Services performed in the ordinary course of the
applicable Seller's business that have been performed and, to the best of
such Seller's knowledge, been accepted by such Obligor;
(iv) Such Open Account Receivable shall not be subject to any
dispute, offset or right of rescission, or counterclaim or defense, and
such Open Account Receivable shall be free from any Liens;
(v) The contract terms of such Open Account Receivable shall
require payment within sixty (60) days of the date of performance of the
related Services or as set forth in any applicable Supplement;
(vi) Such Open Account Receivable shall satisfy all applicable
requirements of the TMM Credit and Collection Policies;
(vii) Such Open Account Receivable shall not contravene any
applicable law, rule or regulation, and the applicable Seller shall not be
in violation of any applicable law, rule or regulation in connection
therewith in any material respect; and
(viii) Such Open Account Receivable shall not be an Ineligible
Receivable at the time of transfer to the Trust.
9
"ELIGIBLE OWNER" shall mean a Person which is an Accredited Investor and
either (A) a Hacienda Bank or (B) both (i) duly organized under the laws of the
United States of America or any state or territory thereof and (ii) a resident
of the United States of America for federal income tax purposes and for purposes
of the U.S./Mexico Tax Treaty or (C) is a resident of a country having an income
tax treaty with Mexico (is treated as a resident of such country for purposes of
such income tax treaty) and complies with all of the requirements provided for
by such tax treaty to be entitled to apply such tax treaty.
"ELIGIBLE PURCHASED RECEIVABLES" shall mean, as of any date of
determination, all Eligible Open Account Receivables and Eligible Committed
Receivables, and Eligible Purchased Receivables shall exclude all Excess
Receivables.
"ENHANCEMENT" shall mean, with respect to any Series, the cash collateral
account, surety bond, letter of credit, guaranteed rate agreement, maturity
guaranty facility, tax protection agreement, interest rate swap or any other
contract or agreement for the benefit of the Certificateholders of such Series,
as designated in the related Supplement.
"ENHANCEMENT PROVIDER" shall mean, with respect to any Series, the Person,
if any, designated as such in the related Supplement.
"ENVIRONMENTAL LAW" shall mean any supranational, federal, national, state,
provincial, tribal, local or municipal law, rule, regulation, order, writ,
judgment, injunction, decree, determination or award of any Governmental
Authority relating to or imposing standards of conduct concerning the
environment, health, safety or Hazardous Materials.
"ENVIRONMENTAL PERMIT" shall mean any permit, approval, identification
number, license or other authorization required under any Environmental Law.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"EUROCLEAR" shall mean the Euroclear system operated by ▇▇▇▇▇▇ Guaranty
Trust Company of
New York, Brussels office.
"EURO CP FACILITY PAYMENT" shall mean the payments required to be made by
TMM with respect to TMM's Euro-Commercial Paper Program established in April
1999 for issuances of up to U.S.$150,000,000.
"EXCESS RECEIVABLES" shall mean with respect to any Eligible Obligor or the
Nissan Group identified on SCHEDULE 6 hereto, any Eligible Purchased Receivables
generated during any Quarterly Period in excess of the amounts set forth
opposite the name of such Eligible Obligor on SCHEDULE 6 hereto.
"EXCHANGE" shall have the meaning specified in SECTION 5.9(a).
"EXCHANGE ACT" shall mean the Exchange Act of 1934, and the rules and
regulations promulgated thereunder, in each case as amended from time to time.
10
"EXCHANGE DATE" shall have the meaning, with respect to any Series issued
pursuant to an Exchange, specified in SECTION 5.9(a).
"EXCHANGE NOTICE" shall have the meaning, with respect to any Series issued
pursuant to an Exchange, specified in SECTION 5.9(a).
"EXISTING LIENS" shall have the meaning specified in SECTION 3.2(AA)(xiii).
"EXPECTED FINAL DISTRIBUTION DATE" shall mean, with respect to any Series,
the Expected Final Distribution Date as it is defined in the related Supplement
for such Series.
"FDIC" shall mean the Federal Deposit Insurance Corporation.
"FINANCIAL OFFICER" shall have the meaning specified in SECTION 3.2(k).
"FIRST AMENDMENT TO PEMEX RECEIVABLES SALE AGREEMENT" shall mean that
certain First Amendment to PEMEX Receivables Sale Agreement, dated October 24,
2002, by and among the Trustee and Naviera del ▇▇▇▇▇▇▇▇, ▇.▇. de C.V., as
Seller.
"FOREIGN CLEARING AGENCY" with respect to any Series, shall have the
meaning specified in the related Supplement, if applicable.
"FORM F-4" shall mean Registration Statement No. 333-99075 on Form F-4
filed by TMM and TMM Holdings, S.A. de C.V. with the Securities and Exchange
Commission on August 28, 2002, as amended by Amendment No. 1 to Registration
Statement No. 333-99075 on Form F-4 filed by the same parties with the
Securities and Exchange Commission on September 27, 2002, which describes the
offer by TMM to exchange new senior unsecured notes due 2009 for portions of the
outstanding principal amount of its 9-1/2% notes due 2003 and 10-1/4% notes due
2006 issued pursuant to the Indentures.
"GENERATION COVERAGE RATIO" shall mean, as of any Determination Date
immediately following a Quarterly Period, the amount obtained by dividing (a)
the Owed Amounts at the time of origination of Eligible Purchased Receivables
generated during the Quarterly Period immediately preceding such Determination
Date by (b) the Aggregate Required Coverage Amounts applicable to the
Distribution Date immediately following such Quarterly Period; PROVIDED,
HOWEVER, for purposes of calculating the Generation Coverage Ratio as of any
such Determination Date, Owed Amounts shall exclude any amounts remaining unpaid
at any time during such Quarterly Period described in clause (a) which were
generated prior to such period.
"GLOBAL CERTIFICATE" shall have the meaning specified in SECTION 5.10.
"GOVERNMENTAL AUTHORITY" shall mean the United States of America, Mexico,
any state or other political subdivision of either of the foregoing and any
entity exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"GRUPO TFM" shall mean Grupo Transportacion Ferroviaria Mexicana, S.A. de
C.V., a corporation organized under the laws of ▇▇▇▇▇▇.
▇▇
"▇▇▇▇▇▇▇▇▇" shall mean TMM, with respect to the Guaranty.
"GUARANTY" shall mean the Amended and Restated Guaranty, dated as of
October 25, 2002, executed by TMM, in the form of EXHIBIT I hereto, as the same
may be amended from time to time, including without limitation, as amended by
the Amendment to Guaranty.
"HACIENDA" shall mean the SECRETARIA DE HACIENDA Y CREDITO PUBLICO
(Ministry of Finance and Public Credit) of Mexico.
"HACIENDA BANK" shall mean a financial institution registered with Hacienda
for purposes of Article 195-I of the LEY DEL IMPUESTO SOBRE LA RENTA of Mexico,
which complies with the requirements provided for therein to be entitled to the
lowest withholding tax on interest payments provided in such Article and is a
resident of a country having an income tax treaty with Mexico (is treated as a
resident of such country for purposes of such income tax treaty, and complies
with all the requirements provided for by such tax treaty to be entitled to
apply such tax treaty).
"HAZARDOUS MATERIALS" shall mean (a) petroleum or petroleum products,
natural or synthetic gas, asbestos in any form that is or could become friable,
urea formaldehyde foam insulation and radon gas, (b) any substances defined as
or included in the definition of "hazardous substances," "hazardous wastes,"
"hazardous materials," "extremely hazardous wastes," "restricted hazardous
wastes," "toxic substances," "toxic pollutants," "contaminants" or "pollutants,"
or words of similar import, under any Environmental Law and (c) any other
substance exposure to which is regulated under any Environmental Law.
"HOLDER" shall mean the Person in whose name a Certificate is registered in
the Certificate Register or the bearer of a Bearer Certificate, as applicable.
"IAS" shall mean accounting principles issued by the International
Accounting Standards Committee as in effect from time to time, as consistently
applied by the Sellers.
"INDEBTEDNESS" with respect to any Person shall mean (without duplication)
any liability, whether or not contingent, (i) in respect of borrowed money
(whether or not the recourse of the lender is to the whole of the assets of such
Person or only to a portion thereof) or evidenced by bonds, notes, debentures,
or similar instruments, or (ii) representing the balance deferred and unpaid of
the purchase price of any property, conditional sales obligations and
obligations under any title retention agreement (but excluding trade account
payables and other accrued current liabilities arising in the ordinary course of
business), and shall also include (without duplication) (a) any Capitalized
Lease Liability, (b) the maximum fixed repurchase price of any Disqualified
Stock of such Person, (c) obligations of others secured by a Lien to which any
property or asset, including leasehold interests under Capitalized Lease
Liabilities and any other tangible or intangible property rights, owned or held
by such Person is subject, whether or not the obligation secured thereby shall
have been assumed (provided that, if the obligations have not been assumed, such
obligations shall be deemed to be in an amount equal to the fair market value of
the property or properties to which the Lien relates, as determined in good
faith by the Board of Directors of such Person as evidenced by a Board
Resolution), (d) reimbursement obligations in respect of letters of credit
(other than letters of credit issued for the benefit of trade creditors in
12
the ordinary course of business of such Person in connection with obtaining
goods, materials or services), (e) guarantees with respect to the foregoing
items (regardless of whether the foregoing items would appear as a liability on
a balance sheet of such person prepared on a consolidated basis in accordance
with IAS) and (f) Swap Contracts; PROVIDED THAT, for the purpose of computing
the amount of Indebtedness of such Person outstanding at any time, such items
shall be excluded to the extent that they would be eliminated as intercompany
items for purposes of such Person's consolidated financial statements. For
purposes of the preceding sentence, the "maximum fixed repurchase price" of any
Disqualified Stock which does not have a fixed repurchase price shall be
calculated in accordance with the terms of such Disqualified Stock as if such
Disqualified Stock were repurchased on any date on which Indebtedness shall be
required to be determined pursuant to this Supplement, and if such price is
based upon, or measured by, the fair market value of such Disqualified Stock (or
any equity security for which it may be exchanged or converted), such fair
market value shall be determined in good faith by the Board of Directors of such
Person and evidenced by a Board Resolution. Notwithstanding anything in this
definition to the contrary, "Indebtedness" shall not include (i) customer
advance payments and customer deposits received by any Seller or any of TMM's
Restricted Subsidiaries in the ordinary course of business or (ii) revenue and
costs of voyages in process.
For all purposes, the Indebtedness of any Person shall include the
Indebtedness of any partnership or joint venture in which such Person is a
general partner or a joint venturer but only if the obligee under such
Indebtedness has recourse to such Person and its assets.
"INDEMNIFIED LOSSES" shall have the meaning specified in SECTION 3.4(b).
"INDEMNIFIED PARTY" shall have the meaning specified in SECTION 3.4(b).
"INDENTURES" shall mean (a) the Indenture dated as of May 12, 1993, between
TMM and Citibank, as Trustee, amended and restated as of January 25, 2001, with
respect to the 9 1/2% Notes Due 2003 and (b) the Indenture dated as of November
26, 1996, between TMM and The Bank of
New York, as Trustee, amended and restated
as of January 25, 2001, with respect to the 10 1/4% Senior Notes Due 2006, as
each may be amended from time to time.
"INELIGIBLE RECEIVABLE" shall mean any Receivable which is not eligible to
be transferred to the Trust as determined pursuant to SCHEDULE 3 hereto.
"INITIAL CERTIFICATE BALANCE" shall mean, with respect to any Series of
Certificates, the original principal amount of such Series, as specified in the
related Supplement.
"INITIAL CLOSING DATE" shall mean December 13, 2001.
"INTERNAL REVENUE CODE" shall mean the Internal Revenue Code of 1986, as
amended from time to time.
"INVESTMENT COMPANY ACT" shall mean the Investment Company Act of 1940, as
amended together with the rules and regulations promulgated thereunder.
"INVESTMENT GRADE" shall mean a long-term debt rating of at least BBB- by
Standard & Poor's and Baa3 by Moody's.
13
"INVESTOR CERTIFICATE" shall mean any one of the Bearer Certificates, the
Registered Certificates or the Global Certificates executed and authenticated by
the Trustee substantially in the form of the Investor Certificate attached as an
exhibit to the related Supplement.
"INVESTOR CERTIFICATEHOLDER" shall mean the Holder of an Investor
Certificate.
"LIEN" shall mean any lien, mortgage, pledge, assignment (including any
assignment of rights to receive payments of money), security interest, charge or
encumbrance of any kind (including any conditional sale or other title retention
agreement or any lease in the nature thereof), and any agreement to give a lien,
mortgage, pledge, assignment (including any assignment of rights to receive
payments of money), security interest, charge or other encumbrance of any kind.
"MAPLE" shall have the meaning specified in the Series 2002-A Supplement.
"MARGIN STOCK" shall mean any "margin stock" or "margin security" as
defined in Regulations T, U or X of the Board of Governors of the Federal
Reserve System.
"MASTER TRUST AGREEMENT" shall mean this Second Amended and Restated Master
Trust Agreement, dated as of December 10, 2002, and all amendments hereof and
supplements hereto, including each Supplement.
"MASTER TRUST AGREEMENT OVERRIDE SECTIONS" shall mean Sections 4.3, 5.9(b),
5.9(c), 8.1(d), 10.1 and 10.3(c) of this Master Trust Agreement.
"MATERIAL ADVERSE EFFECT" shall mean a material adverse effect on (a) the
rights and remedies of the Trustee or the Investor Certificateholders of any
Series under this Master Trust Agreement, any Supplement or any other
Transaction Document, (b) the collectibility of the Purchased Receivables (c)
the Trustee's interest in the Trust Assets, (d) the ability of any Seller, the
Guarantor, the Servicer, or with respect to the Option Agreement or Put Option
Agreement, TMM Multimodal, to perform its obligations or to pay under any
Transaction Document (whether (i) as a result of a material adverse effect on
the business, condition (financial or otherwise), operations, performance or
properties of any Seller, the Guarantor, the Servicer, or TMM Multimodal or (ii)
for any other reason), or (e) the ability of the Sellers, Sellers'
Representative or the Servicer to perform their collective obligations with
respect to or to collect amounts owing with respect to the Purchased
Receivables.
"MEXICO" shall mean the United Mexican States.
"MEXICO BANKRUPTCY LAW" shall mean the LEY DEL CONCURSOS MERCANTILES of
Mexico.
"MONTHLY TRUSTEE REPORT" shall mean the certificate required to be
delivered by the Trustee as defined in SECTION 8.1(c), which shall be
substantially in the form of EXHIBIT D hereto, with such changes as the Trustee
may reasonably determine to be necessary or desirable; PROVIDED, HOWEVER, that
no such change shall serve to exclude information required by this Master Trust
Agreement or any Supplement to be included in the Monthly Trustee Report.
"MOODY'S" shall mean ▇▇▇▇▇'▇ Investors Service, Inc., and its successors
and assigns.
14
"MULTIMODAL PREPAYMENT EVENT" shall mean either:
(i) the occurrence of a TMM Multimodal Sale Event; or
(ii) the obligation of TMM Multimodal to make any payment to
the Trustee, including the payment of any Subordinated Certificate Purchase
Price (as such term is defined in the Put Option Agreement), pursuant to
the terms of the Put Option Agreement, but not including any payment
pursuant to Section 2.3(ii) of the Put Option Agreement.
"MULTIMODAL PREPAYMENT PROCEEDS" shall mean, with respect to any Multimodal
Prepayment Event, the gross proceeds resulting from such Multimodal Prepayment
Event without reduction or setoff for costs or expenses related to or resulting
from such Multimodal Prepayment Event.
"NEWCO" shall have the meaning specified in the Series 2001-A Supplement.
"NEWCO OPTION AGREEMENT" shall have the meaning specified in the Series
2001-A Supplement.
"NEWCO PUT OPTION AGREEMENT" shall have the meaning specified in the Series
2001-A Supplement.
"NEWCO PORT OPTION AND PUT AGREEMENTS" shall mean the Newco Option
Agreement and Newco Put Option Agreement.
"NEWCO TRANSFER" shall have the meaning specified in the Series 2001-A
Supplement.
"NISSAN GROUP" shall mean Nissan Mexicana, S.A. de C.V.
"NOTICE PERIOD" shall have the meaning specified in SECTION 7.1.
"OBLIGOR" shall mean, with respect to any Purchased Receivable, the
Customer Obligor.
"OBLIGOR AGREEMENT" shall mean the agreement between a Customer Obligor and
the Seller providing for the Customer Obligor's purchase of Services from the
Seller, as amended or supplemented from time to time in accordance herewith, as
identified on SCHEDULE 4, and any related shipping orders, bills of lading and
other agreements.
"OCTOBER 2002 CONTROL AGREEMENT" shall mean that Amended and Restated
Account Control Agreement, dated as of October 25, 2002, among TMM, each other
Seller and Citibank
"OCTOBER 2002 CONVERSION AGREEMENT" shall mean that Amended and Restated
Paying and Conversion Agency Agreement, dated as of October 25, 2002, among TMM,
each other Seller and Scotiabank Inverlat, S.A.
"OCTOBER 2002 FEE LETTER" shall mean that Fee Letter, dated as of October
25, 2002, between TMM and Citibank
15
"OCTOBER 2002 GUARANTY" shall mean that Amended and Restated Guaranty,
dated as of October 25, 2002, by TMM for the benefit of the "Beneficiaries"
named therein.
"OCTOBER 2002 MASTER TRUST AGREEMENT" shall have the meaning set forth in
the first recital.
"OCTOBER 2002 OPTION AGREEMENT" shall mean that certain Amended and
Restated Option Agreement dated as of October 25, 2002, between TMM Multimodal
and the Trustee.
"OCTOBER 2002 PUT OPTION AGREEMENT" shall mean that certain Amended and
Restated Put Option Agreement dated as of October 25, 2002, between TMM
Multimodal and the Trustee.
"OCTOBER 2002 SERIES 2001-A SUPPLEMENT" shall have the meaning set forth in
the second recital.
"OCTOBER 2002 SERIES 2002-A SUPPLEMENT" shall have the meaning set forth in
the second recital.
"OCTOBER 2002 TRANSACTION DOCUMENTS" shall mean the October 2002 Master
Trust Agreement, the October 2002 Series 2001-A Supplement, the October 2002
Series 2002-A Supplement, the October 2002 Guaranty, the October 2002 Fee
Letter, the October 2002 Control Agreement, the Sellers' Certificate, the
October 2002 Conversion Agreement, the October 2002 Put Option Agreement and the
October 2002 Option Agreement.
"OFAC" shall have the meaning specified in SECTION 3.1(a)(xiv).
"OFFICERS' CERTIFICATE" shall mean a certificate signed by a duly
authorized officer of the applicable Seller, the Sellers' Representative or the
Servicer on behalf of such applicable entity.
"OPEN ACCOUNT RECEIVABLE" shall mean a Receivable from a Customer Obligor
created on an open account basis.
"OPINION OF COUNSEL" shall mean a written opinion of counsel, who may be
counsel for or an employee of the Person providing the opinion and who shall be
reasonably acceptable to the Trustee and which is addressed to the Trustee and
each of the Investor Certificateholders for their reliance.
"OPTION AGREEMENT" shall mean the Amended and Restated Option Agreement
dated as of October 25, 2002, between TMM Multimodal and the Trustee, in the
form of EXHIBIT J attached hereto, as the same may be amended from time to time,
including without limitation, as amended by the Amendment to Option Agreement.
"ORIGINAL FEE LETTER" shall mean that Fee Letter, dated November 30, 2001,
between TMM and Citibank
"ORIGINAL GUARANTY" shall mean that Guaranty, dated November 30, 2001, by
TMM for the benefit of the "Beneficiaries" named therein.
16
"ORIGINAL MASTER TRUST AGREEMENT" shall have the meaning set forth in the
first recital.
"ORIGINAL SERIES 2001-A CERTIFICATES" shall have the meaning specified in
the Series 2001-A Supplement.
"ORIGINAL SERIES 2001-A SUPPLEMENT" shall mean that Series 2001-A
Supplement, dated as of November 30, 2001, among TMM, each other Seller, the
Trustee and Citibank
"OWED AMOUNT" shall mean, with respect to any Eligible Purchased
Receivable, as of any date of determination, the amount invoiced in Dollars
and/or Pesos due and payable for which payment has not yet been made by the
applicable Customer Obligor.
"PAYING AGENT" shall have the meaning specified in SECTION 5.6 and shall
initially, and for so long as The Bank of
New York is acting as Trustee, be the
Trustee.
"PEMEX" shall mean PEMEX Refinacion, a subsidiary of Petroleos Mexicanos, a
decentralized public entity of the Federal Government of Mexico.
"PEMEX RECEIVABLES SALE AGREEMENT" shall mean the Receivables Sale
Agreement, dated as of November 30, 2001, by and among the Trustee and Naviera
del ▇▇▇▇▇▇▇▇, ▇.▇. de C.V., as Seller, with respect to the Purchased Receivables
for which PEMEX is the Customer Obligor, as amended by the First Amendment to
PEMEX Receivables Sale Agreement.
"PERIODIC REPORT" shall mean the Weekly Trustee Report, the Monthly Trustee
Report and each other report regularly prepared in accordance with the terms of
the Transaction Documents.
"PERMITTED INVESTMENTS" shall mean, unless otherwise provided in the
Supplement with respect to any Series, negotiable instruments or securities
represented by instruments, denominated in Dollars, in book-entry, bearer or
registered form which mature no later than the last Business Day preceding the
succeeding Distribution Date and evidence:
(i) obligations of or fully guaranteed with respect to timely
payment by the United States of America;
(ii) demand deposits, time deposits or certificates of deposit of
any depositary institution or trust company incorporated under the laws of
the United States of America or any state thereof and subject to
supervision and examination by federal or state banking or depositary
institution authorities; PROVIDED, HOWEVER, that at the time of the Trust's
investment or contractual commitment to invest therein, the certificates of
deposit (other than such obligations whose rating is based on collateral or
on the credit of a Person other than such institution or trust company) of
such depositary institution or trust company shall have a short-term debt
rating from Standard & Poor's of at least "A-1" and from Moody's of at
least P-1 or a long-term senior unsecured debt rating from Standard &
Poor's of at least "A" and from Moody's of at least "A";
(iii) commercial paper having, at the time of the Trust's investment
or contractual commitment to invest therein, a short-term debt rating from
Standard &
17
Poor's of at least "A-1" and from Moody's of at least P-1, or a long-term
senior unsecured debt rating from Standard & Poor's of at least "A" and
from Moody's of at least "A";
(iv) demand deposits, time deposits or certificates of deposit
which are fully insured within the limits of insurance set by the FDIC;
(v) bankers acceptances issued by any depositary institution or
trust company described in CLAUSE (b) above; or
(vi) money market funds or money market mutual funds rated "Am,
Am-g" or higher by Standard & Poor's Corporation and "A-2" or higher by
▇▇▇▇▇'▇ Investors Services, Inc. (including such funds for which the
Trustee or any of its affiliates is investment manager or advisor).
Notwithstanding the foregoing, at any time that TMM is not the Servicer, the
Servicer at such time shall only be permitted to choose "Permitted Investments"
of the type set forth in either clause (i) and (iv) of this definition.
"PERSON" shall mean any legal person, including any individual,
corporation, limited liability company, limited liability partnership,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization, governmental entity or other entity of similar
nature.
"PESO DENOMINATED ACCOUNT" shall have the meaning specified in SECTION
4.1(b).
"PESO QUALIFIED INSTITUTION" shall mean a bank organized under the laws of
Mexico, which otherwise satisfies the rating standards set forth in the
definition of Qualified Institution and which is otherwise authorized in Mexico
to conduct banking activities including the opening of deposit accounts.
"PESOS" or "PS." shall mean Mexican Pesos.
"PESO THRESHOLD" shall have the meaning specified in SECTION 4.1(c).
"PORT COMPANY" shall have the meaning specified in the Series 2001-A
Supplement.
"PORT COMPANY DIVIDEND ACCOUNT RECEIVABLE" shall have the meaning specified
in SECTION 3.1(b)(vi).
"PORT COMPANY AGREEMENTS" shall mean that certain (i) Amended and Restated
Shareholders' Agreement dated June 21, 2001 between TMM and SSA, Mexico, Inc., a
Washington corporation, (ii) Stock Purchase Agreement, dated October 12, 2000,
between TMM and SSA, International, Inc. (predecessor in interest to SSA,
Mexico, Inc.), (iii) the Bylaws of the Port Company, (iv) Amended and Restated
Master Agreement dated June 21, 2001 between TMM and SSA Mexico, Inc., (iv) that
certain Letter Agreement dated December 9, 2002 between SSA and TMM and the
related Unanimous Shareholders Resolutions
18
of SSA and TMM reflecting the Letter Agreement waivers in respect of the Bylaws
of the Port Company.
"PORT COMPANY DIVIDEND" shall have the meaning specified in the Series
2001-A Supplement.
"PORT COMPANY NET WORTH" shall have the meaning specified in the Series
2001-A Supplement.
"PORT OPTION AGREEMENT" shall mean that certain Option Agreement, dated as
of December 10, 2002, between TMM and the Trustee, in the form of EXHIBIT Q
attached hereto.
"PORT PUT OPTION AGREEMENT" shall mean that certain Put Option Agreement,
dated as of December 10, 2002, between TMM and the Trustee, in the form of
EXHIBIT R attached hereto.
"PORT SHARES" shall mean all of the shares of equity securities of TMM
Puertos y Terminales, S.A. de C.V., held by TMM or, subsequent to the Newco
Transfer, held by Newco.
"PORT SHARES PREPAYMENT EVENT" shall mean either:
(i) the occurrence of a Port Shares Sale Event; or
(ii) the obligation of TMM or, subsequent to the Newco Transfer, Newco, to
make any payment to the Trustee, including the payment of any Subordinated
Certificate Purchase Price (as such term is defined in the Port Put Option
Agreement or Newco Put Option Agreement, as applicable), pursuant to the
terms of the Port Put Option Agreement or Newco Put Option Agreement, as
applicable.
"PORT SHARES PREPAYMENT PROCEEDS" shall mean, with respect to any Port
Shares Prepayment Event, the gross proceeds resulting from such Port Shares
Prepayment Event without reduction or setoff for costs or expenses related to or
resulting from such Port Shares Prepayment Event.
"PORT SHARES SALE EVENT" shall mean any sale, transfer or disposition by
TMM or its Affiliates or subsequent to the Newco Transfer, by Newco or its
Affiliates, of the Port Shares (other than the Newco Transfer) whether or not
such sale arises pursuant to the terms of the Port Option Agreement or the Newco
Option Agreement, as applicable.
"PRINCIPAL AMORTIZATION AMOUNT" with respect to any Series, shall have the
meaning specified in the Supplement for such Series.
"PRINCIPAL TERMS" shall have the meaning, with respect to any Series issued
pursuant to an Exchange, specified in SECTION 5.9(b).
"PROCEEDING PARTY" shall have the meaning specified in SECTION 10.20.
"PROCEEDS" shall mean any of (i) TMM Prepayment Proceeds, (ii) Port Shares
Prepayment Proceeds or (iii) Multimodal Prepayment Proceeds.
19
"PROPERTY" shall mean any interest in any kind of property or asset,
whether real, personal or mixed, and whether tangible or intangible.
"PROPOSED INSTRUCTION NOTICE" shall have the meaning specified in SECTION
8.1(d)(ii).
"PURCHASE DATE" shall have the meaning specified in SECTION 8.1(d)(iii).
"PURCHASE MONEY LIENS" shall have the meaning specified in SECTION
3.2(aa)(viii).
"PURCHASE NOTICE" shall have the meaning specified in SECTION 8.1(d)(iii).
"PURCHASED RECEIVABLES" shall mean Open Account Receivables and Committed
Receivables from Eligible Obligors, and Related Security in respect of any
thereof.
"PUT OPTION AGREEMENT" shall mean the Amended and Restated Put Option
Agreement dated as of October 25, 2002, between TMM Multimodal and the Trustee,
in the form of EXHIBIT K attached hereto, as the same may be amended from time
to time, including without limitation, as amended by the Amendment to Put Option
Agreement.
"QUALIFIED INSTITUTION" shall mean a depository institution (which may
include the Trustee or an Affiliate of the Trustee), organized under the laws of
the United States or any one of the states thereof, which at all times has a
certificate of deposit rating of at least "A-1" from Standard & Poor's and "P-1"
from Moody's or a long-term senior unsecured debt rating of at least "A" by
Standard & Poor's and "A" by Moody's and deposit insurance as required by law
and by the FDIC.
"QUARTERLY INTEREST" shall mean the amount of interest due for any Accrual
Period as set forth in the definition of Quarterly Interest in the applicable
Supplement.
"QUARTERLY PERIOD" shall mean the period beginning on and including the
first day of a calendar quarter to and including the last day of such calendar
quarter.
"RAPID AMORTIZATION COMMENCEMENT DATE" with respect to any Series, shall
have the meaning specified in the Supplement for such Series.
"RAPID AMORTIZATION EVENT" shall have the meaning specified in SECTION 7.1
and, with respect to any Series, specified in the related Supplement for any
Series.
"RAPID AMORTIZATION NOTICE" shall have the meaning specified in SECTION
7.1.
"RAPID AMORTIZATION PERIOD" with respect to any Series, shall have the
meaning specified in the Supplement for such Series.
"RECEIVABLES" shall mean any right to any payments in Dollars (or Pesos for
which the conditions set forth in SECTION 4.1(c) have been satisfied) from a
Customer Obligor, whether now or hereafter existing, due or to become due,
arising (or that in the future may arise) from the sale by the relevant Seller
of Services, existing as of the date of this Master Trust Agreement or
originated on or after the date of this Master Trust Agreement, including (but
not limited to) the
20
right to payment for Services, any interest or finance charges, other monetary
obligations of such Customer Obligor with respect thereto and any other rights
of such Seller under the Receivables. The term "Receivables" shall include Open
Account Receivables and Committed Receivables.
"RECEIVABLES COVERAGE RATIO" shall mean, as of any Determination Date
immediately following a Quarterly Period, the amount obtained by dividing (a)
the amount of Collections received during the Quarterly Period immediately
preceding such date of Determination Date by (b) the Aggregate Required Coverage
Amounts applicable as of the Distribution Date immediately following such
Quarterly Period.
"RECEIVABLE SHORTFALL PAYMENTS" shall mean, for any Collection Period,
payments required to be made by the Sellers' Representative to the Trust
pursuant to SECTION 4.2(a) or SECTION 4.2(b).
"RECEIVABLES SALE AGREEMENTS" shall mean (i) the Receivables Sale Agreement
dated as of November 30, 2001 by and among the Sellers and the Trustee and (ii)
the PEMEX Receivables Sale Agreement.
"RECORD DATE" shall mean, with respect to a Series on any Distribution
Date, the close of business on the third Business Day before the last day of the
Related Accrual Period.
"REGISTERED CERTIFICATES" shall have the meaning specified in SECTION
5.1(b).
"REGULATION S" shall mean Regulation S under the Securities Act.
"REGULATION S CERTIFICATE" shall have the meaning specified in SECTION
5.1(c).
"RELATED ACCRUAL PERIOD" shall mean with respect to any Distribution Date
or Determination Date, the Accrual Period immediately preceding such
Distribution Date or the Accrual Period in which the Determination Date falls,
respectively.
"RELATED COLLECTION PERIOD" shall mean, with respect to any Distribution
Date or Determination Date, the Collection Period immediately preceding such
Distribution Date or Determination Date, respectively.
"RELATED SECURITY" shall mean, with respect to any Receivable: (a) all of
the relevant Seller's interest, if any, in merchandise of Obligors relating to
the provision of Services which gave rise to such Receivable; (b) all other
security interests or liens and property subject thereto (including any rights
arising out of any financing statements related thereto) from time to time
purporting to secure payment of such Receivable, whether pursuant to a contract
related to such Receivable, or otherwise; (c) all guarantees, letters of credit
and other agreements or arrangements of whatever character from time to time
supporting or securing payment of such Receivable, whether pursuant to a sales
contract related to such Receivable, or otherwise; (d) all of the relevant
Seller's contract rights relating to the Services which gave rise to such
Receivable; (e) any funds received from a Customer Obligor, underwriters or any
other source related thereto (except those funds the payment of which is in the
nature of reimbursement for sums expended) whether in the nature of insurance
recoveries, demurrage or dead freight; and (f) any proceeds of any of the
foregoing.
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"REQUIRED COVERAGE AMOUNT" shall mean, with respect to each Series of
outstanding Certificates on any date of determination, without duplication, an
amount equal to the sum of (a) the Quarterly Interest (excluding any accrued
Quarterly Interest that became due on any prior Distribution Date that has not
been distributed) due on the Investor Certificates for such Series on such date
(if such date is a Distribution Date) or on the next succeeding Distribution
Date (if such date is not a Distribution Date), (b) the Principal Amortization
Amount scheduled to be due on the next Distribution Date (other than the
Expected Final Distribution Date) for such Series, (c) the Trustee's Fees and
the Servicer's fees due with respect to such Series on such date (if such date
is a Distribution Date) or on the next succeeding Distribution Date (if such
date is not a Distribution Date), and (d) the aggregate fees and other aggregate
required transaction costs due quarterly for all other outstanding Series of
Certificates (such as servicing, administration, Enhancement and other fees due
to third parties regularly as part of any such Series).
"REQUIREMENTS OF LAW" for any Person shall mean the certificate of
incorporation or articles of association and by-laws or other organizational or
governing documents of such Person, and any law, treaty, rule or regulation
(including, without limitation, labor laws), or determination of an arbitrator
or Governmental Authority, in each case applicable to or binding upon such
Person or to which such Person is subject.
"RESPONSIBLE OFFICER" shall mean the Chief Financial Officer, any Vice
President, the Treasurer, or any other officer of a Seller, the Seller's
Representative, the Guarantor or the Servicer, as applicable, customarily
performing functions similar to those performed by any of the above-designated
officers and also, with respect to a particular matter, any other officer to
whom such matter is referred because of such officer's knowledge of and
familiarity with the particular subject.
"RESPONSIBLE TRUSTEE OFFICER" shall mean, when used with respect to the
Trustee (a) any officer within the corporate trust department of the Trustee
including any vice president, assistant vice president, treasurer, assistant
treasurer, trust officer or any other officer of the Trustee who customarily
performs functions similar to those performed by the persons who at the time
shall be such officers, respectively, or to whom any corporate trust matter is
referred because of such person's knowledge of and familiarity with the
particular subject and (b) who shall have direct responsibility for the
administration of this Master Trust Agreement.
"RESTRICTED SUBSIDIARY" shall mean any consolidated Subsidiary of TMM other
than Grupo TFM and its consolidated Subsidiaries.
"RULE 144A" shall mean Rule 144A under the Securities Act.
"SECOND CLOSING DATE" shall mean October 25, 2002.
"SECOND CLOSING DATE DOCUMENTS" shall mean the October 2002 Master Trust
Agreement, the October 2002 Series 2002-A Supplement, the October 2002 Series
2001-A Supplement, the Series 2002-A Certificates, the Sellers' Certificate, the
October 2002 Control Agreement, the October 2002 Conversion Agreement, the
October 2002 Put Option Agreement, the October 2002 Option Agreement, the First
Amendment to PEMEX Receivables Sale Agreement, the October 2002 Guaranty and the
October 2002 Fee Letter.
22
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended.
"SELLER" shall mean each of, and "Sellers" shall mean collectively, (i) TMM
and (ii) each Subsidiary of TMM which is identified as a Seller on the signature
pages hereto, or any successor thereto meeting the requirements of SECTION 3.3.
"SELLERS' CERTIFICATE" shall mean the certificate that represents the
interest of the Sellers in the Trust, executed and authenticated by the Trustee,
substantially in the form of EXHIBIT A, with appropriate insertions, and
exchangeable as provided in SECTION 5.9.
"SELLER PERCENTAGE" shall mean the percentage set forth next to each
Seller's signature to this Master Trust Agreement which each Seller agrees and
acknowledges represents the applicable portion that the value of the Purchased
Receivables transferred by such Seller to the Trustee on the Initial Closing
Date constitutes of the aggregate value of all of the Purchased Receivables
transferred by all of the Sellers to the Trustee on such date.
"SELLERS' REPRESENTATIVE" shall have the meaning specified in SECTION 3.5.
"SENIOR PAYMENT OBLIGATIONS" shall have the meaning specified in SECTION
5.14(a).
"SERIES" shall mean any series of Investor Certificates.
"SERIES 2001-A" shall have the meaning specified in the Series 2001-A
Supplement.
"SERIES 2001-A CERTIFICATE" shall have the meaning specified in the Series
2001-A Supplement.
"SERIES 2001-A CERTIFICATEHOLDERS" shall have the meaning specified in the
Series 2001-A Supplement.
"SERIES 2001-A CERTIFICATE BALANCE" shall have the meaning specified in the
Series 2001-A Supplement.
"SERIES 2001-A FULL REPURCHASE PAYMENT" shall have the meaning specified in
the Series 2001-A Supplement.
"SERIES 2001-A REPAYMENT DATE" shall have the meaning specified in the
Series 2002-A Supplement.
"SERIES 2001-A SUPPLEMENT" shall have the meaning set forth in the third
recital.
"SERIES 2001-A TERMINATION DATE" shall have the meaning specified in the
Series 2001-A Supplement.
"SERIES 2002-A CERTIFICATE" shall have the meaning specified in the Series
2002-A Supplement.
"SERIES 2002-A CERTIFICATE BALANCE" shall have the meaning specified in the
Series 2002-A Supplement.
23
"SERIES 2002-A CERTIFICATEHOLDER" shall have the meaning specified in the
Series 2002-A Supplement.
"SERIES 2002-A FULL REPURCHASE PAYMENT" shall have the meaning specified in
the Series 2002-A Supplement.
"SERIES 2002-A SUPPLEMENT" shall mean that certain Series 2002-A
Supplement, dated as of October 25, 2002, among TMM, each other Seller, the
Trustee and Maple, as amended by the Amendment to Series 2002-A Supplement and
Consent.
"SERIES 2002-A PURCHASER" shall have the meaning specified in SECTION
8.1(d).
"SERIES ACCOUNT" shall mean any account established pursuant to this Master
Trust Agreement or a Supplement for the benefit of the related Series (including
any Collection Subaccount and any Certificate Account).
"SERIES PERCENTAGE" shall mean, with respect to any Series, (a) if a Rapid
Amortization Event or Unmatured Rapid Amortization Event shall have occurred and
be continuing on any date of determination, a fraction, expressed as a
percentage, the numerator of which is the Certificate Balance of such Series and
the denominator of which is an amount equal to the Aggregate Certificate Balance
on such date and, (b) if no Rapid Amortization Event or Unmatured Rapid
Amortization Event shall have occurred and be continuing, on any date of
determination a fraction, expressed as a percentage, the numerator of which is
the Distribution Amount of such Series (expressed as a number) and the
denominator of which is an amount equal to the sum of the aggregate Distribution
Amounts for all Series outstanding; PROVIDED, HOWEVER, for purposes of
calculating each Series' share of any Receivables Shortfall Payment, Multimodal
Prepayment Proceeds, Trustee Fees or Servicing Fees, "Series Percentage" shall
be defined as set forth in clause (a) of this definition.
"SERIES REQUIRED INVESTOR CERTIFICATEHOLDERS" shall mean, with respect to
an action or decision of the Investor Certificateholders, Holders of
Certificates of a Series which represent at least 51% of the aggregate principal
amount of all Certificates of such Series.
"SERIES REQUIRED INVESTOR CERTIFICATEHOLDERS (SUPER MAJORITY)" shall mean,
with respect to an action or decision of the Investor Certificateholders of a
Series, Holders of Certificates of such Series which represent at least 66-2/3%
of the aggregate principal amount of all Certificates of such Series.
"SERIES TERMINATION DATE" shall mean, with respect to any Series, the
termination date specified in the related Supplement.
"SERVICER" shall initially mean TMM and its successors and permitted
assigns and designees and, thereafter, any Person appointed as successor
Servicer as provided herein.
"SERVICER DEFAULT" shall mean (a) the Servicer fails to perform its
obligation with respect to remitting Collections to the Trustee and such failure
remains unremedied for three (3) Business Days after receipt by the Servicer of
such Collections, (b) the Servicer fails to perform any other covenant of the
Servicer in this Master Trust Agreement or applicable Supplement in
24
any material respect and such failure remains unremedied for seven (7) Business
Days after the earlier of (i) actual knowledge thereof by a Responsible Officer
of the Servicer and (ii) written notice thereof to the Servicer by the Trustee,
(c) any representation or warranty made by the Servicer in any Transaction
Document or any instrument, document or certificate delivered by the Servicer
pursuant thereto proves to be incorrect when made in any material respect and
shall not have been remedied for a period of seven (7) Business Days after the
earlier of (I) actual knowledge by a Responsible Officer of the Servicer and
(II) written notice thereof to the Servicer by the Trustee, or (d) the
conditions to the assumption of the obligations of the Servicer in SECTION
6.6(c) are not satisfied; PROVIDED THAT, as long as TMM acts as Servicer
hereunder, (A) clause (b) of this definition shall only apply to the failure by
the Servicer to perform the covenants set forth in paragraphs (a) through (e)
and paragraphs (g) and (h) of SECTION 6.3 of this Master Trust Agreement, and
(B) the cure period specified in clause (c) of this definition shall be 30 days
instead of seven (7) Business Days unless the breach of such representation or
warranty shall result in a Material Adverse Effect (in which case the cure
period shall be seven (7) Business Days).
"SERVICER REPORT" shall have the meaning specified in SECTION 6.3(d).
"SERVICING FEE" shall mean, with respect to any Accrual Period, up to
one-tenth of one percent (0.10%) per annum of the Owed Amounts at the beginning
of such Accrual Period, PROVIDED, HOWEVER, if TMM is the Servicer, the Servicing
Fee shall be equal to U.S.$100 per calendar month.
"SERVICES" shall mean transportation (including maritime shipping, rail
freight shipping and trucking services), logistics, port and terminal operations
management, storage, container maintenance and repair and cargo handling and
related services.
"SHORTFALL" with respect to any Series shall have the meaning specified in
the related Supplement.
"SOLVENT" shall mean with respect to a Person (a) the fair saleable value
(on a going concern basis) of such Person's assets exceeds such Person's
liabilities, contingent or otherwise, fairly valued, (b) such Person will be
able to pay its debts as they become due and (c) such Person will not be left
with unreasonably small capital as is necessary to satisfy all of its current
and reasonably anticipated obligations.
"STANDARD & POOR'S" shall mean Standard & Poor's Ratings Services, a
Division of the ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., and its successors and assigns.
"SUBSIDIARY" shall mean any corporation (i) 50% or more of the capital
stock of which is directly or indirectly owned by any Seller, or (ii) of which
any Seller directly or indirectly owns or controls stock which under ordinary
circumstances (not dependent upon the happening of a contingency) has voting
power to elect a majority of the board of directors of such corporation.
"SUBORDINATED CERTIFICATE" shall mean any one of the Certificates that
represents the interests of any Subordinated Certificateholder in the Trust,
executed and authenticated by the Trustee substantially in the form of
Subordinated Certificate attached hereto as EXHIBIT L and
25
having the rights and subject to the limitations applicable to Subordinated
Certificates as set forth in this Master Trust Agreement.
"SUBORDINATED CERTIFICATE PURCHASER" shall mean either (i) TMM Multimodal
or its permitted successors or assigns as purchaser of a Subordinated
Certificate under the Put Option Agreement or (ii) either (x) TMM or its
permitted successors or assigns as purchaser of a Subordinated Certificate under
the Port Put Option Agreement or (y) Newco or its permitted successors or
assigns as purchaser of a Subordinated Certificate under the Newco Put Option
Agreement.
"SUBORDINATED CERTIFICATEHOLDER" shall mean the Holder of a Subordinated
Certificate.
"SUBORDINATED PAYMENT OBLIGATIONS" shall have the meaning specified in
SECTION 5.14(a).
"SUCCESSOR SERVICER CRITERIA" as applied to a Person designated as a
replacement Servicer, shall mean a Person which, at the time of its appointment
as Servicer, (a) has experience servicing a portfolio of trade receivables, (b)
is legally qualified and has the capacity to service the Purchased Receivables,
and (c) has demonstrated the ability to service professionally and competently a
portfolio of trade receivables in accordance with high standards of skill and
care.
"SUPPLEMENT" shall mean, with respect to any Series, a supplement to this
Master Trust Agreement complying with the terms of SECTION 5.9(b) (if
applicable), executed in conjunction with the issuance of such Series.
"SWAP CONTRACT" shall mean (a) any and all rate swap transactions, basis
swaps, forward rate transactions, commodity swaps, commodity options, forward
commodity contracts, equity or equity index swaps or options, bond or bond price
or bond index swaps or options or forward bond or forward bond price or forward
bond index transactions, interest rate options, forward foreign exchange
transactions, cap transactions, floor transactions, collar transactions,
currency swap transactions, cross-currency rate swap transactions, currency
options, or any other similar transactions or any combination of any of the
foregoing (including any options to enter into any of the foregoing), whether or
not any such transaction is governed by or subject to any master agreement, and
(b) any and all transactions of any kind, and the related confirmations, which
are subject to the terms and conditions of, or governed by, any form of master
agreement published by the International Swaps and Derivatives Association,
Inc., or any other master agreement (any such master agreement, together with
any related schedules, as amended, restated, extended, supplemented or otherwise
modified in writing from time to time, a "MASTER AGREEMENT"), including any such
obligations or liabilities under any Master Agreement.
"SWEEP ACCOUNT" shall have the meaning specified in SECTION 4.1(a).
"TAXES" shall mean all present and future sales, use, gross receipts,
general corporation, franchise, income, mortgage, profits, withholding,
intangibles, property (tangible and intangible), privilege, license, value
added, ad valorem, capital, excise, stamp and other taxes, duties and other
similar governmental charges and assessments imposed by or on behalf of any
government or taxing authority (including interest, fines or penalties thereon
and additions thereto).
26
"THIRD CLOSING DATE" shall have the meaning specified in SECTION 1.3.
"TMM" shall mean Grupo TMM, S.A., a corporation organized under the laws of
Mexico.
"TMM CREDIT AND COLLECTION POLICIES" shall mean the "POLITICA DE CREDITO DE
GRUPO TMM, S.A. Y EMPRESAS SUBSIDIARIAS" set forth as SCHEDULE 2 hereto, as
amended or supplemented from time to time in accordance herewith.
"TMM MULTIMODAL" shall mean TMM Multimodal, S.A. de C.V., a corporation
organized under the laws of Mexico.
"TMM MULTIMODAL SALE EVENT" shall mean any sale, transfer or disposition by
TMM Multimodal or its Affiliates of the Grupo TFM Shares (as such term is
defined in the Option Agreement) whether or not such sale arises pursuant to the
terms of the Option Agreement.
"TMM PREPAYMENT PROCEEDS" shall have the meaning set forth in the Series
2001-A Supplement.
"TMM PORT OPTION AND PUT AGREEMENTS" shall collectively mean the Port
Option Agreement and the Port Put Option Agreement.
"TRANSACTION DOCUMENTS" shall mean this Master Trust Agreement, the
Receivables Sale Agreements, the Original Fee Letter, the October 2002 Fee
Letter, the Amendment Fee Letter, the Guaranty, each Supplement, the Option
Agreement, the Put Option Agreement, the TMM Port Option and Put Agreements, the
Newco Port Option and Put Agreements (but only subsequent to the Newco
Transfer), the Conversion Agreement, the Control Agreement, the Acknowledgments,
the Certificates and the Amendment Documents.
"TRANSFER AGENT AND REGISTRAR" shall have the meaning specified in SECTION
5.3 and shall initially be the Trustee.
"TRANSFER DATE" shall mean, with respect to any Series, the Business Day
immediately prior to each Distribution Date.
"TRUST" shall mean the Logistics Trust 2000-A created by this Master Trust
Agreement.
"TRUST ASSETS" shall have the meaning specified in SECTION 2.1.
"TRUST INDENTURE ACT" shall mean the Trust Indenture Act of 1939, as
amended from time to time.
"TRUST TERMINATION DATE" shall mean, unless the Seller's Representative
notifies the Trustee otherwise in writing at a time when no Investor
Certificates are outstanding, the earlier to occur of (i) the day after the
Distribution Date following the date on which funds shall have been deposited in
the Collection Account or the applicable Series Account for the payment in full
of all principal, Quarterly Interest, Trustee Fees, Servicer Fees, Additional
Amounts and other amounts due or expected to become due on all Series of
Investor Certificates issued by the Trust
27
and (ii) the expiration of twenty one (21) years from the death of the last
survivor of the descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the father of the late
President of the United States, living on the date of this Master Trust
Agreement.
"TRUSTEE" shall mean the institution executing this Master Trust Agreement
as Trustee, or its successor in interest, or any successor trustee appointed as
herein provided.
"TRUSTEE FEE" shall mean, with respect to any Accrual Period, the amount
agreed to in writing from time to time between the Trustee and the Sellers as
the compensation to be paid by the Sellers' Representative to the Trustee for
the services to be rendered by the Trustee in connection with the Investor
Certificates.
"TRUSTEE INDEMNIFIED PARTY" shall have the meaning specified in SECTION
8.16.
"UCC" shall mean the Uniform Commercial Code, as amended from time to time,
as in effect in the State of
New York.
"UNMATURED RAPID AMORTIZATION EVENT" shall mean any event which, with the
giving of notice or lapse of time, or both, would become a Rapid Amortization
Event.
"U.S./MEXICO TAX TREATY" shall mean the Convention Between the Government
of the United States of America and the Government of the United Mexican States
for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with
Respect to Taxes on Income as in effect on the date hereof.
"U.S. REGISTERED CERTIFICATE" shall mean a Registered Certificate other
than a Regulation S Certificate.
"WAIVER NOTICE" shall have the meaning specified in SECTION 7.1.
"WEEKLY ALLOCATION DAY" shall mean the Friday of each calendar week or, if
any such day is not a Business Day, the next Business Day.
"WEEKLY TRUSTEE REPORT" shall mean each report required to be delivered by
the Trustee (with the cooperation of the Servicer) as defined in SECTION 8.1(b).
"WHOLLY-OWNED SUBSIDIARY" of any Person shall mean any Subsidiary of such
Person of which all of the shares of Capital Stock (except directors' qualifying
shares) are at the time directly or indirectly owned by such Person or by one or
more Wholly-Owned Subsidiaries of such Person or by such Person and one or more
of its Wholly-Owned Subsidiaries.
Section 1.2 OTHER DEFINITIONAL PROVISIONS.
(a) All terms defined in any Supplement or this Master Trust
Agreement shall have the meanings set forth therein or herein when used in any
certificate or other document made or delivered pursuant thereto or hereto
unless otherwise defined therein.
28
(b) As used herein and in any certificate or other document made
or delivered pursuant hereto or thereto, accounting terms not defined in SECTION
1.1 shall have the respective meanings given to them under IAS. To the extent
that the definitions of accounting terms herein are inconsistent with the
meanings of such terms under IAS, the definitions contained herein shall
control.
(c) The agreements, representations and warranties of TMM
contained in this Master Trust Agreement and in any Supplement, in its capacity
as Servicer, shall be deemed to be the agreements, representations and
warranties of TMM solely in such capacity for so long as TMM acts in such
capacity under this Master Trust Agreement and any such Supplement.
(d) The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Master Trust Agreement shall refer to any
Supplement or this Master Trust Agreement as a whole and not to any particular
provision of this Master Trust Agreement or any Supplement; and Section,
Schedule and Exhibit references contained in this Master Trust Agreement or any
Supplement are references to Sections, Schedules and Exhibits in or to this
Master Trust Agreement or such Supplement unless otherwise specified.
Section 1.3 EFFECTIVENESS. This Master Trust Agreement and the other
Amendment Documents shall be effective as of the earliest date (on or before
December 23, 2002) (the "THIRD CLOSING DATE") on which all of the conditions
precedent set forth in Section 2.4 of the Series 2001-A Supplement shall have
been satisfied or waived by the applicable parties as set forth therein and upon
such effective date shall amend and completely restate and supersede the October
2002 Transaction Documents. Notwithstanding the amendment and restatement of the
October 2002 Transaction Documents, nothing herein or in the other Transaction
Documents shall relieve TMM, any other Seller or TMM Multimodal of any Rapid
Amortization Event that has occurred and is continuing or any liability or
obligation that accrued under the October 2002 Transaction Documents prior to
the Third Closing Date.
ARTICLE II
CONVEYANCE OF PURCHASED RECEIVABLES; ISSUANCE OF CERTIFICATES
Section 2.1 CONVEYANCE OF PURCHASED RECEIVABLES. Pursuant to the
Receivables Sale Agreements (paragraph 2.1 of each of which is incorporated
herein in its entirety by this reference as if fully set forth herein) and as of
each applicable Closing Date, the Sellers sold, transferred, assigned, set over
and conveyed to the Trustee for the benefit of the Certificateholders, with
recourse pursuant to Article 391 of the Commerce Code of Mexico only to the
extent expressly provided in this Master Trust Agreement or any Supplement, the
Purchased Receivables, all funds collected or to be collected in respect of such
Purchased Receivables and all proceeds thereof, which shall initially constitute
the assets of the Trust. Such property, together with (i) the Transaction
Documents and any agreement or rights transferred to the Trust in connection
with any Series pursuant to a Supplement for such Series, (ii) all monies and
investments on deposit, from time to time, in the Peso Denominated Account, the
Sweep Account, the Collection Account or the Series Accounts (other than amounts
payable to any Seller as provided in this Master Trust Agreement or any
Supplement), (iii) the Peso Denominated Account, the Sweep Account, the
Collection Account and the Series Accounts and
29
any Permitted Investments with respect thereto, (iv) all rights of the Sellers
against the Obligors under the Purchased Receivables, (v) the Sellers'
obligation to pay to the Trust the Receivable Shortfall Payments and Additional
Amounts, Proceeds from Prepayment Events, any Enhancement and all monies
available under any Enhancement to be provided for any Series for payment to the
Certificateholders of such Series, (vi) the Sellers' obligation to purchase the
Trust Assets or an undivided interest therein in certain circumstances and (vii)
all proceeds of the foregoing, shall constitute the assets of the Trust
(collectively, the "TRUST ASSETS").
Section 2.2 CERTAIN UNDERSTANDINGS REGARDING THE PURCHASED RECEIVABLES.
(a) The parties hereto agree and confirm their understanding that,
except as expressly provided or permitted by this Agreement, any Supplement or
the Receivables Sale Agreements, from and after the Initial Closing Date, the
Sellers shall have no (i) right, title or interest in or to the Purchased
Receivables, (ii) right or obligation to repurchase the Purchased Receivables or
(iii) right to amend or alter the purchase price for the Purchased Receivables.
(b) The parties agree and confirm their understanding that neither
the Sellers nor any of their subsidiaries or Affiliates in any way guarantees
payment of the Purchased Receivables and neither the Sellers nor any of their
respective subsidiaries or Affiliates shall be liable for non-payment of any
Purchased Receivables by any Customer Obligor. The foregoing will not limit
Sellers' repurchase obligations under any Supplement, including Section 3.1 of
the Series 2001-A Supplement or the Series 2002-A Supplement, or limit TMM's
liability as Servicer and Guarantor with respect to its representations and
warranties, indemnifications or covenants under the Transaction Documents or to
pay any amounts for which it has recourse liability to pay under any Transaction
Document.
Section 2.3 ACCEPTANCE BY TRUSTEE.
(a) The Trustee hereby acknowledges its acceptance, on behalf of
the Trust, of all right, title and interest previously held by each Seller in
and to (i) the Purchased Receivables, (ii) all funds collected or to be
collected in respect of the Purchased Receivables, (iii) all proceeds of amounts
payable with respect to the Purchased Receivables and (iv) the other Trust
Assets, and declares that it shall maintain such right, title and interest, and
other Trust Assets in Trust as herein set forth, for the benefit of all Investor
Certificateholders subject to the rights of the Series 2001-A Certificateholders
to the prior rights to certain repurchase payments payable on a recourse basis
by TMM as described at Section 3.1(a) of each of the Supplements and to receive
all TMM Prepayment Proceeds, as more fully set forth in the Transaction
Documents.
(b) The Trustee shall have no power to create, assume or incur
indebtedness or other liabilities in the name of the Trust other than as
contemplated in this Master Trust Agreement.
Section 2.4 ISSUANCE OF CERTIFICATES. The Trust may from time to time
issue Investor Certificates relating to any Series in accordance with ARTICLE V
hereof that shall represent undivided interests in the Trust Assets.
Section 2.5 TAX INDEMNITY.
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(a) The Sellers and the Sellers' Representative hereby agree to
jointly and severally indemnify and hold harmless the Trustee and its respective
trust delegates, officers, directors, advisors, attorneys and personnel
(collectively, the "INDEMNIFIED PERSONS") for all payments, liabilities and
damages that may result from any Sellers' or the Sellers' Representative's
non-performance of its tax obligations (the "TAX OBLIGATIONS") provided by
Mexican Applicable Law, or that arise from any transaction pursuant to or
derived from any of the Transaction Documents, as well as for Taxes, fees,
penalties or damages that may arise in case a claim, proceeding, judgment or
complaint is filed or presented against any of the Indemnified Persons in
connection with the Tax Obligations or the transactions contemplated herein or
for failure by any of the Sellers or the Sellers' Representative to comply with
its Tax Obligations. As a result, the Sellers and the Sellers' Representative
jointly and severally agree to reimburse the Indemnified Persons for any expense
of any nature incurred (including reasonable and documented attorney's fees and
expenses), and to repair any damages that such Indemnified Person may have
suffered as a result of its participation in any of the transactions or actions
contemplated herein.
(b) The obligations of the Sellers and the Sellers' Representative
specified in paragraph (a) above shall not be applicable in respect of the
Trustee or the Indemnified Persons in case of gross negligence, willful
misconduct or bad faith of the Trustee or any Indemnified Person.
(c) The obligation of the Sellers and Sellers' Representative
specified in this SECTION 2.5 shall be in addition to and not in limitation of
any other right or remedy which may be afforded to the Indemnified Persons under
this Master Trust Agreement or Applicable Law and shall survive the termination
of this Master Trust Agreement.
Section 2.6 TAX TREATMENT.
(a) It is the intent of the parties hereto that for United States
federal, state and local income tax purposes the Investor Certificates to be
issued hereunder will constitute indebtedness of the Sellers secured by the
Purchased Receivables and the Trust will constitute a security arrangement and
not a separate entity, and the parties hereto and each Certificateholder, by
acceptance of its Investor Certificate, agree to so treat the Investor
Certificates and the Trust for United States federal, state and local income tax
purposes.
(b) In the event that either the Investor Certificates or the
Trust is not so treated for United States federal, state or local income tax
purposes by any United States federal, state or local taxing authority, then it
is the intent of the parties hereto that the Trust and related arrangements be
treated for United States federal, state and local income tax purposes in a
manner that minimizes any liability of the Trust, Certificate Owners and the
Certificateholders for such federal, state and local taxes (without unduly
prejudicing the tax position of the Sellers) and the parties hereto and each
Certificateholder and Certificate Owner, by acceptance of its Investor
Certificate, agree to use its reasonable efforts (consistent with legal and
regulatory restrictions) to ensure that the Trust is not treated as an
association taxable as a corporation, for all United States federal, state and
local income tax purposes and to take no steps inconsistent with such treatment,
to the extent permitted by Applicable Law. Each Certificateholder and
Certificate Owner agrees that it will obtain from any Certificateholder or
Certificate Owner
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acquiring an interest in a Certificate from or through it (whether by purchase,
assignment, participation or otherwise) a written agreement to comply with this
SECTION 2.6.
Section 2.7 TRUE SALES.
(a) Each of the Sellers and the Trustee intend the transfers of
the Purchased Receivables under the Receivables Sale Agreements to be true sales
by the Sellers to the Trust that are absolute and irrevocable and that provide
the Trust with the full benefits of ownership of the Purchased Receivables, and
except as otherwise specifically provided for in SECTION 2.6 of this Master
Trust Agreement, neither the Sellers nor the Trustee intends the transactions
contemplated by the Receivables Sale Agreements to be characterized as loans
from the Trust to the Sellers.
(b) In the event that, notwithstanding the intent of the parties
expressed under the Receivables Sale Agreements, the transfers of the Purchased
Receivables are not true sales, then the Sellers intend that such transfers by
them to be a grant of a security interest in such property within the meaning of
the UCC. The Sellers therefore grant to the Trustee on behalf of the Trust and
the Investor Certificateholders, a first priority security interest in and to
all of the Sellers' right, title and interest in, to and under the Purchased
Receivables, the other Trust Assets, all funds collected or to be collected in
respect of the Purchased Receivables and all proceeds thereof for the purpose of
securing a loan in a principal amount equal to the Aggregate Certificate Balance
from time to time of the Investor Certificates issued hereunder and pursuant to
any applicable Supplement and the interest accrued at the related Certificate
Rate and to secure all of the Sellers' and TMM's obligations hereunder, under
any applicable Supplement and each other Transaction Document.
(c) In connection with such conveyance and grant of a security
interest, TMM agrees that, if it or any other Seller should at any time open an
executive office or offices in any state in the United States, (x) it will
promptly record and file, at its own expense, all financing statements
(including any continuation statements with respect to such financing statements
when applicable) in such jurisdiction as may be required to evidence the
security interest of the Trustee with respect to the Purchased Receivables
originated or to be originated by the Sellers, all funds collected or to be
collected in respect of the Purchased Receivables and all proceeds thereof, and
(y) it will deliver promptly a file-stamped copy of such financing statements or
continuation statements or other evidence of such filing to the Trustee. The
foregoing conveyance and grant to the Trust is made to the Trustee, on behalf of
the Trust, and each reference in this Master Trust Agreement to such conveyance
and grant shall be construed accordingly. The Trustee shall be under no
obligation whatsoever to file the financing statements or continuation
statements referred to herein, or to make any other filing under the UCC or
otherwise in connection with the foregoing conveyance and grant.
ARTICLE III
THE SELLERS
Section 3.1 REPRESENTATIONS AND WARRANTIES OF THE SELLERS.
32
(a) SELLERS. TMM represents on behalf of itself and each other
Seller (it being understood that any reference below in this ARTICLE III to
"Seller" when applicable to TMM shall also mean TMM in its role as Guarantor,
Sellers' Representative and to the extent applicable Servicer), and each other
Seller hereby represents and warrants as to itself to the Trust and the Trustee
as of the Document Closing Date, the Initial Closing Date and each subsequent
Closing Date (including the Third Closing Date) and, to the extent expressly set
forth herein, any other date:
(i) ORGANIZATION. Each Seller is a Mexican corporation duly
organized and validly existing as a SOCIEDAD ANONIMA DE CAPITAL VARIABLE
under the laws of Mexico. Each Seller has full corporate power, authority
and legal right to own its properties and conduct its business as such
properties are presently owned and such business is presently conducted,
and to execute, deliver and perform its obligations under the Transaction
Documents in all material respects.
(ii) WHOLLY OWNED SUBSIDIARY. Each Seller, other than TMM,
is a Wholly-Owned Subsidiary of TMM.
(iii) DUE QUALIFICATION. Each Seller is duly qualified to do
business (or is exempt from such requirement) in any jurisdiction where
such qualification is required in order to conduct its business as such
business is presently conducted, and has obtained all licenses and
approvals and made all filings required under the law of such jurisdiction
the absence of which is reasonably likely to result in a Material Adverse
Effect.
(iv) DUE AUTHORIZATION. The execution and delivery of the
Transaction Documents by each Seller and the consummation of the
transactions provided for in the Transaction Documents have been duly
authorized by each Seller by all necessary corporate and shareholder action
on its part.
(v) NO CONFLICT. The execution and delivery of the
Transaction Documents by each Seller, the performance of the transactions
contemplated by the Transaction Documents and the fulfillment of the terms
thereof will not conflict with or result in the breach of any of the
material terms and provisions of, or constitute (with or without notice or
lapse of time or both) a default under, (a) any of the Indentures, or (b)
except for any conflict, breach or default which is not reasonably likely
to result in a Material Adverse Effect, any other indenture, contract,
agreement, mortgage, deed of trust or other instrument to which each Seller
is a party or by which it or any of its properties is bound.
(vi) NO VIOLATION. The execution and delivery of the
Transaction Documents by each Seller, the performance of the transactions
contemplated by the Transaction Documents by each Seller and the
fulfillment of the terms hereof will not conflict with or violate its
certificate of incorporation, articles of association, by-laws, ACTA
CONSTITUTIVA, ESTATUTOS SOCIALES, or other organizational or governing
documents or any law, treaty, rule or regulation, or determination of an
arbitrator or Governmental Authority in each case applicable to or binding
upon such Seller or to which such Seller
33
is subject, except for any conflict or violation which is not reasonably
likely to result in a Material Adverse Effect.
(vii) NO PROCEEDINGS. There are no proceedings or
investigations pending or, to the best knowledge of each Seller, threatened
against it, before any court, regulatory body, administrative agency or
other tribunal or governmental instrumentality (a) asserting the invalidity
of the Transaction Documents, (b) seeking to prevent the issuance of the
Certificates or the consummation of any of the transactions contemplated by
the Transaction Documents or (c) seeking any determination or ruling that
is reasonably likely to result in a Material Adverse Effect.
(viii) ALL CONSENTS REQUIRED. All governmental authorizations,
consents, orders or other actions of any Person or of any governmental body
or official required in connection with the execution and delivery of the
Transaction Documents (other than for Transaction Documents to be delivered
on the Initial Closing Date for which this representation is first given as
of the Initial Closing Date), the performance of the transactions
contemplated by the Transaction Documents (other than consents or
authorizations required to be obtained in connection with (A) the Newco
Transfer and (B) the exercise of the Call Option or Port Option, as defined
in the Option Agreement or Port Option Agreement and as set forth in the
Option Agreement or Port Option Agreement, each as applicable), and the
fulfillment of the terms thereof by each Seller, have been obtained except
to the extent that the failure to obtain the same is not reasonably likely
to result in a Material Adverse Effect.
(ix) ACQUISITION OF EQUITY SECURITIES. No proceeds of the
transfer of Purchased Receivables by each Seller to the Trust will be used
by such Seller to acquire any equity security of a class which is
registered under the Securities Act or pursuant to Section 12 of the
Securities Exchange Act of 1934, as amended.
(x) MARGIN STOCK. No Seller is engaged principally, or as
one of its important activities, in the business of extending credit for
the purpose of purchasing or carrying Margin Stock. No proceeds of the
transfer of Purchased Receivables to the Trust will be used for the purpose
of, or be made available by such Seller in any manner to any other Person
to enable or assist such Person in, purchasing or carrying Margin Stock.
(xi) ACCURATE REPORTS. No Periodic Report (if prepared by any
Seller, or to the extent that information contained therein was supplied by
such Seller or by any Person, including TMM, on its behalf), information,
exhibit, financial statement, document, book, record or report furnished or
to be furnished by any Seller in connection with the Transaction Documents
was or will be inaccurate in any material respect as of the date it was or
will be dated or as of the date so furnished or contained or will contain
any material misstatement of fact or omitted or will omit to state a
material fact or any fact necessary to make the statements contained
therein in light of the circumstances in which they were made not
materially misleading.
34
(xii) NO IMMUNITY. Under the laws of Mexico none of the
Sellers nor any of their property has any immunity from jurisdiction of any
court or from any legal process (whether through service or notice,
attachment prior to judgment, attachment in aid of execution, execution or
otherwise).
(xiii) NO TAXES. With respect to non-residents of Mexico who
are Eligible Owners, under current Mexican law, there is no tax on income
or capital gains, and there is no withholding tax, net wealth tax, gift,
estate or inheritance tax, registration tax, custom or stamp duty or other
issuance or transfer tax or duty or other similar taxes or duties payable
in Mexico or to any taxing authority thereof or therein in connection with
(i) the authorization, issuance, sale and delivery of the Certificates,
(ii) any payment made by any Obligor or the Servicer, including Collections
or (iii) payments of the principal of or any premium, interest or other
amounts on the Certificates by the Sellers, the Trustee or the Trust to a
Certificateholder, other than the Mexican tax currently levied at the rate
of (y) 4.9% for Eligible Owners which are Hacienda Banks, and (z) 15% for
any other Eligible Owners on the payments of interests on the Certificates.
For purposes of Mexican tax law, neither the Trust nor the Trustee's
interest therein will be treated as a separate entity subject to taxation.
(xiv) TREASURY REGULATIONS. (A) Neither the sale of the
Investor Certificates nor any Seller's use of the proceeds thereof as
contemplated by the Transaction Documents violate any of the following
regulations of the United States Treasury Department (31 C.F.R. Subtitle B,
Chapter V, as amended): the Foreign Assets Control Regulations, the
Transaction Control Regulations, the Cuban Assets Control Regulations, the
Iranian Transactions Regulations, the Libyan Sanctions Regulations or the
Iraqi Sanctions Regulations and (B) no Seller, nor any Affiliate of any
Seller is (i) a country, territory, organization, person or entity named on
the U.S. Treasury Department's Office of Foreign Assets Control ("OFAC")
list, (ii) a person or entity that resides or has a place of business in a
country or territory named on such lists or which is designated as a
Non-Cooperative Jurisdiction by the Financial Action Task Force on Money
Laundering, or, to the best knowledge of each Seller, whose funds are
transferred from or through such a jurisdiction, (iii) a "Foreign Shell
Bank" within the meaning of the Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism
Act of 2001 (the "USA PATRIOT ACT"), i.e. a foreign bank that does not have
physical presence in any country and that is not affiliated with a bank
that has a physical presence and an acceptable level of regulation or
supervision or (iv) a person or entity that resides in, or is organized
under the laws of, a jurisdiction designated by the Secretary of Treasury
under Section 311 or 312 of the USA PATRIOT ACT, as warranting special
measures due to money laundering concerns.
(xv) ERISA.
(A) Each Seller represents and warrants that it is not a
"party-in-interest", as such term is defined in Section 3(14) of
ERISA, or a "disqualified person", as such term is defined in Section
4975(e)(2) of the Internal Revenue Code with respect to any "plan"
within the meaning of Section 4975(e)(1) of the Code or any "employee
benefit plan" within the meaning of Section 3(3) of
35
ERISA (each, a "PLAN") except with respect to any plan sponsored,
maintained or contributed to by any Seller with respect to its
employees.
(B) None of the Sellers is a member of a "controlled group"
of corporations or other entities (as such term is defined in Section
414(b) or (c) of the Internal Revenue Code) which also has as a member
any United States corporation or other entity sponsoring an employee
benefit plan (within the meaning of Section 3(3) of ERISA).
(xvi) REGULATORY STATUS. No Seller is an "investment company"
or an "affiliated person" of, or "promoter" or "principal underwriter" for,
an "investment company" required to be registered as such within the
meaning of the Investment Company Act and the Trust is neither (i)
registered under the Investment Company Act nor (ii) a common trust fund or
similar fund excluded from the definition of investment company by virtue
of section 3(c)(3) of the Investment Company Act. The consummation of the
transactions contemplated hereby will not violate any provision of such Act
or any rule, regulation or order of the Securities and Exchange Commission
thereunder. No Seller is subject to regulation as a "Holding Company," an
"affiliate" of a "Holding Company," or a "Subsidiary Company" of a "Holding
Company", within the meaning of the Public Utility Holding Company Act of
1935, as amended. Neither the Trust nor the Trustee is required, solely as
a result of the transaction contemplated by the Transaction Documents, to
register under the Investment Company Act or the Trust Indenture Act.
(xvii) COMPLIANCE WITH ALL REQUIREMENTS OF LAW. Each Seller is
in compliance in all material respects with all Requirements of Law
applicable to such Seller, except where the failure to be in compliance is
not reasonably likely to result in a Material Adverse Effect.
(xviii) OBLIGATIONS PARI PASSU WITH INDEBTEDNESS. Each Seller's
obligations under the Transaction Documents constitute direct, senior,
unsecured, unsubordinated obligations of such Seller and rank at least PARI
PASSU in order of payment and in all other respects with all direct,
senior, unsecured, unsubordinated indebtedness of such Seller, except for
such priorities and preferences as may be imposed by statute or regulation
for taxes, wages or other statutorily or regulatorily preferred
obligations.
(xix) LOCATION OF ASSETS AND MAJOR EXECUTIVE OFFICE. Each
Seller's major executive office is as set forth in SECTION 10.5(a). No
Seller has an office or place of business in the United States. No Seller
has any assets in the United States, other than the stock of its U.S.
subsidiaries, if any.
(xx) NO FRAUDULENT CONVEYANCE. None of the Sellers is
entering into the Transaction Documents with the actual intent to hinder,
delay or defraud its current or future creditors, nor does any Seller
intend to or believe (i) that it will incur, as a result of entering into
any Transaction Document to which it is or will be a party, debts beyond
its ability to repay and (ii) that the execution of the Transaction
Documents and the conveyance of the Purchased Receivables to the Trust, for
the benefit of the Investor
36
Certificateholders, is a transaction that may be conceived as fraudulent in
regards to creditors, as such term is used by the Mexican Bankruptcy Law or
any other applicable law or regulation protecting creditors rights
generally.
(xxi) SOLVENCY. Each Seller is, and immediately after giving
effect to the transactions occurring on each Closing Date will be, Solvent.
(xxii) INFORMATION SUPPLIED TO INVESTOR CERTIFICATEHOLDERS. The
information furnished by or on behalf of TMM as Seller and as Sellers'
Representative on behalf of the other Sellers and by each of the other
Sellers to the Investor Certificateholders, the Trustee or their respective
counsel or representatives in connection with any of the Transaction
Documents or any transaction contemplated thereby does not, when taken as a
whole, contain any untrue statement of material fact or omit to state any
material fact necessary to make the statements herein or therein, in light
of the circumstances under which they were made, not misleading in any
material respect. There is no fact known to TMM or any other Seller that
could reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect that has not been disclosed herein, in the other
Transaction Documents, or in a financial statement or other writing
furnished to the Investor Certificateholders or the Trustee prior to the
Document Closing Date.
(xxiii) NO LIENS. As of the Third Closing Date and after giving
effect to the transactions to take place on such date, the Purchased
Receivables are free from any and all liens, encumbrances, preferential
rights or other restrictions or limitations or similar liabilities, except
for such liens, encumbrances, preferential rights or other restrictions
arising from any Transaction Document with respect to the Purchased
Receivables unless otherwise disclosed by TMM on SCHEDULE 7.
(xxiv) COLLECTION STATUS. Except as may be indicated on
SCHEDULE 8, the Purchased Receivables are current in their payment and are
not past due.
(xxv) NO GENERAL SOLICITATION; OFFERS. Neither the Trust, TMM,
any of the other Sellers, nor any of their Affiliates, nor any person
(including, without limitation, any broker) acting on its or on their
behalf, has engaged in any form of general solicitation or general
advertising (within the meaning of Regulation D under the Securities Act)
in connection with the offer or sale of the Series 2002-A Certificates and
no offers or sales of such Series 2002-A Certificates were made in any
state other than the States of
New York, Delaware or New Jersey. Without
limiting the foregoing, none of Citibank or any of its affiliates has acted
as a "Broker-Dealer" or "Underwriter" (as those terms are defined in the
Securities Act) or as an agent, arranger or in any other similar capacity
to any of, the Trust, Trustee, any of the Sellers, the Series 2002-A
Certificateholders, the Series 2002-A Purchaser or any of their respective
affiliates in connection with the offer or sale of the Series 2002-A
Certificates.
(xxvi) NO INTEGRATED OFFERING. Neither the Trust, TMM, any of
the other Sellers, nor any of their Affiliates, nor any person (including,
without limitation, any broker) acting on its or on their behalf has,
directly or indirectly, made any offers or sales
37
of any security or solicited any offers to buy any security, under
circumstances that would require registration of any of the securities of
such parties under the Securities Act or cause this offering of the Series
2002-A Certificates to be integrated with prior offerings by the Trust,
TMM, any of the other Sellers, or any of their Affiliates, for purposes of
the Securities Act or any applicable stockholder approval provisions,
including, without limitation, under the rules and regulations of any
exchange or automated quotation system on which any of the securities of
the Trust, TMM, any of the other Sellers, or any of their Affiliates, are
listed or designated, nor will the Trust, TMM, any of the other Sellers,
nor any of their Affiliates take any action or steps that would require
registration of any of the Series 2002-A Certificates under the Securities
Act or cause the offering of the Series 2002-A Certificates to be
integrated with other offerings other than the offering and sale of the
Series 2001-A Certificates.
(b) THE TRANSACTION DOCUMENTS. TMM represents on behalf of itself
and each other Seller (it being understood that any reference below in this
ARTICLE III to "Seller" when applicable to TMM shall also mean TMM in its role
as Guarantor, Sellers' Representative and, to the extent applicable, Servicer),
and each other Seller hereby represents and warrants, to the Trust and the
Trustee that, as of the Document Closing Date, the Initial Closing Date (unless
expressly stated to be only as of the Document Closing Date) and each subsequent
Closing Date, including the Third Closing Date:
(i) Each of (a) the Transaction Documents has been duly
executed and delivered and constitutes the legal, valid and binding
obligations of TMM, each other Seller, Guarantor or TMM Multimodal to the
extent that any such Person is a party thereto, enforceable against such
Person in accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, CONCURSO MERCANTIL, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
affecting the enforcement of creditors' rights in general, or as such
enforceability may be limited by general principles of equity (whether
considered in a suit at law or in equity).
(ii) Under Mexican law, (a) the transfer of the Purchased
Receivables and the other Trust Assets from each Seller to the Trust
pursuant to each of the Receivables Sale Agreements constituted a sale
effective as of the Initial Closing Date, except for the "2002 Purchased
Receivables" (as such term is defined in the First Amendment to PEMEX
Receivables Sale Agreement) which constitute a sale effective as of the
Second Closing Date, and (b) following such transfer in accordance with the
terms of the Receivables Sale Agreements and this Master Trust Agreement,
the Purchased Receivables, any monies outstanding in the Sweep Account, the
Collection Account, the Peso Denominated Account, the Collection
Subaccounts and the other Trust Assets will not constitute property or
rights of any Seller or its Subsidiaries or Affiliates, but instead will be
held by the Trust free and clear of any Lien of any Person except for (x)
the interests of the Trustee, the Certificateholders and any Holder of a
Subordinated Certificate, and (y) the interest of the Holders of the
Sellers' Certificate.
(iii) Under Mexican law, upon the Initial Closing Date, the
Trust became the owner of the Purchased Receivables other than the "2002
Purchased Receivables" (as defined in the First Amendment to PEMEX
Receivables Sale
38
Agreement) of which the Trust became the owner on the Second Closing Date,
any monies outstanding in the Sweep Account, the Collection Account, the
Collection Subaccount, the Peso Denominated Account and the other Trust
Assets. Under New York law, the Trust has either an ownership interest or a
first priority perfected security interest in the Purchased Receivables,
any monies outstanding in the Sweep Account, the Collection Account, the
Collection Subaccounts, the Peso Denominated Account and the other Trust
Assets.
(iv) No action, including, but not limited to, any other
recording, filing, registration, giving notice or other similar action,
other than (w) the execution and delivery of this Master Trust Agreement
and the Receivables Sale Agreements signed or ratified before a public
notary or public broker, which signature or ratification has occurred prior
to or concurrently herewith or, prior to or concurrently with the Initial
Closing Date, (x) in the case of the Receivables Sale Agreements, an
executed Acknowledgment from each Obligor, (y) in the case of the
Receivables Sale Agreements and the Master Trust Agreement, the filing of
UCC-1 financing statements in the proper jurisdiction naming each Seller as
debtor and the Trustee, for the benefit of each Investor Certificateholder,
as secured party, or (z) in lieu of (x), a notification to each Obligor
that has not executed an Acknowledgment before two (2) witnesses of the
transfer of the Purchased Receivables transferred by each such Obligor, is
necessary to perfect the Trust's rights in and to the Purchased Receivables
under New York and Mexican law.
(v) All steps necessary or advisable to ensure the legality,
validity, enforceability or admissibility in evidence of the Transaction
Documents (other than the preparation of a Spanish translation of such
document by a court approved translator in the event any legal proceedings
in connection with or arising from such documents are brought in any court
of Mexico and the approval of such translation by such court) in Mexico
were taken prior to the Initial Closing Date, or as to documents required
for the Third Closing Date will be taken on or before the Third Closing
Date, and it is not necessary that such documents or any other document be
filed or recorded with any court or other authority in Mexico or that any
stamp or similar tax be paid on or in respect of such documents or any
other document called for hereunder or thereunder.
(vi) PORT COMPANY DIVIDEND ACCOUNT RECEIVABLE. As of the
Third Closing Date, the Port Company has accounts receivables (the "PORT
COMPANY DIVIDEND ACCOUNT RECEIVABLE") owing to it from TMM and SSA in an
aggregate amount equal to U.S.$54,907,000 incurred in connection with cash
payments made by the Port Company to TMM and SSA as advances against future
dividends of the Port Company to those entities.
(c) SURVIVAL. The representations and warranties set forth in this
SECTION 3.1 shall survive the transfer and assignment of the Purchased
Receivables to the Trust.
Section 3.2 COVENANTS OF THE SELLERS. TMM represents on behalf of itself
and each other Seller (it being understood that any reference in this SECTION
3.2 to TMM shall mean TMM in its role as Seller, Guarantor, Sellers'
Representative and, to the extent applicable, Servicer) and each other Seller
hereby covenants that:
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(a) COMPLIANCE WITH REQUIREMENTS OF LAW. TMM agrees to comply,
and to cause each of its Restricted Subsidiaries to comply, and each other
Seller agrees to comply, and to cause each of its consolidated Subsidiaries to
comply, in all respects with all Requirements of Law applicable to it or any
such Subsidiary, the failure to comply with which is reasonably likely to result
in a Material Adverse Effect.
(b) PRESERVATION OF CORPORATE EXISTENCE. TMM shall, and shall
cause each of its Restricted Subsidiaries to, and each other Seller shall, and
shall cause each of its consolidated Subsidiaries to, preserve and maintain its
corporate existence, rights, franchises and privileges in the jurisdiction of
its incorporation, and qualify and remain qualified in good standing as a
foreign corporation in each jurisdiction where the failure to preserve and
maintain such existence, rights, franchises, privileges and qualifications is
reasonably likely to result in a Material Adverse Effect and except as permitted
under SECTION 3.3.
(c) PAYMENT OF TAXES, ETC. Each Seller will pay or discharge or
cause to be paid or discharged, before the same shall become delinquent, all
taxes, assessments and governmental charges (including all amounts payable to
the Social Security Institute, the Workers' Housing Fund and the Retirement Fund
System of Mexico) levied or imposed upon such Seller or any Subsidiary or upon
the income, profits or property of such Seller or any subsidiary; PROVIDED,
HOWEVER, that each Seller shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment or charge whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings and, if necessary, after having (i) created any necessary reserves
or (ii) made any appropriate deposit with the relevant authority.
(d) MAINTENANCE OF INSURANCE. TMM shall, and shall cause each of
its Restricted Subsidiaries to, and each other Seller shall, and shall cause
each of its consolidated Subsidiaries to, maintain insurance with responsible
insurance companies or associations in such amounts and covering such risks as
is usually carried by companies engaged in similar businesses and owning similar
properties in the same general areas in which such Seller or any such subsidiary
operates, except where the failure to do so is not reasonably likely to result
in a Material Adverse Effect.
(e) COMPLIANCE WITH ENVIRONMENTAL LAWS. Except when the failure to
do so is not reasonably likely to result in a Material Adverse Effect, TMM
shall, and shall cause each of its Restricted Subsidiaries to, and each other
Seller shall, and shall cause each of its consolidated Subsidiaries to, (i)
comply, and use its reasonable best efforts to cause all lessees and other
Persons occupying its properties to comply, in all material respects, with all
Environmental Laws and Environmental Permits applicable to its operations and
properties, (ii) obtain and renew all Environmental Permits necessary for its
operations and properties and (iii) conduct any reasonable investigation, study,
sampling and testing, and undertake any reasonable cleanup, removal, remedial or
other action, necessary to remove and clean up all Hazardous Materials from any
of its properties, in accordance with the requirements of all Environmental
Laws; PROVIDED, HOWEVER, that neither such Seller nor any such subsidiary shall
be required to undertake any such cleanup, removal, remedial or other action to
the extent that its obligation to do so is being contested in good faith and by
proper proceedings and necessary appropriate reserves are being maintained with
respect to such circumstances.
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(f) MAINTENANCE OF PROPERTIES, ETC. Except where the failure to do
so is not reasonably likely to result in a Material Adverse Effect, TMM shall,
and shall cause each of its Restricted Subsidiaries to, and each other Seller
shall, and shall cause each of its consolidated Subsidiaries to, maintain and
preserve all of its properties that are material to the conduct of its business
in good working order and condition, ordinary wear and tear excepted.
(g) COMPLIANCE WITH TERMS OF LEASEHOLDS. Except where the failure
to do so is not reasonably likely to result in a Material Adverse Effect, TMM
shall, and shall cause each of its Restricted Subsidiaries to, and each other
Seller shall, and shall cause each of its consolidated Subsidiaries to, make all
payments and otherwise perform in all material respects all obligations in
respect of all material leases of real, personal or admiralty property and, to
the extent material to the business of TMM or such other Seller or any such
subsidiary, keep such leases in full force and effect, and not allow such leases
to lapse or be terminated or rights to renew such leases to be forfeited or
canceled.
(h) TRANSACTIONS WITH AFFILIATES. TMM shall, and shall cause each
of its Restricted Subsidiaries to, and each other Seller shall, and shall cause
each of its consolidated Subsidiaries to, in all material respects, conduct all
transactions otherwise permitted under the Transaction Documents with any of its
subsidiaries and Affiliates (i) in the ordinary course of business in accordance
with past practices or (ii) on terms that are fair and reasonable and no less
favorable to TMM or any such Restricted Subsidiary, or such other Seller or any
such consolidated Subsidiary, than it would obtain in a comparable arm's-length
transaction with a Person not an Affiliate.
(i) AUDITS. (i) At any time and from time to time during regular
business hours during a Rapid Amortization Period (and upon five (5) Business
Days' prior notice if not during a Rapid Amortization Period), TMM and each
Seller shall permit the Trustee or its agents or representatives (A) to examine
and make copies of and abstracts from all books, records and documents
(including, without limitation, computer tapes and disks) in possession or under
the control of TMM or such Seller relating to the Purchased Receivables,
including, without limitation, the related shipping orders, bills of lading and
other agreements, and (B) to visit its offices and properties for the purpose of
examining such materials described in CLAUSE (i)(A), and to discuss matters
relating to the Purchased Receivables or the performance of its obligations
hereunder with any officers of TMM or such Seller, and to the extent the Trustee
reasonably deems necessary, reasonable access, with prior notice to TMM, to
discuss such matters with those employees having knowledge of such matters, and
(ii) without limiting the foregoing CLAUSE (i), from time to time on request of
the Trustee (given not more than once in each calendar year so long as no Rapid
Amortization Event or Unmatured Rapid Amortization Event shall have occurred and
be continuing), permit certified public accountants or other auditors acceptable
to the Trustee to conduct, at TMM's or such Seller's expense, a review of TMM's
or such Seller's books and records with respect to the Purchased Receivables or
the books and records of the Port Company with respect to determining the Port
Company Net Worth or any cash payment made to TMM or SSA as advance against a
dividend of the Port Company and any increase or decrease in the amount of the
Port Company Dividend Account.
(j) NO AMENDMENTS TO ORGANIZATIONAL DOCUMENTS. TMM and each Seller
shall not, and shall not permit its subsidiaries to, amend, supplement or
terminate any of its
41
certificate of incorporation, articles of association, by-laws, ACTA
CONSTITUTIVA, ESTATUTOS SOCIALES, or other organizational or governing documents
if such amendment, supplement or termination is reasonably likely to result in a
Material Adverse Effect.
(k) QUARTERLY AND ANNUAL FINANCIAL STATEMENTS.
(i) As soon as available and in any event within sixty (60)
days after the end of each quarter of each fiscal year of TMM and each
other Seller, TMM and each other Seller (to the extent any such Seller
provides or makes available to any other Person any of the following
described materials) shall furnish to the Trustee (x) copies of their
unaudited balance sheet as of the end of such quarter, together with
unaudited statements of income and changes in financial position for such
quarter and the portion of the fiscal year through such quarter, prepared
in accordance with IAS and certified by the chief financial officer,
treasurer or chief accounting officer of TMM or such other Seller (such
officer being herein called the "FINANCIAL OFFICER"), and (y) a letter from
the Financial Officer certifying that to the best knowledge of the
Financial Officer, neither a Rapid Amortization Event nor an Unmatured
Rapid Amortization Event has occurred and is continuing (or, if having
occurred and continuing, a statement as to the particulars of such event
and any attempts to remedy such event).
(ii) As soon as available and in any event within 120 days
after the end of each fiscal year of TMM, TMM shall furnish to the Trustee
a copy of the balance sheet of TMM as of the end of such fiscal year,
together with the related statements of income, stockholders' equity and
changes in financial position for each fiscal year, each prepared in
accordance with IAS. TMM's balance sheet and such related statements shall
be certified by a firm of "Big 4" independent certified public accountants
(i.e. Deloitte & Touche, Ernst & Young, PricewaterhouseCoopers or KPMG Peat
Marwick) or its Mexican affiliate, and such certification shall (x) state
that the examination by such accountants in connection with such financial
statements has been made in accordance with IAS and, accordingly, included
such tests of the accounting records and such other auditing procedures as
were considered necessary in the circumstances, (y) include the opinion of
such accountants that such financial statements have been prepared in
accordance with IAS in a manner consistent with prior fiscal periods,
except as otherwise specified in such opinion, and (z) state that to the
best knowledge of the accountants, neither a Rapid Amortization Event nor
an Unmatured Rapid Amortization Event has occurred and is continuing (or,
if occurred and continuing, a statement as to the particulars of such event
and any attempt to remedy such event).
(l) NOTICE OF BREACH. Promptly following the occurrence of any
Rapid Amortization Event or Unmatured Rapid Amortization Event that any Seller
has actual knowledge of, Sellers' Representative shall give written notice of
such occurrence to the Trustee.
(m) CONTINUED PERFORMANCE AND COMPLIANCE WITH THE PURCHASED
RECEIVABLES AND SALES CONTRACTS. Each Seller shall, and shall cause its
subsidiaries to, timely and fully perform and comply with all material
provisions, covenants and other promises required to be observed by it under any
contracts related to the Purchased Receivables, including, without limitation,
each Obligor Agreement, and shall use its best efforts to maintain such
contracts in
42
full force and effect, and not allow such contracts to lapse or be terminated or
transferred, or rights to renew such contracts to be forfeited or canceled,
except, in either case, where failure to do so is not reasonably likely to
result in a Material Adverse Effect.
(n) NOTIFICATION TO OBLIGORS. Each Seller shall notify each
Obligor of the transfer of the applicable Purchased Receivables transferred by
it to the Trust and of the requirement to remit payments to the Sweep Account or
to the extent such Receivables are payable in Pesos, the Peso Denominated
Account and with respect to the Purchased Receivables:
(i) payable in Pesos, to the Peso Denominated Account by (i)
requiring such Obligor to execute an Acknowledgment, and (ii) placing a
stamp on each related invoice stating that, "This receivable has been
assigned to the Logistics Trust 2000-A. Please remit the amount set forth
on this invoice to Account No. ▇▇▇▇▇▇▇▇▇▇▇ at Scotiabank Inverlat, S.A.,
Branch 057 Perisur, Beneficiary: Bank of New York/Logistics Trust 2000-A,
Ref "Grupo TMM, S.A. (successor by Merger to Transportacion Maritima
Mexicana, S.A. de C.V.). Therefore, your payment obligations hereunder
shall be deemed to be satisfied only by paying to such account" or by such
other means which are equally effective, in the discretion of the Trustee,
to notify such Obligor of the transfer of the Purchased Receivables to the
Trust; and
(ii) payable in Dollars, to the Sweep Account by (i)
requiring such Obligor to execute an Acknowledgment, and (ii) placing a
stamp on each related invoice stating that, "This receivable has been
assigned to the Logistics Trust 2000-A. Please remit the amount set forth
on this invoice to Account No. ▇▇▇▇▇▇▇▇ at Citibank, N.A., New York, ABA #
▇▇▇▇▇▇▇▇▇, Beneficiary: Bank of New York/Logistics Trust 2000-A, Ref "Grupo
TMM, S.A. (successor by Merger to Transportacion Maritima Mexicana, S.A. de
C.V.). Therefore, your payment obligations hereunder shall be deemed to be
satisfied only by paying to such account" or by such other means which are
equally effective, in the discretion of the Trustee, to notify such Obligor
of the transfer of the Purchased Receivables to the Trust.
(o) COLLECTIONS RECEIVED BY SELLERS. The Sellers shall promptly
forward to the Trustee, for deposit in the Collection Account or Peso
Denominated Account, as applicable, any payment by an Obligor sent directly to
any of them.
(p) NO AMENDMENTS TO PURCHASED RECEIVABLES OR OBLIGOR AGREEMENTS.
Except as provided on SCHEDULE 2, each Seller agrees not to cancel or terminate
any Purchased Receivable or Obligor Agreement or consent to or accept any
cancellation or termination thereof, or amend, modify or change in any manner
any term or condition of any Purchased Receivable or Obligor Agreement or give
any consent, waiver or approval thereunder, waive any default under or any
breach of any term or condition of any Purchased Receivable or Obligor
Agreement, agree in any manner to any other amendment, modification or change of
any term or condition of any Purchased Receivable or Obligor Agreement or take
any other action in connection with any Purchased Receivable or Obligor
Agreement that in any such case would impair in any material respect the value
of the Purchased Receivables or that would impair (with respect to any Obligor
Agreement, in any material respect) the rights or interests of the Trust or the
Investor Certificateholders in the Purchased Receivables.
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(q) NO TERMINATION OF TRANSACTION DOCUMENTS. Each Seller agrees
not to take any action to cancel or terminate any of the Transaction Documents
other than in accordance with the provisions thereof.
(r) NO TERMINATION OF SERVICES BUSINESS. Each Seller shall not,
and shall not permit any Subsidiary to, take any action to terminate any portion
of its Services business relating to the Purchased Receivables or Obligor
Agreements or change any services being provided to the Obligors if any such
change is reasonably likely to result in a Material Adverse Effect.
(s) NOTICES OF ASSETS IN THE UNITED STATES. Each Seller, and with
respect to TMM Multimodal or Newco, TMM shall notify the Trustee if any Seller,
TMM Multimodal or Newco changes its major executive office, establishes any
place of business in the United States or acquires or relocates to the United
States any assets, other than the stock of its U.S. subsidiaries, and will
cooperate with the Trustee in connection with any UCC or other security filings
reasonably requested by it.
(t) CHANGE IN CREDIT AND COLLECTION POLICIES. Each Seller shall
not make and shall not permit any of its subsidiaries to make any material
change in the administration of the Purchased Receivables, except in accordance
with the TMM Credit and Collection Policies then in effect and will not amend or
consent to the amendment of the TMM Credit and Collection Policies except as set
forth on SCHEDULE 2 hereto.
(u) FURTHER ASSURANCES. Naviera del ▇▇▇▇▇▇▇▇, ▇.▇. de C.V., as
Seller under the PEMEX Receivables Sale Agreement and as a party to any other
PEMEX contract, and any other Seller which becomes a Seller of PEMEX
Receivables, shall execute and deliver all other agreements and/or documents
from time to time, at the discretion of the Cumulative Required Investor
Certificateholders, to convey, sell and transfer all Purchased Receivables to
which such Seller has rights under any Obligor Agreement to which PEMEX is the
Customer Obligor, and to minimize any set-off rights that PEMEX has under such
Obligor Agreement.
(v) KEEPING OF RECORDS AND BOOKS OF ACCOUNT. Each Seller shall
keep adequate records and books of account reflecting all financial transactions
in conformity with IAS and in material conformity with all applicable
requirements of any Governmental Authority having regulatory jurisdiction over
the Sellers or any of their Subsidiaries.
(w) USE OF PROCEEDS. TMM shall, and shall cause each of its
Restricted Subsidiaries to, and each other Seller shall, and shall cause each of
its consolidated Subsidiaries to, use the proceeds from the sale of the
Purchased Receivables for general corporate purposes and debt repayment only and
with respect to the proceeds from the issuance of any additional Certificates or
Series as permitted by SECTION 5.9(b) hereof, subject to such further
restrictions; PROVIDED, THAT, the proceeds from the sale of the Additional
Series 2001-A Certificates shall be used solely to make the Euro CP Facility
Payment, fund the Series 2001-A Reserve Account as referenced in Section
2.4(a)(v) of the Series 2001-A Supplement and to pay transaction expenses
related to the transactions consummated on the Third Closing Date.
44
(x) DELIVERY OF INVOICES. TMM and each other Seller shall deliver
to the Trustee, concurrently when delivered to any Customer Obligor, a copy of
each invoice for Services performed by such Seller for such Customer Obligor
under the applicable Committed Obligor Agreement.
(y) INSOLVENCY OF SELLERS, TMM MULTIMODAL OR NEWCO. TMM shall not
and shall cause each of its Restricted Subsidiaries not to, and each other
Seller shall not, and shall cause each of its respective consolidated
Subsidiaries not to, take any action (with respect to clauses (i) or (ii)
hereafter in such Person's capacity as a creditor) (i) which would cause any
Seller, TMM Multimodal or, after its formation, Newco to suffer the appointment
of a conservator, receiver, VISITADOR, CONCILIADOR, SINDICO or liquidator in any
bankruptcy, insolvency, CONCURSO MERCANTIL, readjustment or debt, marshalling of
assets and liabilities or similar proceedings or relating to all of
substantially all of its property; or a decree or order of a court or agency or
supervisory authority having jurisdiction in the premises for the appointment of
a conservator, VISITADOR, CONCILIADOR, SINDICO or receiver or liquidator in any
bankruptcy, insolvency, CONCURSO MERCANTIL, readjustment of debt, marshalling of
assets and liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs or (ii) relating to the preparation of any filing to
obtain a court resolution declaring the CONCURSO MERCANTIL of TMM, its
Restricted Subsidiaries, any Seller or any of their consolidated Subsidiaries,
or seeking, in any bankruptcy, insolvency, CONCURSO MERCANTIL, readjustment of
debt, marshalling of assets and liabilities or similar proceedings, the
appointment of a trustee, receiver, conservator, VISITADOR, CONCILIADOR, SINDICO
or liquidator or otherwise take any action in support of any request by any
Person for such appointment of a trustee, receiver, conservator or liquidator
with respect to any Seller, TMM Multimodal or, after its formation, Newco or any
of their respective assets or (iii) prior to the Trust Termination Date, to (x)
enforce any obligations (including without limitation obligations to make
payments with respect to intercompany debt, if any) owing by any Seller to TMM
or by any of their respective Subsidiaries or by TMM Multimodal or, after its
formation, Newco to TMM or any Seller or any of their Subsidiaries, (y) demand
any payment from any Seller, TMM Multimodal or, after its formation, Newco (1)
through any judicial or arbitration body, (2) through a NOTARIO or CORREDOR
PUBLICO, or (3) before two witnesses or (z) cause TMM Multimodal to be in
default under the GM Agreement (as such term is defined in Schedule 5.10 of the
Option Agreement).
(z) DELIVERIES PURSUANT TO THE OPTION AGREEMENT. (i) TMM shall
provide and shall cause TMM Multimodal to provide to the Trustee copies of all
notices delivered pursuant to the terms of the GM Agreement (as such term is
defined in Schedule 5.10 of the Option Agreement), within one (1) Business Day
of TMM's or TMM Multimodal's receipt of such notice and (ii) TMM shall provide
and shall cause Newco to provide to the Trustee copies of all notices delivered
in connection with the Port Company Agreements, within one (1) Business Day of
TMM's or Newco's receipt of such notice.
(aa) LIMITATION ON LIENS. TMM shall not and shall not permit any of
its Restricted Subsidiaries to, and each other Seller shall not, and shall not
permit any of its consolidated Subsidiaries to, create, incur, assume or suffer
to exist any Lien upon or with respect to any of its revenues and assets
utilized in the normal course of its business (including, without limitation,
any Lien on (x) the Purchased Receivables other than the Liens created by a
Transaction Document or (y) the provision of Services related to the sales that
give rise to the
45
Purchased Receivables) with the exception of the following (which shall not
apply to the Purchased Receivables):
(i) Liens outstanding on the Document Closing Date;
(ii) Liens for taxes not yet delinquent or which are being
contested in good faith by appropriate proceedings; PROVIDED that adequate
reserves with respect thereto are maintained on the books of TMM and its
Restricted Subsidiaries or such other Seller or its consolidated
Subsidiaries, as the case may be, in conformity with IAS;
(iii) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen, repairmen or other like Liens arising
in the ordinary course of business and not discharged for a period of not
more than 90 days after notice thereof or which are being contested in good
faith by appropriate proceedings;
(iv) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security legislation;
(v) easements, rights-of-way, restrictions, minor defects or
irregularities in title and other similar encumbrances incurred in the
ordinary course of business which, in the aggregate, are not substantial in
amount and which do not in any case materially detract from the value of
the property subject thereto or materially interfere with the ordinary
conduct of the business of TMM or such Restricted Subsidiary or such other
Seller or such consolidated Subsidiary;
(vi) any attachment or judgment Lien, unless the judgment it
secures shall not, within 60 days after the entry thereof, have been
discharged or execution thereof stayed pending appeal, or shall not have
been discharged within 60 days after the expiration of any such stay;
(vii) Liens securing Acquired Indebtedness, PROVIDED that such
Liens attach solely to the assets of the acquired entity and do not extend
to or cover any other assets of TMM, any of its Restricted Subsidiaries or
such other Seller or any of its consolidated Subsidiaries;
(viii) Liens to secure all or any part of the purchase price of
property acquired or constructed (including construction of improvements or
additions to improvements on existing property), or to secure debt incurred
solely to finance the acquisition or construction (including construction
of improvements or additions to improvements on existing property) of such
property ("PURCHASE MONEY LIENS"), by TMM or such Restricted Subsidiary or
such other Seller or any of its consolidated Subsidiaries, PROVIDED that
such Purchase Money Liens (A) attach solely to the property which is the
subject of the transaction giving rise to such obligation and receivables
relating to such property and do not extend to or cover any other property
and (B) attach within 180 days of the date of the acquisition or completion
of construction of such property;
46
(ix) pledges by TMM or any Restricted Subsidiary of
receivables relating to property to the seller or lessor of the property
which is the subject of (A) a permitted Purchase Money Lien or (B) any
capitalized or operating leases, in an aggregate amount for all such leases
not to exceed U.S.$50,000,000 at any one time outstanding;
(x) any interest or title of a lessor pursuant to a lease
constituting a Capitalized Lease Liability;
(xi) Liens on any assets acquired by TMM or any of its
Restricted Subsidiaries after the Document Closing Date, which Liens were
in existence on or prior to the acquisition of such assets (to the extent
that such Liens were not created in contemplation of such acquisition),
PROVIDED that such Liens are limited to the asset so acquired and the
proceeds thereof;
(xii) Liens securing Indebtedness owed to TMM or any of its
Restricted Subsidiaries by any of its Restricted Subsidiaries;
(xiii) additional Liens ("ADDITIONAL LIENS") securing
Indebtedness outstanding from time to time not greater than the positive
difference between the amount of outstanding Indebtedness on the Document
Closing Date secured by Liens under clause (i) above ("EXISTING LIENS") and
the amount of outstanding Indebtedness secured by Existing Liens at the
time of the creation, incurrence or assumption of the Additional Lien,
PROVIDED that the Additional Lien shall not extend to assets other than
those covered by Existing Liens, except as otherwise permitted hereunder;
and
(xiv) any renewal of or substitution for any Lien permitted by
any of the preceding clauses, provided that the Lien is not extended to any
additional assets.
(bb) SALES OF ASSETS. TMM shall not, and shall not permit any of
its Restricted Subsidiaries to, and each other Seller shall not, and shall not
permit any of its consolidated Subsidiaries to make any Asset Disposition unless
the consideration received from such Asset Disposition is equal to or greater
than the fair market value of the assets or stock sold (as determined in good
faith by the Board of Directors and evidenced by a Board Resolution) and at
least 80% (or such lower percentage as shall be permitted at any time in the
future pursuant to the terms of any Indenture) of the consideration received
from such Asset Disposition is in the form of cash; PROVIDED, that the amount of
(x) any liabilities (as shown on TMM's or such Restricted Subsidiary's or such
other Seller's or such other Seller's consolidated Subsidiary's most recent
balance sheet or in the notes thereto) of TMM or such Restricted Subsidiary, or
such other Seller or such other Seller's consolidated Subsidiary which are
assumed by the transferee of such assets, including any Indebtedness of a
Restricted Subsidiary of TMM or a consolidated Subsidiary of another Seller
whose stock is purchased by the transferee, and (y) any notes or other
obligations received by TMM or any such Restricted Subsidiary or such other
Seller or any other Seller's consolidated Subsidiary from such transferee that
are immediately converted by TMM or any such Restricted Subsidiary or such other
Seller or such other Seller's consolidated Subsidiary into cash (to the extent
of the cash received) shall be deemed to be cash for purposes of this SECTION
3.2(bb).
47
(cc) Except as otherwise provided herein, the Sellers shall not and
shall not permit any of their Subsidiaries to extend, amend or otherwise modify
the terms of any Purchased Receivable in a manner that adversely affects the
amount or collectibility of such Purchased Receivable except for discounts
negotiated for early payment thereof or other extensions, amendments or
modifications, in each case effected in accordance with TMM's Credit and
Collection Policies.
(dd) The obligations of the Sellers under any of the Transaction
Documents shall not be subject to any defense, counterclaim or right of set-off
which the Sellers have or may have against any amount claimed to be due to it
with respect to any Purchased Receivables, except as otherwise expressly
provided in any Transaction Document to which it is a party.
Section 3.3 MERGER OR CONSOLIDATION OF, OR ASSUMPTION OF THE OBLIGATIONS
OF ANY SELLER. None of the Sellers shall consolidate with, merge with or into,
or transfer, directly or indirectly by lease, assignment, sale or otherwise,
including, without limitation, as a result of the merger or consolidation of a
consolidated Subsidiary (or in the case of TMM a Restricted Subsidiary) with any
other Person (collectively, a "transfer"), all or substantially all of its
assets in one transaction or a series of related transactions to, any Person or
group of affiliated Persons or, in the case of any Seller other than TMM, permit
any of its consolidated Subsidiaries to, or in the case of TMM, permit any of
its Restricted Subsidiaries to, enter into any such transaction or transactions
if such transaction or transactions in the aggregate would result in a transfer
of all or substantially all of the assets of TMM and its Restricted
Subsidiaries, or such other Seller and its consolidated Subsidiaries, unless:
(a) In the case of a merger or consolidation, such Seller or TMM
shall be the continuing Person, or the Person formed by such consolidation or
merger or into which such Seller is merged or to which all or substantially all
of the properties and assets of such Seller are transferred or to which all of
the assets of TMM and its Restricted Subsidiaries on a consolidated basis are
transferred (the "surviving entity") shall be a Person organized and existing
under the laws of the United States of America, any State thereof or the
District of Columbia or Mexico and, prior to the effectiveness of such
transaction or transfer shall expressly assume, by a written instrument in form
and substance satisfactory to the Investor Certificateholders, all the
obligations of such Seller (and if such Seller is TMM, its obligations as
Guarantor and Sellers' Representative) under the Transaction Documents; PROVIDED
that a corporation at all times shall be a co-obligor together with the
continuing Person or transferee if the continuing Person or transferee is itself
not a corporation;
(b) immediately before and immediately after giving effect to such
transaction, no Rapid Amortization Event or Unmatured Rapid Amortization Event
exists;
(c) immediately after giving effect to such transaction, the
Consolidated Net Worth (as such term is defined in the Series 2001-A Supplement)
of TMM and its Restricted Subsidiaries or, in the case of such a merger or
consolidation of or transfer by TMM, the surviving entity is equal to or greater
than the Consolidated Net Worth of TMM and its Restricted Subsidiaries
immediately prior to the transaction;
48
(d) immediately after giving effect to such transaction, TMM or
the surviving entity in the case of such a merger or consolidation of or
transfer by TMM could incur at least $1.00 of additional Indebtedness under each
of the Indentures; and
(e) prior to the effectiveness of such transaction or transfer,
Sellers' Representative shall deliver to the Trustee (i) an Officer's
Certificate (attaching the arithmetic computations to demonstrate compliance
with paragraph (c), if applicable) stating that such consolidation, merger,
sale, assignment, transfer or lease and written instrument of assumption comply
with this SECTION 3.3 and that all conditions precedent herein provided for
relating to such transactions have been complied with, (ii) opinions of counsel
(x) stating that such merger, consolidation or transfer and written instrument
of assumption comply with this SECTION 3.3 and (y) which are otherwise in form
and substance reasonably satisfactory to the Investor Certificateholders, (iii)
if such transaction or transfer relates to a Seller other than TMM, the Sellers'
Representative shall cause TMM to deliver a reaffirmation of the Guaranty and
(iv) if such transaction or transfer relates to TMM and TMM is not the surviving
entity, the Sellers' Representative shall cause such surviving entity to deliver
a new guaranty in form and substance substantially similar to EXHIBIT I.
Section 3.4 INDEMNIFICATION BY TMM.
(a) Notwithstanding anything to the contrary contained in this
Master Trust Agreement or any Supplement, but except as set forth in the proviso
at the end of SECTION 3.4(b) below, TMM, on behalf of itself and each of the
other Sellers, shall be liable to all creditors of the Trust (but not to
Investor Certificateholders) for all liabilities of the Trust to the same extent
as it would be if the Trust constituted a partnership under New York law and any
Seller was a general partner thereof. Any such creditor of the Trust will be a
third party beneficiary of this SECTION 3.4(a).
(b) TMM, on behalf of itself and each of the other Sellers, shall
indemnify and hold harmless the Trustee, Paying Agent, each Certificateholder or
Certificate Owner (in its capacity as such), their permitted successors and
assigns (including owners of participation interests in Certificates granted by
a Certificateholder or Certificate Owner), and each of their respective
officers, directors, employees and agents (each, an "INDEMNIFIED PARTY") from
and against any loss, liability, judgment, damage, injury or claim other than
Taxes (except as expressly provided herein or in any Supplement) (including all
legal or other expenses reasonably incurred by an Indemnified Party in
connection with the investigation of, preparation for or defense of any claim,
action or proceeding, whether or not resulting in any liability) ("INDEMNIFIED
LOSSES") (whether on account of settlements or otherwise, and whether or not the
relevant Indemnified Party is a party to any action or proceeding that gives
rise to Indemnified Losses) suffered or sustained by reason of or in any way
arising out of or relating to (i) any of the Transaction Documents (which for
such purposes shall be deemed to also include the Original Transaction Documents
and the October 2002 Transaction Documents), any Obligor Agreement, any
Purchased Receivables or any of the transactions contemplated thereby, any
investigations, litigations or proceedings in connection therewith, any
amendment, modification, waiver, enforcement or remedy in respect thereto, or
any act or omission in connection therewith, (ii) acts, omissions or alleged
acts or omissions arising out of or in connection with the acceptance,
administration or performance of any Transaction Document or the use of proceeds
therefrom by
49
any Seller, including without limitation TMM in its capacity as Servicer,
Sellers' Representative and Guarantor, or the trusts hereunder and thereunder
and its duties hereunder or thereunder, (iii) any breach of any representation
or warranty or covenant of any Seller, including, without limitation, TMM in its
capacity as Servicer, Sellers' Representative or Guarantor contained in any
Transaction Document and (iv) fees (including without limitation all broker's or
finder's fees), acts, omissions or alleged acts or omissions arising out of or
in connection with the offer or solicitation of any Person to become a Series
2001-A Certificateholder or Series 2002-A Certificateholder; PROVIDED, HOWEVER,
that TMM shall not indemnify any Indemnified Party to the extent of any
Indemnified Losses which are found in a final judgment of a court of competent
jurisdiction to have been caused by the gross negligence or willful misconduct
by any Indemnified Party (or the gross negligence or willful misconduct on the
part of any of such Indemnified Party's officers, directors, employees or
agents); and PROVIDED FURTHER that the foregoing indemnity shall not be
construed to constitute a guarantee of payment of the Purchased Receivables or
to give rise to liability to TMM for non-payment of a Purchased Receivable by
any Customer Obligor to the extent any such guarantee or liability is excluded
pursuant to SECTION 2.2(b) above.
(c) All payments in respect of the Certificates shall be made
without set-off, counterclaim, fees, liabilities or similar deductions, and free
and clear of, and without any deductions or withholdings whatsoever, and TMM, on
behalf of itself and each of the other Sellers, shall indemnify Indemnified
Parties for, taxes, levies, duties or charges of any nature now or hereafter
imposed, levied, collected, withheld or assessed on an Indemnified Party by the
United States or Mexico or any political subdivision or taxing authority thereof
or therein ("COVERED TAXES"), except as provided below. Notwithstanding the
provisions of SECTION 3.4(b) above or any other provision to the contrary
herein, if any Seller or any agent thereof is required by law or regulation to
make any deduction or withholding for or on account of Covered Taxes, TMM, on
behalf of such Seller, shall pay to the Trust, for payment to the respective
Certificateholder and/or Certificate Owners, any Additional Amounts except that
no such Additional Amounts shall be payable and TMM shall have no obligation to
reimburse or indemnify a Certificateholder or Certificate Owner in respect of
(i) any Taxes imposed on any payment made to such Indemnified Party solely by
reason of the failure of such Indemnified Party to provide, in the time and
manner required under applicable law, regulations and administrative practice,
any documentation or certification requested by TMM or the Trustee and required
to make any claim for exemption from, or reduction of, withholding of any Taxes
to which it is otherwise entitled; PROVIDED, THAT (x) such Indemnified Party
shall be under no obligation to provide any documentation or certification to
TMM or the Trustee which such Indemnified Party deems, in such Indemnified
Party's reasonable judgment, to be confidential and (y) the completion,
execution and delivery of such documentation or certification will not result,
in the good faith reasonable determination of such Indemnified Party, in the
imposition on such Indemnified Party of (1) any additional material legal or
regulatory burden or (2) any additional material out-of-pocket costs which are
not paid by TMM or (3) any other material adverse consequences; (ii) Taxes that
would not have been imposed on the relevant Indemnified Party but for the
existence of any present or former connection (unrelated to the transactions
contemplated by the Transaction Documents) between such Indemnified Party (or an
Affiliate thereof) (or between a fiduciary, settlor or beneficiary of, or a
possessor of a power over, such Indemnified Party or Affiliate, but excluding
the Trustee, if such Indemnified Party or Affiliate is an estate or a trust, or
between a member or shareholder of such Indemnified Party or Affiliate, if
50
such Indemnified Party or Affiliate is a partnership or corporation) and the
jurisdiction imposing such Taxes or any political subdivision thereof,
including, without limitation, such Indemnified Party or Affiliate (or such
fiduciary, settlor, beneficiary, possessor, member or shareholder) being or
having been a citizen or resident or treated as a resident thereof, or being or
having been incorporated or organized therein, or being or having been engaged
in a trade or business therein, or being or having been engaged in activities or
transactions therein unrelated to those contemplated by the Transaction
Documents, or being or having been present therein, or having or having had a
permanent establishment therein, (iii) any Taxes that would not have been
imposed but for the breach by a Certificateholder or Certificate Owner of any
representation or warranty made by it in any Transaction Document or the failure
of such Certificateholder or Certificate Owner to observe or perform any
obligation of such Certificateholder or Certificate Owner under the Transaction
Documents, (iv) any Tax imposed by the federal government of the United States
of America, or by any state or local government or taxing authority located in
the United States of America, on or measured by the net income of such
Indemnified Party, by the jurisdiction in the United States under the laws of
which the Indemnified Party is organized or maintains an office, or by any
jurisdiction in the United States in which the Indemnified Party is subject to
such net income tax as a result of transactions or activities in such
jurisdiction unrelated to those contemplated by the Transaction Documents, (v)
any Tax imposed on an Indemnified Party by reason of either (A) the failure of
the certification made by such Indemnified Party on any form provided pursuant
to SECTION 3.4(d) below to be accurate and true in all material respects or (B)
the failure of such Indemnified Party to otherwise comply with SECTION 3.4(d),
unless any such failure would not have occurred but for a Change in Law that
occurs on or after the date that the Indemnified Party acquired its interest in
a Certificate, (vi) any Mexican Tax imposed on any assignee of a Certificate or
any holder or owner of a participation interest in a Certificate, that, in
either case, acquired its interest in a Certificate in violation of a transfer
restriction set forth in a Supplement to the extent such Mexican Tax exceeds the
Mexican Tax that would have been imposed on the assignor or grantor of such
interest absent such violation, or (vii) any Mexican Tax on any fees (which are
in addition to interest paid on the Certificates) paid by Purchaser to any
participant or assignee.
As soon as reasonably practicable after the date of any payment by the
Sellers of any Covered Tax in respect of any Investor Certificate, but in any
case within 30 calendar days, the Sellers shall furnish to the Trustee for
delivery to the Certificate Owners, a certified copy of the original tax receipt
(if such a receipt has been issued and, if such tax receipt has not then been
issued, the Sellers shall furnish a certified copy thereof to the Trustee for
delivery to the Certificate Owners as soon as reasonably practicable after such
tax receipt is so issued, but in any case within thirty (30) calendar days
thereafter).
The obligations of TMM under this SECTION 3.4(c) and under SECTION 3.4(b)
above shall survive the termination of the Trust, the sale or transfer of any
Certificate or sale or transfer of a participation interest in any Certificate
by any Certificateholder or Certificate Owner and the resignation or removal of
the Trustee.
(d) Each Certificateholder and Certificate Owner (and each Person
that acquires an interest in an Investor Certificate by assignment or
participation or other transfer) that is not a "United States person" as defined
in Section 7701(a)(30) of the Internal Revenue Code of 1986, as amended, by its
acceptance of its Investor Certificate (or its interest therein)
51
covenants and agrees that it (or an intermediary which has provided a copy of
IRS form W-8IMY indicating that the intermediary holds the following forms) will
(i) provide to the Trustee and to the Sellers an appropriately executed copy of
Internal Revenue Service Form W-8ECI (or applicable successor form) certifying
that any payments made to or for the benefit of such Certificateholder,
Certificate Owner or other Person are effectively connected with the conduct of
a United States trade or business (or, alternatively, Internal Revenue Service
Form W-8BEN, but only if the applicable treaty described in such form provides
for a complete exemption from United States federal income Tax withholding in
respect of payments on the Certificates) or any successor form, (A) on or prior
to the date hereof (or, in the case of a Person acquiring an interest in an
Investor Certificate by assignment, participation or other transfer, on or prior
to the date of the relevant assignment or transfer or grant of participation),
(B) in each third subsequent year (or otherwise at the times required by
applicable regulations to establish a complete exemption from United States
federal income Tax withholding) prior to the first payment to be made to or for
the benefit of such Certificateholder, Certificate Owner or other Person in such
year, (C) upon the occurrence of any act by such Certificateholder, Certificate
Owner or other Person which would require the amendment or resubmission of any
such form previously provided hereunder, and (D) upon the request of the Trustee
or any Seller, upon the occurrence of any event (other than as a result of an
act by such Certificateholder, Certificate Owner or other Person) which would
require the amendment or resubmission of any such form previously provided
hereunder, and (ii) notify the Trustee and the Sellers if the certification made
on any form provided pursuant to this SECTION 3.4(d) is no longer accurate and
true in all material respects.
(e) In the event that any Seller has knowledge that it is or will
be required to, or there arises, in such Seller's reasonable opinion, a
substantial likelihood that such Seller will be required to, pay an Additional
Amount for or on account of any deduction or withholding of Tax pursuant to this
SECTION 3.4, such Seller will promptly notify the Trustee and each relevant
Certificateholder and/or Certificate Owner of the nature of such deduction or
withholding, and shall furnish such information to the Trustee and such
Certificateholder and/or Certificate Owner with respect to such deduction or
withholding as the Trustee or such Certificateholder and/or Certificate Owner
may reasonably request. In the event of any knowledge or opinion of any Seller
described in the preceding sentence, such Seller, TMM, the Trustee and each
relevant Certificateholder and/or Certificate Owner shall consult in good faith
to determine what may be required to avoid or reduce the withholding Tax, and
shall each use reasonable efforts to avoid or reduce such withholding Tax;
PROVIDED that nothing herein shall require the Trustee or any Certificateholder
and/or Certificate Owner to take any action which it in its reasonable judgment
determines may be adverse to it or, in the case of the Trustee, the interests of
the Trust.
Section 3.5 GUARANTOR AS SELLERS' REPRESENTATIVE. Each Seller hereby
appoints TMM as its representative ("SELLERS' REPRESENTATIVE"), and the Sellers'
Representative hereby accepts such appointment, for receipt of any payment,
notice or other communication directed to the Sellers or any Seller pursuant to
any of the Transaction Documents and for the taking of any action (including the
making of all representations and covenants) which a Seller is required or
permitted to undertake or make pursuant to the Transaction Documents. The
Trustee may regard any notice or other communication pursuant to any Transaction
Document from the Sellers' Representative as a notice or communication from the
Sellers. Without limiting the foregoing, the Paying Agent shall make all
payments on the Distribution Date to the Sellers'
52
Representative, for the benefit of the applicable Seller or to an account
specified by the Sellers' Representative, and such payment to the Sellers'
Representative shall constitute payment to such Sellers for all purposes under
the Transaction Documents. TMM hereby accepts such appointment and agrees that
it shall not resign from its duties as the Sellers' Representative without the
written consent of the Trustee (acting pursuant to written instructions from the
Cumulative Required Investor Certificateholders (Super Majority). Each Seller
hereby covenants and agrees that each representation and warranty, covenant,
agreement and undertaking made in its name or on its behalf by the Sellers'
Representative shall be deemed for all purposes to have been made by such Seller
and shall be binding upon and enforceable against such Seller to the same extent
as if the same had been made directly by such Seller.
Section 3.6 SELLERS MAY OWN CERTIFICATES. Any Seller may become the owner
of Certificates, subject to the eligibility requirements for Certificateholders
herein, but shall not participate in decisions made or instructions given to the
Trustee by the Certificateholders as a group hereunder.
Section 3.7 SUBORDINATED CERTIFICATES. Notwithstanding anything in this
Master Trust Agreement and any related Supplement to the contrary, no Holder of
a Subordinated Certificate shall participate in decisions made or instructions
given to the Trustee by the Certificateholders, or any Series of
Certificateholders as a group hereunder or under any Supplement.
Section 3.8 LIMITATIONS ON SELLERS', TMM MULTIMODAL'S LIABILITY; SELLERS'
RIGHT TO SUBROGATION AND REIMBURSEMENT.
(a) In an action or proceeding involving any state law, any
federal bankruptcy, insolvency or reorganization law, or any other law affecting
the rights of creditors generally, if the obligations of any Seller (other than
TMM) or TMM Multimodal (as "SUBSIDIARY TRANSFEROR") under the Transaction
Documents would otherwise be determined to be voidable, invalid or unenforceable
as a fraudulent transfer or otherwise as a result or on account of the amount of
such Seller's or TMM Multimodal's liability or obligations under the Transaction
Documents, then, notwithstanding any other provision hereof to the contrary, the
amount of such liability or obligation shall, without any further action of such
Seller, TMM Multimodal or any other Person, be automatically limited and reduced
to the highest amount which is valid and enforceable.
(b) In the event that any Purchased Receivables, or the value
thereof, are or are claimed to have been transferred or paid by a Subsidiary
Transferor to the Trustee or any payment by TMM Multimodal in satisfaction of
any obligations of TMM or any other Seller (the "AFFILIATE OBLIGATIONS"), such
Subsidiary Transferor shall be subrogated to the Trustee's rights against the
Guarantor under the Guaranty with respect to such Affiliate Obligations, and
shall have a right to reimbursement from the Guarantor with respect to such
Affiliate Obligations; PROVIDED that such right of subrogation and right to
reimbursement shall be subordinated in all respects to the rights of the Trustee
and the other beneficiaries named under the Guaranty, including, but not limited
to, the right to payment in full of all amounts payable thereunder.
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ARTICLE IV
RIGHTS OF CERTIFICATEHOLDERS AND SELLERS;
ALLOCATION AND APPLICATION OF COLLECTIONS AND RECEIVABLE
SHORTFALL PAYMENTS
Section 4.1 ESTABLISHMENT OF ACCOUNTS AND ALLOCATIONS.
(a) THE COLLECTION ACCOUNT. The Trustee, (i) for the benefit of
the Certificateholders and the Trustee, shall establish and maintain in the name
of the Trustee, on behalf of the Trust, or cause to be established and
maintained with a New York State office or branch of a Qualified Institution, a
non-interest bearing segregated trust account (the "COLLECTION ACCOUNT") bearing
a designation clearly indicating that the funds deposited therein are held in
trust for the benefit of the Certificateholders and the Trustee and (ii) for the
benefit of the Certificateholders and the Trustee shall establish in the name of
the Trustee, on behalf of the Trust, a non-interest bearing segregated account
(the "SWEEP ACCOUNT") bearing a designation clearly indicating that the funds
deposited therein are held in trust for the benefit of the Certificateholders;
PROVIDED, HOWEVER, that upon the insolvency of the Qualified Institution where
the Sweep Account is maintained, the Sweep Account shall not be permitted to be
maintained with such Qualified Institution and upon the insolvency of the
Trustee, the Collection Account shall not be permitted to be maintained with the
Trustee. SCHEDULE 1-A sets forth the account number of the Sweep Account, the
account designation of such account and the name of the Qualified Institution
where the Sweep Account is maintained. SCHEDULE 1-B sets forth the account
number of the Collection Account, the account designation of such account and
the name of the institution with which such account is maintained. Pursuant to
the terms of the Control Agreement, all funds in the Sweep Account will be
transferred on a daily basis into the Collection Account pursuant to the wire
transfer instructions and at the times set forth on SCHEDULE 1-C. The Collection
Account shall be divided into individual subaccounts for each outstanding Series
(each, respectively, a "COLLECTION SUBACCOUNT" and, collectively, the
"COLLECTION SUBACCOUNTS"), each bearing a designation clearly indicating that
the funds deposited therein are held in trust for the benefit of the Trustee and
the Certificateholders of such Series with a depository institution or trust
company meeting the criteria provided in the related Supplement. The Trustee, on
behalf of the Trust, shall possess all right, title and interest in all funds on
deposit from time to time in the Collection Account and in all proceeds thereof.
The Collection Account shall be under the sole dominion and control of the
Trustee for the benefit of the Investor Certificateholders. Neither the Sellers
nor the Servicer, nor any Person or entity claiming by, through or under any
Seller or the Servicer, shall have any right, title or interest in (except to
the extent expressly provided under this Master Trust Agreement or any
Supplement), or any right to withdraw any amount from, the Collection Account.
Funds in the Collection Account shall not be invested. Funds in any Collection
Subaccount may not be invested except as provided in the related Supplement and
any earnings resulting from such investment shall be applied as provided in such
Supplement.
(b) THE PESO DENOMINATED ACCOUNT. The Trustee, for the benefit of
the Certificateholders and the Trustee, shall, with the cooperation of TMM,
establish and maintain in the name of the Trustee, on behalf of the Trust, at a
Mexico City, Federal District, office or branch of a Qualified Institution
selected by TMM (the "PESO QUALIFIED INSTITUTION") an interest
54
bearing segregated trust account (the "PESO DENOMINATED ACCOUNT") bearing a
designation clearly indicating that the funds deposited therein are held in
trust for the benefit of the Certificateholders and the Trustee; PROVIDED,
HOWEVER, that upon the insolvency of the Peso Qualified Institution, the Peso
Denominated Account shall not be permitted to be maintained with the Peso
Qualified Institution. SCHEDULE 1-D sets forth the account number of the Peso
Denominated Account, the account designation of such account and the name of the
institution with which such account has been established. The Trustee, on behalf
of the Trust, shall possess all right, title and interest in all funds on
deposit from time to time in the Peso Denominated Account and in all proceeds
thereof. The Peso Denominated Account shall be under the sole dominion and
control of the Trustee for the benefit of the Investor Certificateholders.
Neither the Sellers nor the Servicer, nor any Person or entity claiming by,
through or under any Seller or the Servicer, shall have any right, title or
interest in, or any right to withdraw any amount from, the Peso Denominated
Account. Funds in the Peso Denominated Account shall not be invested.
(c) CONVERSION OF PESOS INTO DOLLARS. Pursuant to the Conversion
Agreement, each time funds in the Peso Denominated Account reach the amount of
Ps. 250,000 (the "PESO THRESHOLD"), the Peso Qualified Institution shall
immediately convert all funds then deposited in the Peso Denominated Account
into Dollars and shall immediately, but in any case no later than 2:00 p.m. New
York City time on the day such conversion is initiated, deposit (by means of a
wire transfer as set forth on SCHEDULE 1-C) the resulting Dollar amount into the
Collection Account. The Peso Qualified Institution shall convert the Pesos
deposited in the Peso Denominated Account into Dollars each time funds deposited
therein reach the Peso Threshold. For the conversion of Pesos deposited in the
Peso Denominated Account into Dollars for deposit as provided herein, the Peso
Qualified Institution, pursuant to the terms of the Conversion Agreement, shall
utilize the rate of exchange (net of fees or other charges) of Pesos into
Dollars that such Peso Qualified Institution determines, on the date of the
corresponding conversion, to be its fixed rate of exchange of Pesos into
Dollars. In the event that at any time such fixed rate of exchange of Pesos into
Dollars is not available for any reason, the Peso Qualified Institution shall
use the rate of exchange which the Peso Qualified Institution uses as the
applicable rate of exchange of Pesos into Dollars for its best corporate
clients.
(d) QUALIFIED INSTITUTION. If the Trustee ceases to be a
"Qualified Institution", then the Trustee shall (i) provide each Enhancement
Provider and the Servicer with prompt written notice that it is no longer a
"Qualified Institution" and (ii) transfer the funds deposited in each of the
accounts in the manner directed in writing by the Cumulative Required Investor
Certificateholders within 10 Business Days of the day on which the Trustee
ceased to be a "Qualified Institution".
(e) SERVICER'S DIRECTION TO TRUSTEE. The Servicer agrees to give
written direction in a timely manner to the Trustee to apply all Collections
with respect to the Purchased Receivables and to make all other applications,
allocations and distributions, in each case in the manner described in this
ARTICLE IV and in the related Supplement with respect to each outstanding
Series.
(f) ALLOCATIONS WITH RESPECT TO EACH OUTSTANDING SERIES. On or
before 4:00 p.m. New York City time on each Business Day, the Trustee, in
accordance with the report delivered for such day pursuant to SECTION 8.1(b)
below, shall withdraw from funds on deposit in
55
the Collection Account and deposit in each Collection Subaccount of each
outstanding Series an amount equal to the product obtained by multiplying the
Series Percentage for such Series times the amount on deposit in the Collection
Account on such day. All such amounts deposited in such Collection Subaccounts
of such Series shall be distributed in accordance with the applicable
Supplement(s).
Section 4.2 RECEIVABLE SHORTFALL PAYMENTS.
(a) (i) If Collections received by the Trust in any
Collection Period are less than the Aggregate Required Coverage Amounts for
such Collection Period, then Sellers' Representative shall pay to the
Trust, by wire transfer into the Collection Account of immediately
available funds in Dollars, on the immediately succeeding Transfer Date,
the excess of such Aggregate Required Coverage Amounts over such
Collections.
(ii) If, in any Collection Period, the Sellers generate
Eligible Purchased Receivables (excluding all Excess Receivables) having an
aggregate Owed Amount at the time of their origination in an amount less
than the Aggregate Required Coverage Amounts for such Collection Period,
then Sellers' Representative shall pay to the Trust, by wire transfer into
the Collection Account of immediately available funds in Dollars, on the
immediately succeeding Transfer Date, such excess of the Aggregate Required
Coverage Amounts over such Owed Amounts based on the Servicer Report
delivered pursuant to SECTION 4.2(c) below.
(b) With respect to any Eligible Purchased Receivables generated
in any Collection Period, if, as a result of any reductions in the Owed Amount
of such Eligible Purchased Receivables (as a result of customer disputes,
negotiated discounts for early payment or otherwise, but not as a result of
reductions arising from charge-offs), on the Determination Date next succeeding
such Collection Period it is determined pursuant to SECTION 4.2(c) below that
the sum of such reduced Owed Amounts plus the amount of Collections on such
Purchased Receivables is less than the Aggregate Required Coverage Amounts for
such Collection Period, the Sellers' Representative shall pay the Trust, by wire
transfer into the Collection Account of immediately available funds in Dollars,
on such Transfer Date, such shortfall based on the Servicer Report delivered
pursuant to SECTION 4.2(d) below.
(c) In calculating any Receivable Shortfall Payment for any
Collection Period in accordance with SECTION 4.2(b) above, the Servicer shall
monitor each Eligible Purchased Receivable in the group of Eligible Purchased
Receivables generated in any Collection Period and shall review, in conjunction
with the Trustee, any Eligible Purchased Receivable that remains unpaid longer
than thirty (30) days past its due date (as set forth on the related invoice).
The Trustee, after consulting with the Servicer, shall reasonably determine
whether such Eligible Purchased Receivable has not been paid due to
credit-related defaults by Customer Obligors or due to customer disputes,
negotiated discounts for early payment or other reasons unrelated to the credit
of the applicable Customer Obligor. Any Eligible Purchased Receivable determined
not to have been paid due to credit-related defaults shall be deemed to be a
charge-off, for purposes of calculating the Receivable Shortfall Payment due.
56
(d) On each Determination Date, the Servicer shall calculate the
Receivable Shortfall Payments due pursuant to SECTION 4.2(a) or (b) above, shall
set forth its calculations with respect to Receivable Shortfall Payments, or if
no Receivable Shortfall Payment is due, so indicate with such supporting
calculations, on the certificate (a "SERVICER REPORT") of a Responsible Officer
in the form of EXHIBIT M, and shall deliver the Servicer Report to the Trustee,
the Paying Agent and the Sellers.
Section 4.3 MULTIMODAL PREPAYMENT PROCEEDS AND PORT SHARES PREPAYMENT
PROCEEDS.
(a) All Multimodal Prepayment Proceeds received by the Trustee
shall be allocated by the Trustee between and deposited into the Series 2001-A
Certificate Account and the Series 2002-A Certificate Account, respectively, in
accordance with the Series Percentage of each such Series; PROVIDED, HOWEVER,
that prior to the date of payment of the Additional Series 2001-A Full
Repurchase Payment, the Series Percentage with respect to Series 2001-A shall be
calculated solely on the Certificate Balance then outstanding with respect to
the Original Series 2001-A Certificates. The portion of the Multimodal
Prepayment Proceeds deposited into the Series 2001-A Certificate Account shall
be applied by the Paying Agent to make a prepayment in Dollars of the principal
amount of the Series 2001-A Certificates, in each case pro rata among the Series
2001-A Certificates and, after payment of all such principal amounts owing, to
the Series 2001-A Certificateholders for any other amounts owing to them, in
each case pro rata to each Series 2001-A Certificateholder after paying or
setting aside sufficient amounts for payment of the Series 2001-A Series
Percentage of the Trustee Fee and Servicing Fee due on the next Distribution
Date (to the extent such amounts have not already been paid or set aside). The
portion of the Multimodal Prepayment Proceeds deposited into the Series 2002-A
Certificate Account shall be applied by the Paying Agent to make a prepayment in
Dollars of the principal amount of the Series 2002-A Certificates, in each case
pro rata among the Series 2002-A Certificates and, after payment of all such
principal amounts owing, to the Series 2002-A Certificateholders for any other
amounts owing to them, in each case pro rata to each Series 2002-A
Certificateholder after paying or setting aside sufficient amounts for payment
of the Series 2002-A Series Percentage of the Trustee Fee and Servicing Fee due
on the next Distribution Date (to the extent such amounts have not already been
paid or set aside).
(b) All Port Shares Prepayment Proceeds received by the Trustee
shall be allocated and deposited by the Trustee (i) at all times prior to the
date that the Series 2001-A Certificateholders receive the Additional Series
2001-A Full Repurchase Payment, into the Series 2001-A Certificate Account and
(ii) at all times after the Additional Series 2001-A Full Repurchase has been
paid to the Series 2001-A Certificateholders, shall be allocated by the Trustee
between and deposited into the Series 2001-A Certificate Account and the Series
2002-A Certificate Account, respectively, in accordance with the Series
Percentage of each such Series. The portion of the Port Shares Prepayment
Proceeds deposited into the Series 2001-A Certificate Account shall be applied
by the Paying Agent to make a prepayment in Dollars of the principal amount of
the Series 2001-A Certificates, in each case pro rata among the Series 2001-A
Certificates and, after payment of all such principal amounts owing, to the
Series 2001-A Certificateholders for any other amounts owing to them, in each
case pro rata to each Series 2001-A Certificateholder after paying or setting
aside sufficient amounts for payment of the Series 2001-A Series Percentage of
the Trustee Fee and Servicing Fee due on the next Distribution Date (to the
extent such amounts have not already been paid or set aside). The
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portion of the Port Shares Prepayment Proceeds deposited into the Series 2002-A
Certificate Account shall be applied by the Paying Agent to make a prepayment in
Dollars of the principal amount of the Series 2002-A Certificates, in each case
pro rata among the Series 2002-A Certificates and, after payment of all such
principal amounts owing, to the Series 2002-A Certificateholders for any other
amounts owing to them, in each case pro rata to each Series 2002-A
Certificateholder after paying or setting aside sufficient amounts for payment
of the Series 2002-A Series Percentage of the Trustee Fee and Servicing Fee due
on the next Distribution Date (to the extent such amounts have not already been
paid or set aside).
TMM shall and shall cause its Restricted Subsidiaries to, and each other
Seller shall and shall cause its consolidated Subsidiaries to, within five (5)
days after the receipt of any Multimodal Prepayment Proceeds, pay such amounts,
without setoff, to the Trustee for payment by the Paying Agent of amounts owed
to the Series 2001-A Certificateholders and the Series 2002-A Certificateholders
as provided in the preceding sentences of this SECTION 4.3.
ARTICLE V
THE CERTIFICATES
Section 5.1 THE CERTIFICATES.
(a) Each Series of Investor Certificates shall represent (i) the
right of each holder of an Investor Certificate under each Series to receive
distributions of principal, interest and other amounts due thereunder on the
terms and conditions of such Certificate, the applicable Supplement and this
Master Trust Agreement and (ii) undivided interests in the Trust Assets,
including the benefits of any Enhancement or other proceeds to be provided with
respect to such Series as indicated in the Supplement relating to such Series,
and the right to receive Collections and other amounts at the times and in the
amounts specified in ARTICLE IV to be deposited in the Collection Account
(including each Series' Series Percentage of any Receivable Shortfall Payments)
and any Series Accounts maintained for the benefit of the Certificateholders of
such Series or paid to the Certificateholders of such Series. The Subordinated
Certificates shall represent the undivided interests in the Trust not
represented by any Series of Investor Certificates or Sellers' Certificate then
outstanding and subject to the limitations and restrictions in SECTION 5.14
hereof, including, without limitation, the right to receive Collections and
other amounts at the time and in the amounts specified in the applicable
Supplement as payable to a Subordinated Certificateholder; PROVIDED, HOWEVER,
that the Subordinated Certificates shall not represent any interest in the
Collection Account, the Sweep Account, the Peso Denominated Account or any
Series Account maintained for the benefit of the Certificateholders of any
Series or the benefits of any Enhancement issued with respect to any Series.
Each Subordinated Certificate shall be held by the Subordinate Certificate
Purchasers to whom it is originally issued and may not be sold or otherwise
transferred except as specifically provided herein. The Sellers' Certificate
shall represent the undivided interests in the Trust not represented by any
Series of Investor Certificates or Subordinated Certificate then outstanding,
including, without limitation, the right to receive Collections (in amounts
allocated to each Seller equal to such Seller's Seller Percentage) and other
amounts at the time and in the amounts specified in ARTICLE IV to be paid to a
Seller; PROVIDED, HOWEVER, that the Sellers' Certificate shall not represent any
interest in the Collection Account, the Sweep Account, the Peso Denominated
Account or any Series Account
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maintained for the benefit of the Certificateholders of any Series or the
benefits of any Enhancement issued with respect to any Series, except as
specifically provided in the provisions of any Supplement. The Sellers'
Certificate shall be held by the Sellers' Representative and may not be sold or
otherwise transferred.
(b) Subject to SECTIONS 5.10 and 5.11 below, the Investor
Certificates of each Series and any Class thereof may be issued in bearer form
(the "BEARER CERTIFICATES") with attached interest coupons (collectively, the
"COUPONS") or in fully registered form (the "REGISTERED CERTIFICATES"), and
shall be substantially in the form of the exhibits with respect thereto attached
to the related Supplement. The Sellers' Certificate shall be substantially in
the form of EXHIBIT A, with appropriate insertions. The Investor Certificates
and the Sellers' Certificate shall, upon issuance pursuant to SECTION 5.9 or
SECTION 5.11 below, be executed and authenticated by manual signature by the
Trustee for delivery as provided in SECTION 5.2 below. The Investor Certificates
shall be issuable in a minimum denomination of U.S.$500,000 initial principal
amount unless otherwise specified in any Supplement. Certificates bearing the
manual or facsimile signature of a Responsible Officer of the Trustee who was,
at the time when such signature was affixed, authorized to sign on behalf of the
Trustee shall not be rendered invalid, notwithstanding that such individual has
ceased to be so authorized prior to the execution or authentication and delivery
of such Certificates or does not hold such authority at the date of such
Certificates. A manually signed certificate of authentication by the Trustee
upon any Certificate shall be conclusive evidence, and the only evidence, that
such Certificate has been duly authenticated and delivered hereunder. All
Certificates shall be dated the date of their execution except Bearer
Certificates which shall be dated the applicable Closing Date as provided in the
related Supplement. Notwithstanding anything to the contrary in the Transaction
Documents, Investor Certificates of any Series or any Class shall not be issued
as Bearer Certificates unless the Sellers and their counsel are satisfied that
issuance shall be and is effected in a manner satisfactory in all respects to
the Sellers and their counsel in a manner designed to ensure that the Bearer
Certificates comply with the rules governing Bearer Certificates set forth in
Section 163(f)(2)(B) of the Internal Revenue Code of 1986, as amended, or any
successor provision, and the regulations thereunder.
(c) Investor Certificates to be issued in registered form and sold
in transactions outside of the United States in reliance on Regulation S shall
be issued as Registered Certificates in the form specified in the related
Supplement (each, a "REGULATION S CERTIFICATE") and registered in the name of
the Depository or a nominee of the Depository duly authenticated by the Trustee
as provided in SECTION 5.2 below, for credit to the accounts of the subscribers
for the Certificates represented thereby with Euroclear and Clearstream. Until
the 40th day after the later of the commencement of the offering and the
original issue date of the Regulation S Certificate, interests in such
Regulation S Certificate may only be held by the agent members of Euroclear or
Clearstream. The aggregate initial principal amount of each Regulation S
Certificate may from time to time be increased or decreased by the adjustments
made on the records of the custodian for the Depository or its nominee, as
hereinafter provided.
(d) The Investor Certificates may not be publicly offered or sold
in Mexico.
Section 5.2 AUTHENTICATION OF CERTIFICATES.
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(a) Contemporaneously with the conveyance and transfer of the
Purchased Receivables and the other Trust Assets to the Trust, on the Initial
Closing Date the Trustee authenticated and delivered the initial Series of
Investor Certificates in authorized denominations and the Sellers' Certificate,
collectively evidencing the entire interest in the Trust, upon the written order
of and as directed in writing by the Sellers' Representative. Upon the issuance
of the initial Series of Investor Certificates and receipt of payment therefor,
such Investor Certificates was deemed fully paid and nonassessable. The Trustee
authenticated and delivered to the Sellers' Representative the Sellers'
Certificate simultaneously with its delivery of the initial Series of Investor
Certificates to the Persons designated in the supplement for such initial
Series. Upon an Exchange as provided in SECTION 5.9 below and the satisfaction
of the conditions specified therein, the Trustee shall authenticate and deliver
the Investor Certificates of additional Series (in accordance with the
designation provided in the related Supplement), upon the written order of the
Sellers' Representative, to the Persons designated in such Supplement and in
authorized denominations equal to (in the aggregate) the Initial Certificate
Balance of such Series of Investor Certificates. If specified in the related
Supplement for any Series, the Trustee shall authenticate and deliver outside
the United States the Global Certificate that is issued upon original issuance
thereof, upon the written order of the Sellers' Representative, to the
Depository as provided in SECTION 5.10 below against payment of the purchase
price therefor. Upon the receipt of the Subordinated Certificate Purchase Price
(as defined in the Put Option Agreement) under the Put Option Agreement the
Trustee shall authenticate and deliver to the Subordinated Certificate Purchaser
a Subordinated Certificate in a face amount equal to the Subordinated
Certificate Purchase Price paid for such Subordinated Certificate under the Put
Option Agreement.
(b) The Trustee authenticated and delivered the initial Series of
Investor Certificates and the Sellers' Certificate on the Initial Closing Date,
and shall authenticate and deliver each subsequent Series of Investor
Certificates on the applicable Closing Date, upon delivery to it of the
following: (i) a Supplement satisfying the criteria set forth in SECTION 5.9(b)
below executed by the Sellers and specifying the Principal Terms of such Series,
(ii) Opinions of Counsel to the effect that (A) the newly issued Series of
Investor Certificates will be treated (x) as a sale of the Purchased Receivables
for Mexican bankruptcy purposes and (y) as indebtedness of the Sellers for
United States federal income tax purposes and for Mexican tax purposes, and (B)
there is no tax on the sale of the Purchased Receivables or on payments on the
Certificates, other than the Mexican withholding tax levied at the rate of 4.9%
for Hacienda Banks and 15% for Certificates held by an Eligible Owner which is
not a Hacienda Bank) on the payments of interest on the Certificates, (iii) in
connection with the issuance of any Series of Investor Certificates other than
Series 2001-A Certificates, Opinions of Counsel to the effect that the issuance
of the newly issued Series of Investor Certificates will not materially
adversely affect the United States federal income tax or Mexican income tax
characterization (including any withholding tax characterization) of any
outstanding Series of Investor Certificates or result in the Trust being subject
to United States federal or Mexican tax at the entity level, and (iv) any
additional items required by the terms of the applicable Supplement or requested
by any Series. Upon the Trustee authenticating and delivering any Subordinated
Certificate TMM shall cause to be delivered by U.S. and Mexican counsel
reasonably satisfactory to the Cumulative Required Investor Certificateholders,
Opinions of Counsel as to each of the matters specified in SECTION
5.2(b)(ii)(A)(y) and SECTION 5.2(b)(iii) above which opinions shall be in form
and substance reasonably satisfactory to the Trustee.
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Section 5.3 REGISTRATION OF TRANSFER AND EXCHANGE OF CERTIFICATES.
(a) The Trustee (or such other party as is then the Transfer Agent
and Registrar hereunder) shall cause to be kept at the office or agency to be
maintained by a transfer agent and registrar (the "TRANSFER AGENT AND
REGISTRAR"), in accordance with the provisions of SECTION 8.14, a register (the
"CERTIFICATE REGISTER") in which, subject to such reasonable regulations as it
may prescribe, the Transfer Agent and Registrar shall provide for the
registration of the Investor Certificates of each Series (unless otherwise
provided in the related Supplement) and of transfers and exchanges of the
Investor Certificates as herein provided. The Trustee is hereby initially
appointed Transfer Agent and Registrar for the purposes of registering the
Investor Certificates and transfers and exchanges of the Investor Certificates
as herein provided. In the event that the Trustee shall cease to be the Transfer
Agent and Registrar, the Trustee shall appoint a successor Transfer Agent and
Registrar reasonably acceptable to the Sellers' Representative and the Servicer.
In the event that a party other than the Trustee is appointed as Transfer
Agent and Registrar, the Trustee may revoke such appointment and remove such
party if the Trustee determines after consultation with the Servicer that such
party has failed to perform its obligations under this Master Trust Agreement in
any material respect. The Trustee shall be permitted to resign as Transfer Agent
and Registrar upon 30 days written notice to the Seller and the Servicer;
PROVIDED, HOWEVER, that such resignation shall not be effective and the Trustee
shall continue to perform its duties as Transfer Agent and Registrar until the
Trustee has appointed a successor Transfer Agent and Registrar in accordance
with this SECTION 5.3.(a).
Upon surrender for registration of transfer of any Investor Certificate at
any office or agency of the Transfer Agent and Registrar, the Trustee shall
execute, subject to the provisions of SECTIONS 5.3(d), (e) and (f) below, and
shall authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Investor Certificates in authorized denominations
aggregating an amount equal to the portion of the Certificate Balance
represented by the Investor Certificates so surrendered. Every Investor
Certificate presented or surrendered for registration of transfer shall be
accompanied by (x) a written instrument of transfer in a form satisfactory to
the Trustee and the Transfer Agent and Registrar duly executed by the
Certificateholder thereof or its attorney-in-fact duly authorized in writing,
(y) any additional instructions or certifications required under SECTIONS 5.3(e)
and (f) below, and (z) a certification as follows:
(i) if such Certificate is being acquired for the account
of such Holder, without transfer, a certification to such effect from such
Holder in substantially the form of EXHIBIT F-1 hereto;
(ii) if such Certificate is being transferred to a qualified
institutional buyer (as defined in Rule 144A) in accordance with Rule 144A,
a certification to such effect from such Holder in substantially the form
of EXHIBIT F-1 or EXHIBIT F-3 hereto, as applicable;
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(iii) if such Certificate is being transferred in reliance on
Regulation S, a certification to that effect from such Holder in
substantially the form of EXHIBIT F-2 hereto;
(iv) if such Certificate is being transferred in reliance on
another exemption from the registration requirements of the Securities Act,
a certification to that effect from such Holder in substantially the form
of EXHIBIT F-1 hereto and an Opinion of Counsel to such Holder to the
effect that such transfer is in compliance with the Securities Act in
substantially the form of EXHIBIT G hereto; or
(v) such other certifications or procedures as may be
specified in the applicable Supplement.
At the option of a Bearer Certificateholder, subject to applicable laws and
regulations, Bearer Certificates may be exchanged for other Bearer Certificates
or Registered Certificates of the same Series in authorized denominations
aggregating an amount equal to the portion of the Certificate Balance
represented by the Certificates so exchanged, in the manner specified in the
Supplement for such Series upon surrender of the Bearer Certificates to be
exchanged at an office or agency of the Transfer Agent and Registrar located
outside the United States, as specified in the related Supplement. Each Bearer
Certificate surrendered pursuant to this SECTION 5.3 shall have attached thereto
(or be accompanied by) all unmatured Coupons, PROVIDED that any Bearer
Certificate to be exchanged for a Registered Certificate so surrendered after
the close of business on the Record Date preceding the relevant Distribution
Date need not have attached the Coupons related to such Distribution Date.
The preceding provisions of this SECTION 5.3 notwithstanding, the Transfer
Agent and Registrar shall not be required to register the transfer or exchange
of any Investor Certificate of any Series for a period of fifteen (15) days
preceding the due date for any payment with respect to the Investor Certificates
of such Series.
Unless otherwise provided in the related Supplement, no service charge
shall be made for any registration of transfer or exchange of Investor
Certificates, but the Transfer Agent and Registrar may require payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Investor Certificates.
All Investor Certificates (together with any Coupons attached to Bearer
Certificates) surrendered for registration of transfer or exchange shall be
canceled by the Transfer Agent and Registrar and disposed of in the Trustee's
normal and customary manner. The Trustee shall cancel and dispose of the Global
Certificate upon its exchange in full for Definitive Certificates and shall
deliver the cancelled Global Certificate to the applicable Certificateholder and
a certificate of cancellation to the Sellers' Representative.
The Trustee shall execute Bearer Certificates and Registered Certificates
in such amounts and at such times as are necessary to enable the Trustee or the
Transfer Agent and Registrar to fulfill its responsibilities under this Master
Trust Agreement and the Certificates.
(b) None of the Sellers may sell, transfer or pledge its interest
in all or a portion of the Sellers' Certificate to any Person, other than to
TMM.
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(c) No Holder of a Subordinated Certificate may sell, transfer or
pledge its interest in all of a portion of such Subordinated Certificate to any
Person, other than to TMM.
(d) Unless otherwise provided in the related Supplement,
registration of transfer of Registered Certificates containing a legend relating
to the restrictions on transfer of such Registered Certificates (which legend
shall be as set forth in the Supplement relating to such Investor Certificates)
shall be effected only if the conditions set forth in such related Supplement
are satisfied.
Whenever a Registered Certificate containing the legend set forth in the
related Supplement is presented to the Transfer Agent and Registrar for
registration of transfer, the Transfer Agent and Registrar shall promptly seek
instructions from the Servicer regarding such transfer. The Transfer Agent and
Registrar and the Trustee shall be entitled to receive written instructions
signed by a Responsible Officer of the Servicer prior to registering any such
transfer or authenticating new Registered Certificates, as the case may be. The
Servicer hereby agrees to indemnify the Transfer Agent and Registrar and the
Trustee and to hold each of them harmless against any loss, liability or expense
incurred without gross negligence or bad faith on their part arising out of or
in connection with actions taken or omitted by them in reliance on any such
written instructions furnished pursuant to this SECTION 5.3(d).
(e) If Investor Certificates of a Series are issued in the form of
U.S. Registered Certificates and Regulation S Certificates, and if a Holder of a
U.S. Registered Certificate or a Certificate Owner holding a beneficial interest
in a U.S. Registered Certificate wishes at any time to transfer its interest in
such U.S. Registered Certificate to a Person who wishes to take delivery thereof
in the form of an interest in a Regulation S Certificate, such Holder or
Certificate Owner may, subject to the rules and procedures of The Depository
Trust Company and the provisions of this SECTION 5.3(e), transfer or cause the
transfer of such interest in such U.S. Registered Certificate for an equivalent
beneficial interest in the Regulation S Certificate. Upon receipt by the
Transfer Agent and Registrar of (i) instructions given in accordance with the
procedures of The Depository Trust Company from an agent member directing the
Transfer Agent and Registrar to credit or cause to be credited a beneficial
interest in the Regulation S Certificate in an amount equal to the interest in
the corresponding U.S. Registered Certificate to be transferred, (ii) a written
order given in accordance with the procedures of The Depository Trust Company by
the transferee of such interest in the U.S. Registered Certificate to be
transferred containing information regarding the account to be credited with
such increase and the name of such account, and (iii) such other certifications
as are required pursuant to SECTION 5.3(a) above, the Transfer Agent and
Registrar shall record in the Certificate Register a reduction of the
Certificate Balance of such U.S. Registered Certificate by the aggregate
principal amount of the interest in such U.S. Registered Certificate to be so
transferred and an increase of the Certificate Balance of such Regulation S
Certificate, and shall instruct The Depository Trust Company or its nominee to
make corresponding changes to its records in respect of such U.S. Registered
Certificate and Regulation S Certificate.
(f) If Investor Certificates of a Series are issued in the form of
U.S. Registered Certificates and Regulation S Certificates, and if a Certificate
Owner holding a beneficial interest in a Regulation S Certificate wishes at any
time to transfer its interest in such Regulation S Certificate to a Person who
wishes to take delivery thereof in the form of an
63
interest in a U.S. Registered Certificate, such Certificate Owner may, subject
to the rules and procedures of Euroclear or Clearstream and The Depository Trust
Company, as applicable, and the provisions of this SECTION 5.3(f), transfer or
cause the transfer of such interest in such Regulation S Certificate for an
equivalent interest in a U.S. Registered Certificate. Upon receipt by the
Transfer Agent and Registrar of (i) instructions given in accordance with the
procedures of Euroclear or Clearstream and The Depository Trust Company, as
applicable, directing the Transfer Agent and Registrar to credit or cause to be
credited a beneficial interest in a U.S. Registered Certificate in an amount
equal to the interest in the Regulation S Certificate to be transferred, (ii) a
written order given in accordance with the procedures of The Depository Trust
Company by the transferee of such interest in the Regulation S Certificate to be
transferred containing information regarding the account to be debited with such
decrease and the name of such account and (iii) such other certifications as are
required pursuant to SECTION 5.3(a) above, the Transfer Agent and Registrar
shall record in the Certificate Register a reduction of the Certificate Balance
of such Regulation S Certificate by the aggregate principal amount of the
interest in such Regulation S Certificate to be so transferred or an increase of
the Certificate Balance of a U.S. Registered Certificate, as the case may be, in
the amount of the interest in the corresponding Regulation S Certificate
transferred, and shall instruct The Depository Trust Company or its nominee to
make corresponding changes to its records in respect of such Regulation S
Certificate and U.S. Registered Certificate, if applicable.
Section 5.4 MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES. If (a) any
mutilated Certificate (together, in the case of Bearer Certificates, with all
unmatured Coupons, if any, pertaining thereto) is surrendered to the Transfer
Agent and Registrar, or the Transfer Agent and Registrar receives evidence to
its satisfaction of the destruction, loss or theft of any Certificate and (b)
there is delivered to the Transfer Agent and Registrar and the Trustee such
security or indemnity as may be required by them to save each of them harmless,
then, in the absence of a BONA FIDE purchaser having possession of such
Certificate, the Trustee shall execute and authenticate and (unless the Transfer
Agent and Registrar is different from the Trustee, in which case the Transfer
Agent and Registrar shall) deliver (in compliance with applicable law), in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate of like tenor and in an aggregate amount equal to
the portion of the Certificate Balance represented by such mutilated, destroyed,
lost or stolen Certificate. In connection with the issuance of any new
Certificate under this SECTION 5.4, the Trustee or the Transfer Agent and
Registrar may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee and the Transfer Agent
and Registrar) connected therewith. Any duplicate Certificate issued pursuant to
this SECTION 5.4 shall constitute complete and indefeasible evidence of
ownership in the Trust, as if originally issued, whether or not the lost, stolen
or destroyed Certificate shall be found at any time.
Section 5.5 PERSONS DEEMED OWNERS. Prior to due presentation of a
Certificate (other than a Bearer Certificate) for registration of transfer, the
Trustee, the Paying Agent, the Transfer Agent and Registrar and any agent of any
of them may treat the Person in whose name any Certificate is registered as the
owner of such Certificate for the purpose of receiving distributions, or for any
other deliveries (including but not limited to notices pursuant to SECTION 10.5)
pursuant to this Master Trust Agreement and the related Supplement, and none of
the Trustee, the Paying Agent, the Transfer Agent and Registrar nor any agent of
any of them shall
64
be affected by any notice to the contrary; PROVIDED, HOWEVER, that in
determining whether the holders of Investor Certificates evidencing the
requisite Certificate Balance have given any request, demand, authorization,
direction, notice, consent or waiver hereunder and for purposes of the
definitions of "Cumulative Required Investor Certificateholders", "Cumulative
Required Investor Certificateholders (Super Majority)", "Series Required
Investor Certificateholders" and "Series Required Investor Certificateholders
(Super Majority)", Certificates owned by the Sellers, the Servicer, or any
Affiliate thereof and Subordinated Certificates held by any Subordinated
Certificate Purchaser shall be disregarded and deemed not to be outstanding,
except that, in determining whether the Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Investor Certificates which a Responsible Trustee Officer in the
Corporate Trust Office of the Trustee knows to be so owned shall be so
disregarded.
In the case of a Bearer Certificate, the Trustee, the Paying Agent, the
Transfer Agent and Registrar and any agent of any of them may treat the bearer
of a Bearer Certificate or Coupon as the owner of such Bearer Certificate or
Coupon for the purpose of receiving distributions under this Master Trust
Agreement and the related Supplement, and neither the Trustee, the Paying Agent,
the Transfer Agent and Registrar nor any agent of any of them shall be affected
by any notice to the contrary.
Section 5.6 APPOINTMENT OF PAYING AGENT.
(a) A paying agent (the "PAYING AGENT") shall make distributions
to Investor Certificateholders from the appropriate account or accounts
maintained for the benefit of Certificateholders as specified in the related
Supplement for any Series pursuant to ARTICLE IV hereof. The Paying Agent shall
have the revocable power to withdraw funds from such appropriate account or
accounts for the purpose of making distributions referred to above. The Trustee
may revoke such power and remove the Paying Agent, in its sole discretion. The
Paying Agent, unless the Supplement with respect to any Series states otherwise,
shall initially be the Person acting as the Trustee. The Trustee shall be
permitted to resign as Paying Agent upon thirty (30) days written notice to the
Servicer and Sellers' Representative effective only upon the appointment of
another Paying Agent. In the event that the Trustee shall cease to be the Paying
Agent, the Cumulative Required Investor Certificateholders shall appoint a
successor to act as Paying Agent (which shall be a bank or trust company). The
Trustee shall cause such successor Paying Agent or any additional Paying Agent
appointed by the Trustee to execute and deliver to the Trustee an instrument in
which such successor Paying Agent or additional Paying Agent shall agree with
the Trustee that as Paying Agent, such successor Paying Agent or additional
Paying Agent will hold all sums, if any, held by it for payment to the Investor
Certificateholders in trust for the benefit of the Investor Certificateholders
entitled thereto until such sums shall be paid to such Certificateholders. The
Paying Agent shall return all unclaimed funds to the Collection Account or such
other Series Account established pursuant to the Supplement with respect to any
Series at the times and in the manner provided in the related Supplement and
upon removal of a Paying Agent, such Paying Agent shall return all funds in its
possession to the Collection Account or such other account established pursuant
to the Supplement with respect to any Series at the times and in the manner
provided in the related Supplement. The provisions of SECTIONS 8.1, 8.2 and 8.3
below shall apply to the Trustee also in its roles as Paying Agent and Transfer
Agent and Registrar for so long as the Trustee shall act as Paying Agent or
Transfer Agent and
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Registrar. Any reference in this Master Trust Agreement to the Paying Agent
shall include any co-paying agent unless the context requires otherwise.
If specified in the related Supplement for any Series, so long as the
Investor Certificates of such Series are outstanding, the Servicer shall appoint
a co-paying agent in New York City reasonably acceptable to the Sellers for such
Series (for Registered Certificates only) or any other city designated in such
Supplement which, if and so long as any Series of Investor Certificates is
listed on the Luxembourg Stock Exchange or other stock exchange and such
exchange so requires, shall be in Luxembourg or the location required by such
other stock exchange.
(b) The Trustee shall cause the Paying Agent (other than itself)
to execute and deliver to the Trustee an instrument whereby such Paying Agent
shall agree with the Trustee that such Paying Agent will hold all sums, if any,
held by it for payment to the Certificateholders in trust for the benefit of the
Certificateholders entitled thereto until such sums shall be paid to such
Certificateholders and shall agree, and if the Trustee is the Paying Agent it
hereby agrees, that it shall comply with all requirements of the Internal
Revenue Code regarding the withholding by the Trustee of payments in respect of
United States income taxes due from Investor Certificateholders or Certificate
Owners and will, where required to avoid withholding of Taxes, obtain the
following from each Certificateholder that is not a "United States person" as
defined in Section 7701(a)(30) of the Internal Revenue Code of 1986, as amended
(or a copy of IRS Form W-8IMY from an intermediary who holds such forms), such
forms, documents, certificates and other documentation as may be required under
the Code and applicable regulations to establish an exemption from withholding
of Taxes, including, without limitation:
(i) IRS Form W-8BEN or successor form signed under
penalties of perjury by the beneficial owner of Certificates stating that
the Certificateholder or Certificate Owners is not a U.S. person and
providing such Certificateholder's name and address; or
(ii) IRS Form W-8BEN or successor form signed by the
beneficial owner of Certificates or such owner's agent claiming exemption
from withholding under an applicable tax treaty; or
(iii) IRS Form W-8ECI or successor form signed by the
beneficial owner of Certificates or such owner's agent claiming exemption
from withholding of tax on income connected with the conduct of a trade or
business in the U.S., pursuant to the applicable procedures in effect at
the relevant time.
(c) The Trustee shall also obtain from all Certificateholders
(other than Certificateholders that are corporations, tax-exempt organizations,
qualified pension and profit-sharing trusts, individual retirement accounts or
nonresident aliens and that, in each case, establish an exemption from backup
withholding in accordance with applicable U.S. tax regulations) under penalties
of perjury, a certificate on IRS Form W-9 containing the holder's name, address,
correct federal taxpayer identification number and a statement that such
Certificateholder is not subject to backup withholding. Prior to each
Distribution Date occurring after the Servicer determines that any Taxes, other
than U.S. withholding taxes, are imposed on
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payments from the Trust to the Certificateholders, the Servicer shall promptly
furnish to the Trustee a certificate of a Responsible Officer of the Servicer
specifying the amount required to be deducted or withheld on payments to
Certificateholders on any of the Certificates due on such Distribution Date for
or on account of any Taxes, other than U.S. withholding taxes, imposed on
payments to be made to any Certificateholder and the Trustee or the Paying Agent
shall cause such amount to be paid to the appropriate governmental authorities.
The Sellers' Representative (in its capacity as Servicer, if it is the Servicer)
agrees to indemnify each of the Trustee and Paying Agent for and to hold each
harmless against any loss, liability or reasonable expense incurred without
gross negligence, negligence in the handling of funds or willful misconduct on
its part, arising out of or in connection with actions taken or not taken by it
in reliance on any certificate furnished pursuant to SECTION 5.6(b) or this
SECTION 5.6(c) or the failure to furnish any such certificate. The obligation of
the Servicer under the preceding sentence shall survive payment of all the
Certificates, the satisfaction and discharge of this Master Trust Agreement and
the resignation or removal of the Trustee and any Paying Agent.
Section 5.7 ACCESS TO LIST OF CERTIFICATEHOLDERS' NAMES AND ADDRESSES.
(a) The Trustee will furnish or cause to be furnished by the
Transfer Agent and Registrar to the Servicer or the Paying Agent, with a copy to
Sellers' Representative, within five (5) Business Days after receipt by the
Trustee of a request therefor from the Servicer or the Paying Agent,
respectively, in writing, a list of the names and addresses of the Investor
Certificateholders (other than Bearer Certificateholders) as of the most recent
Record Date for payment of distributions to Investor Certificateholders.
(b) Unless otherwise provided in the related Supplement, at any
time after Definitive Certificates have been issued with respect to a Series, if
the Holders of Investor Certificates of such Series evidencing not less than 10%
of the Certificate Balance of such Series (the "APPLICANTS") apply in writing to
the Trustee and such application states that the Applicants desire to
communicate with other Investor Certificateholders of such Series or, if such
Applicant certifies that it is necessary for it to communicate with other
Investor Certificateholders of another Series with respect to an amendment,
consent or waiver, another Series, with respect to their rights under this
Master Trust Agreement or under the Investor Certificates and is accompanied by
a copy of the communication which such Applicants propose to transmit, then the
Trustee, after having been adequately indemnified by such Applicants for its
costs and expenses and having given to the Servicer a copy of such application
and proposed communication, shall afford or shall cause the Transfer Agent and
Registrar to afford such Applicants access during normal business hours to the
most recent list of Certificateholders (other than Bearer Certificateholders) of
such Series or, if applicable, such other Series, held by the Trustee, within a
reasonable time but in any event not to exceed ten (10) Business Days after the
receipt of such application. Such list shall be as of a date no more than
forty-five (45) days prior to the date of receipt of such Applicants' request.
Every Certificateholder, by receiving and holding a Certificate, agrees with the
Trustee that neither the Trustee, the Transfer Agent and Registrar, nor any of
their respective agents shall be held accountable by reason of the disclosure of
any such information as to the names and addresses of the Certificateholders
hereunder, regardless of the source from which such information was obtained.
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(c) Unless otherwise provided in the related Supplement, if the
Depository with respect to any Series of Certificates has procedures for
providing to the Certificate Owners of such Series a list of the other
Certificate Owners of such Series and, at any time, the Certificate Owners whose
Book-Entry Certificates evidence beneficial interests in Investor Certificates
of such Series aggregating not less than 10% of the Certificate Balance of such
Series deliver to the Trustee a written application (containing a certification
by an officer of each such Certificate Owner stating that such applicant is a
Certificate Owner, on which certification the Trustee may conclusively rely to
establish that such party is a Certificate Owner) and such application states
that such Certificate Owners desire to communicate with other Certificate Owners
of such Series with respect to their rights under this Master Trust Agreement or
under the Investor Certificates and is accompanied by a copy of the
communication which such Certificate Owners propose to transmit, then the
Trustee, after having been adequately indemnified by such Certificate Owners for
its costs and expenses and having given to the Servicer a copy of such
application and proposed communication, shall request the Depository to deliver
to such Certificate Owners a list of the other Certificate Owners of such Series
holding through the Depository.
Section 5.8 AUTHENTICATING AGENT.
(a) The Trustee may appoint one or more authenticating agents with
respect to the Certificates which shall be authorized to act on behalf of the
Trustee in authenticating the Certificates in connection with the issuance,
delivery, registration of transfer, exchange or repayment of the Certificates.
Whenever reference is made in this Master Trust Agreement to the authentication
of Certificates by the Trustee or the Trustee's certificate of authentication,
such reference shall be deemed to include authentication on behalf of the
Trustee by an authenticating agent and a certificate of authentication executed
on behalf of the Trustee by an authenticating agent.
(b) Any institution succeeding to the corporate agency business of
an authenticating agent shall continue to be an authenticating agent without the
execution or filing of any paper or any further act on the part of the Trustee
or such authenticating agent.
(c) An authenticating agent may at any time resign by giving
written notice of resignation to the Trustee and to the Sellers. The Trustee may
at any time terminate the agency of an authenticating agent by giving notice of
termination to such authenticating agent and to the Sellers. Upon receiving such
a notice of resignation or upon such a termination, the Trustee may appoint a
successor authenticating agent. Any successor authenticating agent upon
acceptance of its appointment hereunder shall become vested with all the rights,
powers and duties of its predecessor hereunder, with like effect as if
originally named as an authenticating agent.
(d) The Trustee agrees to pay each authenticating agent from time
to time reasonable compensation for its services under this SECTION 5.8, and the
Trustee shall be reimbursed for such fees by the Sellers.
(e) The provisions of SECTIONS 8.1 and 8.2 below shall be
applicable to any authenticating agent.
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(f) Pursuant to an appointment made under this SECTION 5.8, the
Certificates may have endorsed thereon, in lieu of the Trustee's certificate of
authentication, an alternate certificate of authentication in substantially the
following form:
This is one of the certificates described in the Master Trust Agreement.
--------------------------------------------------
as Authenticating Agent for the Trustee,
By
------------------------------------------------
Authorized Signatory
Section 5.9 TENDER OF SELLERS' CERTIFICATE.
(a) The Holder of the Sellers' Certificate may tender the Sellers'
Certificate to the Trustee in order to cause to be issued one or more newly
issued Series of Investor Certificates to new Investor Certificateholders and
except with respect to the initial Series of Investor Certificates issued
hereunder, reissued Sellers' Certificate to be reissued to the Sellers (any such
tender, an "EXCHANGE"). The Holder of the Sellers' Certificate may perform an
Exchange by notifying the Trustee, in writing at least three (3) Business Days
in advance (an "EXCHANGE NOTICE") of the date upon which the Exchange is to
occur (an "EXCHANGE DATE"). Any Exchange Notice shall state the designation of
any Series to be issued on the Exchange Date and, with respect to each such
Series: (i) its Initial Certificate Balance (or the method for calculating such
Initial Certificate Balance), which amount must meet all applicable Receivables
Coverage Ratio and Generation Coverage Ratio tests approved by the Series
Required Investor Certificateholders of each Series then outstanding, (ii) its
Certificate Rate (or the method for allocating interest payments or other cash
flow to such Series), if any, and (iii) the Enhancement Provider, if any, with
respect to such Series. On the Exchange Date, the Trustee shall only execute,
authenticate and deliver any such Series of Investor Certificates upon delivery
to it of the following: (i) the items required to be delivered pursuant to
SECTION 5.2(b) above with respect to such new Series, (ii) the applicable
Enhancement, if any, (iii) the agreement, if any, executed by the Sellers and
the Enhancement Provider, pursuant to which the Enhancement Provider agrees to
provide the Enhancement, if any, with respect to such Series, (iv) the existing
Sellers' Certificate and (v) the approval of each Investor Certificateholder as
required pursuant to SECTION 5.9(c). Upon satisfaction of such conditions, the
Trustee shall cancel such existing Sellers' Certificate and execute,
authenticate and deliver such new Series of Investor Certificates and a new
Sellers' Certificate, dated the Exchange Date.
(b) In conjunction with an Exchange, the parties hereto shall
execute a Supplement agreeable to such parties, which shall specify the relevant
terms with respect to any Series of Investor Certificates, which may include
without limitation: (i) its name or designation, (ii) its Initial Certificate
Balance or the method of calculating its Initial Certificate Balance, (iii) the
Certificate Rate (or formula for the determination thereof), (iv) the Closing
Date, (v) the interest payment date or dates and the date or dates from which
interest shall accrue, (vi) the name of the Clearing Agency or Foreign Clearing
Agency, if any, (vii) the method of allocating Collections, the Receivable
Shortfall Payments and other payments required to be made by the Sellers under
such Supplement to the Certificateholders of such Series, (viii) the names of
any
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accounts to be used by such Series and the terms governing the operation of any
such account, (ix) the terms of any Enhancement with respect to such Series and
the Enhancement Provider, if applicable, (x) the terms on which the Certificates
of such Series may by offered and sold, repurchased by each Seller, subject to
any restrictions then set forth in the Transaction Documents, or resold or
remarketed to other investors, (xi) the Expected Final Distribution Date of the
Series, (xii) any deposit into any Series Account maintained for the benefit of
the Trustee and the Certificateholders of such Series, (xiii) the number of
Classes of such Series, and if more than one Class, the rights and priorities of
each such Class, (xiv) the extent to which the Investor Certificates will be
issuable in temporary or permanent global form, and in such case, the Depository
for such Global Certificate or Certificates, the terms and conditions, if any,
upon which such Global Certificate may be exchanged in whole or in part for
Definitive Certificates, and the manner in which any interest payable on a
temporary or Global Certificate will be paid, (xv) whether the Investor
Certificates may be issued in bearer form and any limitations imposed thereon,
(xvi) whether any fees will be included in the funds available to Investor
Certificateholders of such Series, (xvii) the priority of any Series with
respect to any other Series, (xviii) the rights of the Holder of the Sellers'
Certificate that have been transferred to the Investor Certificateholders of
such Series, (xix) the principal payment period with respect to such Series and
(xx) any other relevant terms of such Series (all such terms, the "PRINCIPAL
TERMS" of such Series). So long as the Series 2001-A Certificates are
outstanding, neither the Series 2002-A Certificates nor any other Series or the
applicable Supplement for any such Series issued after the Initial Closing Date
shall provide for (i) an earlier Expected Final Distribution Date or other
maturity, (ii) a greater level of amortization, (iii) any additional or more
restrictive covenants or Rapid Amortization Events, (iv) any additional rights
or remedies or (v) additional optional or obligatory repurchase rights, than
those set forth in the Series 2002-A Supplement in the form attached hereto as
EXHIBIT P.
(c) No new Series shall be issued after the initial Series unless
approved by each Investor Certificateholder of each Series then in existence
prior to the issuance of such new Series.
Section 5.10 GLOBAL CERTIFICATE; EURO-CERTIFICATE EXCHANGE DATE. If
specified in the related Supplement for any Series, the Investor Certificates
may be initially issued in the form of a single temporary Global Certificate
(the "GLOBAL CERTIFICATE") in bearer form, without interest coupons, in the
denomination of the Initial Certificate Balance and substantially in the form
attached to the related Supplement. Unless otherwise specified in the related
Supplement, the provisions of this SECTION 5.10 shall apply to such Global
Certificate. The Global Certificate will be executed and authenticated by the
Trustee upon the same conditions, in substantially the same manner and with the
same effect as the Definitive Certificates. The Global Certificate may be
exchanged in the manner described in the related Supplement for permanent
Registered and/or Bearer Certificates in definitive form (the "DEFINITIVE
EURO-CERTIFICATES").
Section 5.11 BOOK-ENTRY CERTIFICATES. Unless otherwise provided in any
related Supplement, the Investor Certificates, upon original issuance, shall be
issued in the form of typewritten Certificates representing the Book-Entry
Certificates, to be delivered to the depository specified in such Supplement
(the "DEPOSITORY") which shall be the Clearing Agency or Foreign Clearing
Agency, as the case may be, by or on behalf of such Series. The Investor
Certificates of each Series shall unless otherwise provided in the related
Supplement initially be
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registered on the Certificate Register in the name of the nominee of the
Clearing Agency or Foreign Clearing Agency, as the case may be. No Certificate
Owner will receive a registered definitive certificate (a "DEFINITIVE
CERTIFICATE") representing such Certificate Owner's interest in the related
Series of Investor Certificates, except as provided in SECTION 5.13 below.
Unless otherwise provided in any related Supplement, unless and until Definitive
Certificates have been issued to Certificate Owners pursuant to SECTION 5.13
below:
(a) the provisions of this SECTION 5.11 shall be in full force and
effect with respect to each such Series;
(b) the Sellers, the Servicer, the Paying Agent, the Transfer
Agent and Registrar and the Trustee may deal with the Clearing Agency and the
Clearing Agency Participants for all purposes (including the making of
distributions on the Investor Certificates of each such Series) as the
authorized representatives of the Certificate Owners; PROVIDED, HOWEVER, that
the Sellers, the Servicer, the Paying Agent, the Transfer Agent and Registrar
and the Trustee shall treat the Holder thereof as the absolute owner thereof for
all purposes (including the making of distributions on such Registered
Certificate).
(c) to the extent that the provisions of this SECTION 5.11
conflict with any other provisions of this Master Trust Agreement, the
provisions of this SECTION 5.11 shall control with respect to each such Series;
and
(d) the rights of Certificate Owners of each such Series shall be
exercised only through the Clearing Agency and the applicable Clearing Agency
Participants and shall be limited to those established by law and agreements
between such Certificate Owners and the Clearing Agency and/or the Clearing
Agency Participants. Pursuant to the Depository Agreement applicable to a
Series, unless and until Definitive Certificates of such Series are issued
pursuant to SECTION 5.13 below, the initial Clearing Agency will make book-entry
transfers among the Clearing Agency Participants and receive and transmit
distributions of principal and interest on the Investor Certificates to such
Clearing Agency Participants.
Section 5.12 NOTICES TO CLEARING AGENCY. Whenever notice or other
communication to the Certificateholders is required under this Master Trust
Agreement, unless and until Definitive Certificates shall have been issued to
Certificate Owners pursuant to SECTION 5.13, then, with respect to Certificate
Owners, the Trustee shall give all such notices and communications specified
herein to be given to Holders of the Investor Certificates to the Clearing
Agency for distribution to Certificate Owners.
Section 5.13 DEFINITIVE CERTIFICATES. If (a) (i) any Seller advises the
Trustee in writing that the Clearing Agency is no longer willing or able to
discharge properly its responsibilities under the applicable Depository
Agreement, and (ii) the Trustee or such Seller is unable to locate a qualified
successor Clearing Agency, or (b) such Seller, at its option, advises the
Trustee in writing that it elects to terminate the book-entry system through the
Clearing Agency with respect to any Series of Certificates, the Clearing Agency
shall notify all Certificate Owners of such Series, through the applicable
Clearing Agency Participants, of the occurrence of any such event and of the
availability of Definitive Certificates to Certificate Owners of such Series
requesting the same. Upon surrender to the Trustee of the Investor Certificates
representing the
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Book-Entry Certificates of such Series by the applicable Clearing Agency,
accompanied by written registration instructions from the applicable Clearing
Agency for registration, the Trustee shall execute, authenticate and deliver to
the Certificate Owners the Definitive Certificates of such Series in authorized
denominations. Neither the Sellers nor the Trustee shall be liable for any delay
in delivery of such instructions and may conclusively rely on, and shall be
protected in relying on, such instructions. Upon the issuance of Definitive
Certificates of such Series, the Trustee shall recognize the Holders of the
Definitive Certificates of such Series as Certificateholders of such Series
hereunder.
Section 5.14 SUBORDINATION OF SUBORDINATED CERTIFICATES AND SELLERS'
CERTIFICATE.
(a) All payments with respect to the Sellers' Certificate and any
Subordinated Certificate (the "SUBORDINATED PAYMENT OBLIGATIONS") shall be
postponed and subordinated to the payment in full of all amounts due under the
Investor Certificates (the "SENIOR PAYMENT OBLIGATIONS"), and no payments or
other distributions whatsoever in respect of any Subordinated Payment
Obligations shall be made, nor shall any Collections or any other Trust Assets
be applied to the purchase or other acquisition or retirement of any
Subordinated Payment Obligations.
(b) In the event of any insolvency relating to the Trust, the
Guarantor, any Seller or TMM Multimodal or, after its formation, Newco or
affecting any of their property (whether voluntary or involuntary, partial or
complete, and whether in bankruptcy, insolvency or receivership, or upon an
assignment for the benefit of creditors), or any other marshalling of the assets
and liabilities of the Trust, the Guarantor, any Seller, TMM Multimodal or,
after its formation, Newco or any sale of all or substantially all of the assets
of the Trust, the Guarantor, any Seller, TMM Multimodal or, after its formation,
Newco or otherwise, the Senior Payment Obligations, including all amounts
accruing under the Transaction Documents, whether for interest, fees and costs,
or otherwise, on or after the occurrence of such event, and notwithstanding
that, by operation of Sections 502(b) and 506 of the Bankruptcy Code or other
law governing such proceeding, such amounts may not constitute enforceable
claims against or be payable during or after such proceeding by the entity that
is the subject of such proceeding, shall first be paid in full before the
Subordinated Certificateholder shall be entitled to receive and to retain any
payment or distribution in respect of the Subordinated Payment Obligations and,
in order to implement the foregoing: (i) all payments and distributions of any
kind or character in respect of the Subordinated Payment Obligations to which
each Holder of a Subordinated Certificate or Sellers' Certificate would be
entitled if the Subordinated Payment Obligations were not subordinated, or
subordinated and pledged or assigned pursuant to the Master Trust Agreement,
shall be made directly to the Trustee; (ii) to the extent permitted by
Applicable Law, each Holder of a Subordinated Certificate or Sellers'
Certificate shall promptly file a claim or claims, in the form required in such
proceedings, for the full outstanding amount of the Subordinated Payment
Obligations, and shall cause said claim or claims to be approved and all
payments and other distributions in respect thereof to be made directly to the
Trustee; and (iii) each Holder of a Subordinated Certificate or Sellers'
Certificate hereby irrevocably agrees that the Trustee may, at its sole
discretion, in the name of the undersigned or otherwise, demand, ▇▇▇ for,
collect, receive and receipt for any and all such payments or distributions, and
file, prove and vote or consent in any such proceedings with respect to any and
all claims of each Holder of a
72
Subordinated Certificate or Sellers' Certificate relating to the Subordinated
Payment Obligations for the benefit of the Senior Payment Obligations.
(c) In the event that any Subordinated Certificateholder or any
Seller receives any payment or other distribution of any kind or character from
any source whatsoever, in respect of any of the Subordinated Payment
Obligations, such payment or other distribution shall be received in trust for
the Trustee and promptly turned over by such Subordinated Certificateholder or
Seller to the Trustee for the benefit of the Senior Payment Obligations and
shall be allocated by the Trustee and distributed by the Paying Agent in the
order of application and distribution set forth in Sections 4.3 and 4.4 of each
of the Series 2001-A Supplement and Series 2002-A Supplement or equivalent
allocation and distribution sections of another Supplement. Each Subordinated
Certificateholder or Seller, as applicable, will ▇▇▇▇ its books and records so
as clearly to indicate that the Subordinated Payment Obligations are
subordinated in accordance with the terms of the Subordinated Certificate or
Sellers' Certificate, as applicable, and the Master Trust Agreement, and will
cause to be clearly inserted in any certificate, promissory note or other
instrument which at any time evidences any of the Subordinated Payment
Obligations a statement to the effect that the payment thereof is subordinated
in accordance with the terms of such Subordinated Certificate, the Sellers'
Certificate and the Master Trust Agreement. TMM will cause each Subordinated
Certificateholder and each other Seller to execute such further documents or
instruments and take such further action as the Trustee may reasonably from time
to time request or as may otherwise be necessary in order to carry out the
intent of the Subordinated Certificate or Sellers' Certificate.
(d) All payments and distributions received by the Trustee in
respect of the Subordinated Payment Obligations, to the extent received in or
converted into cash, may be applied by the Trustee first to the payment of any
and all expenses (including reasonable attorneys' fees and legal expenses) paid
or incurred by the Trustee in enforcing its rights hereunder, or in endeavoring
to collect or realize upon any of the Subordinated Payment Obligations or any
security therefor, and any balance thereof shall, solely as between the
Subordinated Certificateholder and the Trustee, shall be allocated by the
Trustee and distributed by the Paying Agent in the order of application and
distribution set forth in Sections 4.3 and 4.4 of each of the Series 2001-A
Supplement and Series 2002-A Supplement or equivalent allocation and
distribution sections of another Supplement, toward the payment of the Senior
Payment Obligations remaining unpaid; and, notwithstanding any such payments or
distributions received by the Trustee in respect of the Subordinated Payment
Obligations and so applied by the Trustee toward the payment of the Senior
Payment Obligations, the Subordinated Certificate and Sellers' Certificate shall
be subrogated to the then existing rights of the Trustee, if any, in respect of
the Senior Payment Obligations, only at such time as the Senior Payment
Obligations shall have been paid in full.
ARTICLE VI
THE SERVICER
Section 6.1 ACCEPTANCE OF APPOINTMENT AND OTHER MATTERS RELATING TO THE
SERVICER.
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(a) TMM is hereby appointed as Servicer on behalf of the Trust
under a collection mandate from the Trust under Chapter I of Title Third of Book
Second of the Mexican Commerce Code. TMM hereby agrees to act as the Servicer
under this Master Trust Agreement. Each Investor Certificateholder, by its
acceptance of its Investor Certificate, consents to TMM acting as Servicer.
(b) The Servicer shall have full power and authority, acting alone
or through any party properly designated by it hereunder, to do any and all
things in connection with performing its obligations as Servicer hereunder which
it may deem necessary or desirable. Without limiting the generality of the
foregoing, the Servicer is hereby authorized and empowered (i) to cooperate with
the Trustee in conducting any enforcement proceedings with respect to the
Purchased Receivables and (ii) to make any filings, reports, notices,
applications, registrations with, and to seek any consents or authorizations
from the CNBV, the Securities and Exchange Commission and any state securities
authority on behalf of the Trust as may be necessary or advisable to comply with
any Mexican, U.S. federal or state securities or reporting requirements and
laws. The Trustee shall furnish the Servicer, at TMM's sole cost and expense,
with any documents in its possession which are reasonably requested by any
Seller or the Servicer and are reasonably necessary or appropriate to enable the
Servicer to carry out its servicing and administrative duties hereunder.
(c) The Servicer shall be required to pay for its own account the
expenses of performing its obligations as Servicer under this Master Trust
Agreement and shall not be entitled to any payment or reimbursement therefor,
other than any fee payable to the Servicer as specifically set forth and payable
pursuant to the terms of any Supplement. The Servicer's expenses include the
reasonable fees and disbursements of independent public accountants and all
other expenses incurred by the Servicer in connection with its activities
hereunder.
Section 6.2 REPRESENTATIONS AND WARRANTIES OF THE SERVICER. TMM, as
Servicer, hereby makes the following representations and warranties on and as of
the Document Closing Date, the Initial Closing Date and each subsequent Closing
Date, including the Third Closing Date:
(a) ORGANIZATION. The Servicer is a Mexican corporation duly
organized and validly existing under the laws of Mexico and has full corporate
power, authority and legal right to own its properties and conduct its business
as such properties are presently owned and such business is presently conducted,
and to execute, deliver and perform its obligations under this Master Trust
Agreement in all material respects.
(b) DUE QUALIFICATION. The Servicer is not required to qualify or
register as a foreign corporation in any state of the United States in order to
act as Servicer as required by this Master Trust Agreement and has obtained all
licenses and approvals and made all filings materially necessary in order to so
act as Servicer as are required under any Requirement of Law. If the Servicer
shall be required by any Requirement of Law to so qualify or register or obtain
such license or approval, then it shall do so unless its failure to do so is not
reasonably likely to result in a Material Adverse Effect.
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(c) DUE AUTHORIZATION. The execution, delivery, and performance of
any Transaction Document to which it is a party and the consummation of the
transactions therein by the Servicer have been duly authorized by the Servicer
by all necessary corporate action on the part of the Servicer.
(d) BINDING OBLIGATION. Any Transaction Document to which it is a
party constitutes a legal, valid and binding obligation of the Servicer,
enforceable in accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, CONCURSO MERCANTIL, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
affecting the enforcement of creditors' rights in general, or as such
enforceability may be limited by general principles of equity (whether
considered in a suit at law or in equity).
(e) NO CONFLICT. The execution and delivery of any Transaction
Document to which it is a party and the fulfillment of the terms thereof by the
Servicer will not conflict with or result in the breach of any of the material
terms and provisions of, or constitute (with or without notice or lapse of time
or both) a default under any indenture, contract, agreement, mortgage, deed of
trust or other instrument to which the Servicer is a party or by which it or any
of its properties is bound, except for any conflict, breach or default which is
not reasonably likely to result in a material adverse effect on the
Certificateholders or Certificate Owners or the ability of the Servicer to
perform its obligations under any Transaction Document to which it is a party.
(f) NO VIOLATION. The execution and delivery of any Transaction
Document to which it is a party by the Servicer, the performance of the
transactions contemplated by any Transaction Document to which it is a party and
the fulfillment of the terms hereof and thereof applicable to the Servicer, will
not conflict with or violate any certificate of incorporation, articles of
association, by-laws, ACTA CONSTITUTIVA, ESTATUTOS SOCIALES, or other
organizational or governing documents of the Servicer or any law, treaty, rule
or regulation, or determination of an arbitrator or Governmental Authority
applicable to or binding upon the Servicer, except for any conflict or violation
which is not reasonably likely to result in a Material Adverse Effect.
(g) NO PROCEEDINGS. There are no proceedings or investigations
pending or, to the best knowledge of the Servicer, threatened against the
Servicer, before any court, regulatory body, administrative agency or other
tribunal or governmental instrumentality seeking any determination or ruling
that, in the reasonable judgment of the Servicer, are reasonably likely to
result in a material adverse effect on the Certificateholders or Certificate
Owners or the ability of the Servicer to perform its obligations under any
Transaction Document to which it is a party.
(h) ALL CONSENTS REQUIRED. All approvals, authorizations,
consents, orders or other actions of any Person or of any Governmental Authority
or official required in connection with the execution and delivery of any
Transaction Document to which the Servicer is a party, the performance by the
Servicer of the transactions contemplated by any Transaction Document to which
it is a party and the fulfillment of the terms thereof have been obtained except
to the extent the failure to obtain the same is not reasonably likely to result
in a material adverse effect on the Certificateholders or Certificate Owners or
the ability of the Servicer to perform its obligations under any Transaction
Document to which it is a party.
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(i) NO IMMUNITY. Under the laws of Mexico neither the Servicer nor
its property has any immunity from jurisdiction of any court or from any legal
process (whether through service or notice, attachment prior to judgment,
attachment in aid of execution, execution or otherwise).
(j) MATERIAL ADVERSE EFFECT. The reasonable likelihood of any act,
event or condition resulting in a "material adverse effect" as that term is used
in this SECTION 6.2, shall be based solely on the facts and circumstances in
existence on the applicable Closing Date.
Section 6.3 COVENANTS OF THE SERVICER.
(a) ADMINISTRATION OF PURCHASED RECEIVABLES. The Servicer shall
manage, service, administer and make collections on the Purchased Receivables
with reasonable care and in accordance with the TMM Credit and Collection
Policies, using that degree of skill and attention that the Servicer would
exercise with respect to the Purchased Receivables if the Servicer were the
owner thereof.
(b) COLLECTIONS. The Servicer shall remit promptly to the Trust
any payments on the Purchased Receivables, including without limitation any
Collections, received directly by the Servicer.
(c) COOPERATION WITH TRUSTEE. The Servicer shall cooperate with
and assist the Trustee in preparing the Weekly Trustee Report and the Monthly
Trustee Report, including, without limitation, by providing to the Trustee any
information requested by the Trustee relating to such reports.
(d) SERVICER REPORT. On each Determination Date, the Servicer
shall provide the Trustee with (i) a compliance certificate indicating the level
of each of the Receivables Coverage Ratio and the Generation Coverage Ratio and
including a list of the Owed Amounts as of such Determination Date (the
"SERVICER REPORT") in substantially the form set forth in EXHIBIT C hereto and
(ii) reports on revenue levels and payments on account of the Purchased
Receivables and such other information, documents, records or reports with
respect to the Purchased Receivables or the conditions of operations, financial
or otherwise, of the Seller, as the Trustee may from time to time reasonably
require in order to protect the interests of the Trustee and the
Certificateholders in connection with this Master Trust Agreement.
(e) ANNUAL SERVICER'S CERTIFICATE. On or before March 31 of each
calendar year, beginning with March 31, 2003, the Servicer will deliver to the
Trustee and the Paying Agent (if other than the Trustee) an Officer's
Certificate substantially in the form of EXHIBIT E hereto stating that (a) a
review of the activities of the Servicer during the twelve-month period ending
on December 31 of the previous calendar year, and of its performance under this
Master Trust Agreement, was made under the supervision of the Person signing
such certificate and (b) to the best of such Person's knowledge, based on such
review, the Servicer has fully performed all its obligations under this Master
Trust Agreement throughout such period, or, if there has been a default in the
performance of any such obligation, specifying each such default known to such
officer and the nature and status thereof. A copy of such certificate may be
obtained by any
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Investor Certificateholder by a request in writing to the Trustee addressed to
the Corporate Trust Office.
(f) PRESERVATION OF CORPORATE EXISTENCE. Except as permitted under
SECTION 3.3 with respect to TMM only, the Servicer shall preserve and maintain
its corporate existence, rights, franchises and privileges in the jurisdiction
of its incorporation, and qualify and remain qualified in good standing as a
foreign corporation in each jurisdiction where the failure to preserve and
maintain such existence, rights, franchises, privileges and qualifications is
reasonably likely to result in a material adverse effect on the
Certificateholders or Certificate Owners or the ability of the Servicer to
perform its obligations under any Transaction Document to which it is a party.
(g) AUDITS. At any time and from time to time during regular
business hours during a Rapid Amortization Period (and upon five (5) Business
Days' written notice if not during a Rapid Amortization Period), the Servicer
shall permit the Trustee, or its agents or representatives (i)(A) to examine and
make copies of and abstracts from all books, records and documents (including,
without limitation, computer tapes and disks) in possession or under the control
of the Servicer relating to the Purchased Receivables, including, without
limitation, the Obligor Agreements, and (B) to visit the offices and properties
of the Servicer for the purpose of examining such materials described in CLAUSE
(i)(A), and to discuss matters relating to the Purchased Receivables or the
performance of its obligations hereunder with any officers of the Servicer or
employees having knowledge of such matters, and (ii) without limiting the
foregoing CLAUSE (i), from time to time on request of the Trustee (given not
more than once in each calendar year so long as no Rapid Amortization Event or
Unmatured Rapid Amortization Event shall have occurred and be continuing),
permit certified public accountants or other auditors acceptable to the Trustee
to conduct, at the Servicer's expense, a review of the Servicer's books and
records with respect to the Purchased Receivables.
(h) COMPLIANCE WITH REQUIREMENTS OF LAW. The Servicer shall duly
satisfy all obligations on its part to be fulfilled under any Transaction
Document to which it is a party and will comply in all material respects with
all other Requirements of Law the failure to comply with which is reasonably
likely to result in a material adverse effect on the Certificateholders or
Certificate Owners of any Series or the ability of the Servicer to perform its
obligations under any Transaction Document to which it is a party.
(i) MAINTENANCE OF PROPERTIES; INSURANCE. TMM, on behalf of itself
and each of the other Sellers, will cause all properties used in connection with
the Obligor Agreements to be maintained and kept in good condition, repair and
working order, ordinary wear and tear accepted, and shall see the same are
supplied with all necessary equipment and will cause to be made all necessary
repairs, renewals, replacements, betterments and improvements thereof as in the
judgment of TMM may be necessary so that business carried on in connection
therewith may be conducted in the ordinary course consistent with TMM's and its
Subsidiaries' custom and practice at all times; PROVIDED, HOWEVER, that nothing
in this Section shall prevent TMM from discontinuing the operation or
maintenance of any such properties which in the reasonable judgment of TMM are
no longer necessary or useful to the conduct of its or any other Seller's
business or the business of TMM's other consolidated Subsidiaries so long as
such
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discontinuance of operations or maintenance shall not have a material adverse
effect on the Purchased Receivables.
Section 6.4 [Intentionally Omitted].
Section 6.5 TERMINATION OF THE SERVICER. If a Servicer Default shall have
occurred and be continuing, the Trustee, by notice given to the Servicer, and if
the Servicer is not TMM, to the Sellers' Representative, shall upon the written
directions of the Cumulative Required Investor Certificateholders terminate all
of the rights and powers of the Servicer under this Master Trust Agreement,
including without limitation all rights of such Servicer to receive any
servicing compensation provided for in the applicable Supplement with respect to
the period following such termination. Upon the giving of any such notice under
SECTION 10.5 below, the Trustee shall designate as successor Servicer any Person
(upon the written direction of the Cumulative Required Investor
Certificateholders to succeed such Servicer on the condition that the Trustee
determines that such Person meets sections (a) and (c) of the definition of
"Successor Servicer Criteria" and such Person certifies pursuant to section (b)
of the definition of "Successor Servicer Criteria" that it is legally qualified
to act as the successor Servicer. A Person so designated shall agree to assume
the duties and obligations of such Servicer under the Transaction Documents in
accordance with the terms hereof or thereof or such other terms as may be
acceptable to the Trustee, and upon such assumption all rights, duties and
responsibilities of the Servicer under the Transaction Documents shall vest in
such successor Servicer, and the Trustee is hereby irrevocably and independently
authorized, appointed and empowered to execute and deliver, on behalf of such
Servicer, as attorney-in-fact or otherwise (which appointment as
attorney-in-fact is with full power of substitution and coupled with an
interest), all documents and other instruments (including any notices to
Obligors deemed necessary or advisable by the Trustee), and to do or accomplish
all other acts or things, necessary or appropriate to effect such vesting and
assumption, including, without limitation, directing the Obligors to remit all
payments on or in respect of the Purchased Receivables to an account or address
designated by the Trustee or such successor Servicer and endorsing the name of
such Servicer on checks and other instruments representing Collections with
respect to the Purchased Receivables and enforcing such Purchased Receivables.
Further, in such event, such Servicer shall use its best efforts to effect the
orderly and efficient transfer of the servicing of the Purchased Receivables to
such successor Servicer, and as promptly as practicable, such Servicer shall
provide applicable records to such successor Servicer. In no event shall the
Trustee be obligated to act as a successor Servicer hereunder.
Notwithstanding the termination of any Person's rights and powers as
Servicer under this Master Trust Agreement, such Person shall remain obligated
to deposit all payments on the Purchased Receivables, including without
limitation all Collections, in the Collection Account promptly upon receipt.
Section 6.6 ASSUMPTION OF THE OBLIGATIONS OF THE SERVICER. The obligations
or duties of the Servicer hereunder shall not be assignable nor shall any Person
succeed to the obligations of the Servicer hereunder, whether due to a
consolidation of the Servicer with, or a merger into, another Person, or due to
a conveyance or transfer of the Servicer's properties and assets substantially
as an entirety to any Person, or otherwise, except for:
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(a) the termination and appointment of a successor Servicer
pursuant to SECTION 6.5 above; or
(b) any assignment and assumption of obligations pursuant to
SECTION 6.7 below; or
(c) unless, in the case of consolidations, mergers, conveyances or
transfers:
(i) in the event that the Servicer is TMM, the
consolidation, merger, transfer or conveyance complies with SECTION 3.3
above and, in the event of a Servicer other than TMM, the entity which is
the Servicer immediately prior to such consolidation, merger, conveyance or
transfer is the surviving corporation formed by such consolidation or
merger, and remains in compliance with every covenant and obligation of the
Servicer, as applicable hereunder;
(ii) any transfer of the assets of the Servicer either
directly or indirectly does not have a material adverse effect on the
ongoing business, condition (financial or otherwise), operations,
performance, properties or prospects of the Servicer;
(iii) the Enhancement Provider, if any, under each
outstanding Series has given its consent thereto, which consent shall not
be unreasonably withheld; and
(iv) the Servicer has delivered to the Trustee an Officer's
Certificate stating that such consolidation, merger, conveyance or transfer
complies with this SECTION 6.6 and that all conditions precedent herein
provided for relating to such transaction have been complied with; or
(d) those Services which are purely maritime in nature having to
do with the maintenance, operation, repair, chartering of vessels or
administration of the maritime aspects of the Obligor Agreements.
Section 6.7 RESIGNATION OF THE SERVICER. The Servicer shall not resign
from the obligations and duties hereby imposed on it except (a) upon
determination that (i) the performance of its duties hereunder is no longer
permissible under applicable law and (ii) there is no reasonable action which
the Servicer could take to make the performance of its duties hereunder
permissible under applicable law or (b) upon the assumption, by an agreement
supplemental hereto, executed and delivered to the Trustee, in form reasonably
satisfactory to the Trustee, of the obligations and duties of the Servicer
hereunder by any of its Affiliates or by any other Person meeting the Successor
Servicer Criteria. Any determination permitting the resignation of the Servicer
shall be evidenced as to clause (a) above by an Opinion of Counsel to such
effect delivered to the Trustee. No resignation shall become effective until a
successor Servicer shall have assumed the responsibilities and obligations of
the Servicer. If, within sixty (60) days after the date of the determination
that the Servicer may no longer act as Servicer under CLAUSE (a) above and a
successor Servicer which is reasonably acceptable to the Sellers and the
Cumulative Required Investor Certificateholders has not been appointed, the
Trustee may petition a court of competent jurisdiction for the appointment of a
successor Servicer hereunder. The Trustee shall give prompt notice to the
Enhancement Provider, if so provided in the related Supplement, upon the
appointment of a successor Servicer.
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Section 6.8 LIMITATION ON LIABILITY OF THE SERVICER AND OTHERS. Except as
provided in SECTION 5.6(b) above, neither the Servicer nor any of its directors,
officers, employees or agents shall be under any liability to the Trust, the
Trustee, the Certificateholders or any other Person for any action taken, or for
refraining from the taking of any action, in good faith in its capacity as
Servicer pursuant to this Master Trust Agreement; PROVIDED, HOWEVER, that this
provision shall not protect the Servicer or any such Person against any
liability which would otherwise be imposed by reason of the negligent action of
the Servicer or such Person, the negligent failure to act of the Servicer or
such Person, or the willful misconduct of the Servicer or such Person.
Section 6.9 INDEMNIFICATION OF THE SERVICER. TMM, on behalf of itself and
each of the other Sellers, shall indemnify and hold harmless the Servicer (if
the Servicer is not TMM), its officers, directors, employees or agents from and
against any Indemnified Loss (whether on account of settlements or otherwise,
and whether or not the Servicer, its officers, directors, employees or agents is
a party to any action or proceeding that gives rise to such Indemnified Loss)
suffered or sustained by reason of any acts, omissions or alleged acts or
omissions arising out of or in connection with the acceptance or administration
of any Transaction Document or the use of proceeds therefrom or the trusts
hereunder and thereunder and its duties hereunder or thereunder; PROVIDED,
HOWEVER, that TMM shall not indemnify the Servicer to the extent of any
Indemnified Losses which are found in a final judgment of a court of competent
jurisdiction to have been caused by gross negligence or willful misconduct by
the Servicer (or the gross negligence or willful misconduct on the part of any
of the Servicer's officers, directors, employees or agents). The obligations of
TMM under this SECTION 6.9 shall survive the termination of the Trust and the
resignation or removal of the Servicer.
Section 6.10 ACCESS TO CERTAIN DOCUMENTATION AND INFORMATION REGARDING THE
PURCHASED RECEIVABLES. The Trustee shall have access to the books and records of
the Servicer regarding the Purchased Receivables without charge, but only (i)
upon reasonable request and advance notice, (ii) during normal business hours,
(iii) subject to the Servicer's and its designee's normal security and
confidentiality procedures and (iv) at offices designated by the Servicer or its
designee.
Section 6.11 SERVICER MAY OWN CERTIFICATES. The Servicer and any Affiliate
of the Servicer may become the owner of Certificates but shall not participate
in decisions made or instructions given to the Trustee by the Certificateholders
as a group. The Servicer, if it is not TMM, may otherwise deal with the Sellers
with the same rights as it would have if it were not the Servicer.
ARTICLE VII
RAPID AMORTIZATION EVENTS
Section 7.1 RAPID AMORTIZATION EVENTS. If any one of the following events
(each a "RAPID AMORTIZATION EVENT") shall occur:
(a) any payment shall not be made on the date required under this
Master Trust Agreement or the applicable Supplement (including, without
limitation, Receivable Shortfall Payments, payments of principal and interest on
any Distribution Date, payments of
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Additional Amounts and any other payments or prepayments required to be made by
the Sellers under any applicable Supplement); PROVIDED, HOWEVER, in the case of
any payment other than payments of principal and interest on any Distribution
Date, such payment shall not be made for a period of thirty (30) days after the
date required under the Master Trust Agreement and in the case of any payment of
principal or interest on a Distribution Date, such payment shall not be made for
a period of three (3) Business Days after the date required in this Master Trust
Agreement;
(b) (i) TMM (as a Seller, Guarantor, or Sellers' Representative)
or any other Seller shall fail to duly observe or perform in any material
respect any other covenant or agreement of the Sellers in any Transaction
Document, which failure continues unremedied for a period of 30 days (PROVIDED,
THAT, with respect to the covenant set forth in SECTION 3.2(z) hereof the period
shall be seven (7) days) after the earlier to occur of (x) actual knowledge by a
Responsible Officer of such Person and (y) notice thereof to such Person by the
Trustee; or (ii) an Exercise Event (as such term is defined in the Option
Agreement or the Port Option Agreement, as applicable) shall occur under the
Option Agreement or the Port Option Agreement, as applicable;
(c) (i) any representation or warranty made by TMM (as a Seller,
Guarantor, or Sellers' Representative) or any other Seller in any Transaction
Document or in any instrument, document or certificate delivered by such Person
pursuant thereto, or any information required to be given by such Person to the
Trustee with respect to the Purchased Receivables, proves to have been incorrect
when made, the effect of which shall result in a Material Adverse Effect;
(d) TMM or any other Seller shall consent to the appointment of a
conservator, receiver or liquidator in any bankruptcy, insolvency, CONCURSO
MERCANTIL, readjustment of debt, marshalling of assets and liabilities or
similar proceedings of or relating to all or substantially all of its property;
or a decree or order of a court or agency or supervisory authority having
jurisdiction in the premises for the appointment of a conservator or receiver or
liquidator in any bankruptcy, insolvency, CONCURSO MERCANTIL, readjustment of
debt, marshalling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against TMM or
such other Seller and such action is not discharged within sixty (60) days; or
any encumbrancer takes possession of, or a trustee, administrator or receiver is
appointed for, the whole or any substantial part of the assets of TMM or such
other Seller and such action is not discharged within sixty (60) days; or TMM or
such other Seller shall admit in writing its inability to pay its debts
generally as they become due, file a petition to take advantage of any
applicable insolvency or reorganization statute, make an assignment for the
benefit of its creditors or voluntarily suspend payment of its obligations;
(e) the Trust shall be required to be registered (i) as an
"investment company" within the meaning of the Investment Company Act or (ii)
under the Trust Indenture Act;
(f) TMM or any other Seller shall, in any court or other
governmental proceeding, contest in any manner the validity, binding nature, or
enforceability of any Transaction Document or assert the matters set forth in
SECTION 7.1(g) below;
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(g) the assignment of the Purchased Receivables to the Trust
pursuant to this Master Trust Agreement and the Receivables Sale Agreements
shall generally cease to be an absolute assignment of all right, title and
interest in and to the Purchased Receivables for purposes of Mexican law; or the
Trustee, on behalf of the Trust, shall cease to either own or have a first
priority, perfected security interest in the Purchased Receivables for purposes
of United States law, in either case, as determined by a final judgment of a
court of competent jurisdiction in an action in which the assertion of such
cessation is made by or on behalf of a Person other than the Trustee or any
Certificateholder;
(h) Mexico shall impose foreign exchange controls that have the
effect, intended or not, of impeding the flow of payments with respect to the
Purchased Receivables or the transfer of funds from the Peso Denominated Account
or the Sweep Account to the Collection Account or from the Collection Account to
any Series Account as provided for in this Master Trust Agreement, any
Supplement or other Transaction Document which exchange controls, as they relate
to such flow of payments, are not removed within fifteen (15) days from their
imposition;
(i) except as provided in SECTION 4.1(c), on any Determination
Date, the currency of any Collections received by the Trust with respect to the
Purchased Receivables during the prior Collection Period shall be in a currency
other than Dollars;
(j) any Seller shall change the nature or conduct of its business
relating to Eligible Open Accounts Receivables if any such change is reasonably
likely to result in a Material Adverse Effect;
(k) any moratorium imposed by any government or legislative
authority on the repayment of any Indebtedness of any Seller shall occur, or any
governmental authority enactment shall occur that expropriates, condemns or
causes the compulsory purchase of fifteen percent (15%) or more of the
consolidated total assets of (i) TMM or (ii) any other Seller if the Collections
generated by the Eligible Purchased Receivables sold by that Seller to the Trust
accounted for in excess of five percent (5%) of the aggregate Collections
generated by all Purchased Receivables sold by all Sellers to the Trust during
the twelve-month period immediately preceding the occurrence of such event
(excluding any amount attributable to goodwill or other intangible assets) as
determined by reference to the then most recent audited consolidated financial
statements of TMM or any such Seller, as applicable;
(l) A final judgment or order for the payment of money in an
aggregate amount in excess of U.S.$10,000,000 (or the equivalent thereof in
other currencies), taken together with any other judgment or order then
outstanding, shall have been entered against TMM or any of its Restricted
Subsidiaries, any other Seller or any consolidated Subsidiary thereof, and
either (i) such judgment was prosecuted by any creditor or (ii) such judgment or
order shall have not been vacated, discharged, stayed or bonded pending appeal,
for a period of sixty (60) calendar days after the date of entry of such
judgment or order;
(m) A default shall have occurred under any Indebtedness of TMM or
any of its Restricted Subsidiaries, or any other Seller or any such Seller's
consolidated Subsidiaries (whether at stated maturity, required prepayment,
acceleration, demand or otherwise),
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individually or in the aggregate in excess of U.S. $10,000,000 or any default or
event of default shall occur under any agreement or instrument evidencing or
relating to such Indebtedness, including under either Indenture, if the effect
thereof is to accelerate the maturity thereof or to permit the holder or holders
of such Indebtedness, or an agent or trustee on its or their behalf, to
accelerate the maturity thereof or to require the mandatory prepayment or
redemption thereof;
(n) any governmental or legislative authorization, approval,
license or consent, if any, required by the laws of Mexico to enable TMM or any
other Seller or the Trust lawfully to enter into and perform the Transaction
Documents, to exercise the rights purported to be granted to the Trust therein,
to perform the obligations purported to be assumed by the Seller therein or to
ensure the legality, validity, enforceability and admissibility in evidence in
Mexico of any of the Transaction Documents, shall have ceased to be in full
force and effect in all material respects for a period of thirty (30) days or
more;
(o) if the Servicer is TMM, any Servicer Default shall occur and
be continuing;
(p) on any two consecutive Determination Dates, (A) the
Receivables Coverage Ratio shall be less than 2.00:1.00 or (B) the Generation
Coverage Ratio shall be less than 2.25:1.00;
(q) any Obligor Agreement relating to Purchased Receivables (A) is
terminated or not renewed prior to the Series 2001-A Termination Date, or (B)
any party thereto shall default thereunder which default is reasonably likely to
result in a Material Adverse Effect; PROVIDED, HOWEVER, a Rapid Amortization
Event shall not arise if such Obligor Agreement is terminated or is in default
and the Sellers immediately replace such Obligor Agreement with a new Eligible
Obligor acceptable to the Investor Certificateholders in their sole and absolute
discretion;
(r) a Change in Control shall have occurred; or
(s) a Receivable Shortfall Payment under either SECTION 4.2(a)(i)
OR (ii) hereof, shall occur on any two consecutive Transfer Dates.
then, in the case of any event set forth above other than in SECTION 7.1(d)
or SECTION 7.1(g), a Rapid Amortization Commencement Date will be deemed to have
occurred with respect to a Series only if, after any applicable grace period
described in such clauses, the Trustee, acting at the direction of the Series
Required Investor Certificateholders of such Series, by written notice to the
Sellers' Representative (the "RAPID AMORTIZATION NOTICE") declares that, as of
the date of such notice, a Rapid Amortization Commencement Date has occurred
with respect to such Series. In the case of any event set forth in SECTION
7.1(d) or (g) above, a Rapid Amortization Commencement Date with respect to all
Series will be deemed to have occurred without any notice or other action on the
part of the Trustee immediately upon the occurrence of such event. In the case
of any event set forth above other than in SECTION 7.1(d), a Rapid Amortization
Commencement Date will be deemed to have been rescinded with respect to a Series
if the Trustee, at the direction of the Series Required Investor
Certificateholders of such Series, by written notice to the Sellers'
Representative, declares that such Rapid Amortization
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Commencement Date has been deemed not to have occurred (such written notice, a
"WAIVER NOTICE"); PROVIDED, HOWEVER, such Waiver Notice shall not affect a Rapid
Amortization Notice given with respect to any other Series. Any Waiver Notice
shall be given within the period commencing on the date on which the Rapid
Amortization Commencement Date has been deemed to have occurred and the date of
the second Distribution Date immediately following such date (the "NOTICE
PERIOD"). During the Notice Period with respect to a Series, all Collections
allocable to such Series will be deposited in the Certificate Account for such
Series until the amount on deposit in the applicable Certificate Account equals
an amount sufficient to pay such Series' Series Percentage of the Trustee Fee
and the Servicing Fee and to pay the Certificate Balance of such Series plus
interest thereon at the Certificate Rate (calculated as during a Rapid
Amortization Period) through the expiration of the Notice Period; PROVIDED,
HOWEVER, that until the expiration of the Notice Period, distributions to the
Certificateholders (other than any Seller or Affiliate thereof or any
Subordinated Certificateholder) will continue to be made on each Distribution
Date. Notwithstanding the foregoing, the Series Required Investor
Certificateholders of a Series may not direct the Trustee to give a Rapid
Amortization Notice with respect to such Series if a Rapid Amortization Event of
the type described at SECTION 7.1(a), (b) OR (c) above arises solely as a result
of a failure to pay or perform or a breach with respect to terms or conditions
of a Supplement relating to another Series.
Section 7.2 ADDITIONAL RAPID AMORTIZATION EVENTS. A Supplement may specify
events in addition to those specified in SECTION 7.1 above which will constitute
Rapid Amortization Events with respect to the Series to which such Supplement
relates; PROVIDED, HOWEVER, that the procedures for giving a Rapid Amortization
Notice shall not differ from those set forth in the final paragraph of SECTION
7.1 and shall have the consequences specified in SECTION 7.3 below.
Section 7.3 ADDITIONAL REMEDIES OF CERTIFICATEHOLDERS.
(a) If any Rapid Amortization Commencement Date, based on a Rapid
Amortization Event other than those events described in SECTION 7.1(d) above
shall have occurred and shall have not been rescinded, Collections shall be
distributed in accordance with this Master Trust Agreement and the applicable
Supplement.
(b) From and after the occurrence of any Rapid Amortization Event,
until the earlier of (i) the date on which all principal and interest on the
Certificates of the Series to which the Rapid Amortization Event applies have
been paid in full and all such Series' Series Percentage of the Trustee's Fees
and Servicer's fees have been paid in full and (ii) the commencement of the
Notice Period, Collections shall continue to be deposited into the Collection
Account and applied as required in this Master Trust Agreement and each
applicable Supplement.
ARTICLE VIII
THE TRUSTEE
Section 8.1 DUTIES OF TRUSTEE.
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(a) RIGHTS AND POWERS. The Trustee undertakes to perform such
duties and only such duties as are specifically set forth in this Master Trust
Agreement, and no implied covenants or obligations shall be read into this
Master Trust Agreement against the Trustee. Following the occurrence and during
the continuance of any default actually known to a Responsible Trustee Officer
in the payment or performance of the duties and obligations of any Seller, the
Guarantor, the Servicer, the Sellers' Representative, TMM Multimodal, Newco or
Grupo TFM under any Transaction Document, the Trustee shall exercise such of the
rights and powers vested in it by this Master Trust Agreement or any other
Transaction Document, and use the same degree of care and skill in their
exercise, as a prudent person would exercise or use under the circumstances in
the conduct of such person's own affairs.
(b) WEEKLY REPORTS. Not later than 2:00 p.m. (New York City time)
on each Weekly Allocation Day, the Trustee (in consultation with the Servicer,
to the extent deemed necessary by the Trustee) shall prepare and deliver to the
Sellers, the Servicer and the Paying Agent a report with respect to each
outstanding Series (the "WEEKLY TRUSTEE REPORT") in substantially the form set
forth in EXHIBIT B hereto.
(c) TRUSTEE REPORT. Unless otherwise stated in the related
Supplement with respect to any Series, prior to each Transfer Date, the Trustee
(in consultation with the Servicer, to the extent deemed necessary by the
Trustee) shall prepare a certificate (the "MONTHLY TRUSTEE REPORT") of a
Responsible Trustee Officer in the form of EXHIBIT D hereto setting forth, with
respect to the next succeeding Distribution Date (i) the total amount to be
distributed on such Distribution Date to Certificateholders of each Series then
outstanding, (ii) the amount of the distribution to be made on such Distribution
Date allocable to principal on the Certificates of all Series then outstanding,
(iii) the amount of the distribution to be made on such Distribution Date
allocable to interest on the Certificates of all Series then outstanding, (iv)
the aggregate amount of Collections, Receivable Shortfall Payments and other
payments by the Sellers to the Trust received during the Related Collection
Period and allocated in respect of the Certificates of all Series then
outstanding, (v) the Aggregate Certificate Balance as of the preceding
Distribution Date, (vi) the Receivables Coverage Ratio and the Generation
Coverage Ratio as of the succeeding Distribution Date (as provided by the
Servicer to the Trustee), (vii) whether, with respect to each Series then
outstanding, there has occurred any Rapid Amortization Event or Unmatured Rapid
Amortization Event, and (viii) such other matters as are set forth in EXHIBIT D
hereto (including a schedule to the Monthly Trustee Report specifying the
matters with respect to each Series, as required by the applicable Supplement).
The Trustee shall deliver the Monthly Trustee Report to the Paying Agent (if the
Paying Agent is not the Trustee), the Sellers' Representative and the Servicer
not later than the Transfer Date. On each Distribution Date, the Paying Agent
shall forward the Monthly Trustee Report to each Certificateholder of record.
(d) EXECUTION OF OPTION AGREEMENT; PUT OPTION AGREEMENT; TMM PORT
OPTION AND PUT AGREEMENTS; FUTURE EXECUTION OF NEWCO PORT OPTION AND PUT
AGREEMENTS. (i) The Trustee, at the written direction of the Series 2001-A
Certificateholders, has executed and delivered the Option Agreement, Put Option
Agreement and the TMM Port Option and Put Agreements and will, if instructed by
the Series 2001-A Certificateholders, enter into the Newco Port Option and Put
Agreements or consent to the assumption by Newco of TMM's rights and obligations
under the TMM Port Option and Put Agreements. Except as provided below in (ii)
and (iii), which (ii) and (iii) paragraphs shall be applied solely with respect
to the Option
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Agreement and Put Option Agreement and not with respect to the TMM Port Option
and Put Agreements or the Newco Port Option and Put Agreements, prior to the
Series 2001-A Repayment Date, the Trustee will take such actions as contemplated
by the Option Agreement, the Put Option Agreement, the TMM Port Option and Put
Agreements or the Newco Port Option and Put Agreements, as applicable, only as
instructed and directed by the Series 2001-A Series Required Investor
Certificateholders in their sole and absolute discretion and in no event shall
the Trustee or any Series 2001-A Certificateholder have any liability to any
other Certificateholder or Person (including, without limitation, the Series
2002-A Certificateholder) for any action taken by them or at their instruction
(including any enforcement of any remedy or any waiver) in their sole
discretion, or any failure to act or any delay in acting with respect to the
Option Agreement or Put Option Agreement, and such Series 2001-A
Certificateholders shall be authorized to, or to direct the Trustee to, amend,
modify or terminate the Option Agreement or Put Option Agreement in any manner
without liability to any other Certificateholders or Persons, whether or not any
such action, failure to act, modification, amendment or termination adversely
affects the rights or abilities of any Certificateholder of another Series,
including the ability of any Certificateholder of another Series to collect
Proceeds or receive any payment following the Series 2001-A Repayment Date;
PROVIDED, HOWEVER, the foregoing shall not be deemed a waiver by the Series
2002-A Certificateholders of their right to share in any Multimodal Prepayment
Proceeds and Port Shares Prepayment Proceeds actually paid to the Trustee
pursuant to SECTION 4.3 hereof; and; PROVIDED, FURTHER, that the foregoing shall
not be deemed a waiver by TMM Multimodal, TMM or, after its formation, Newco of
any specified rights either of them may have under the terms of the Option
Agreement, Put Option Agreement, the TMM Port Option and Put Agreements or the
Newco Port Option and Put Agreements, as applicable, to approve any such
amendment or modification.
(ii) The Series 2001-A Series Required Investor Certificateholders shall
provide the Series 2002-A Series Required Investor Certificateholders with at
last three (3) Business Days prior written notice (such notice, a "PROPOSED
INSTRUCTION NOTICE") before instructing the Trustee to deliver an "Exercise
Notice" (as such term in defined in the Option Agreement). During such three (3)
Business Days period (such period, the "CONSULTATION PERIOD"), such Series
2001-A Certificateholders shall consult with the representatives of such Series
2002-A Certificateholders regarding the decision to instruct the Trustee to
deliver the Exercise Notice. In addition, if the Trustee is instructed to
provide an Exercise Notice, such Series 2001-A Certificateholders shall also
instruct the Trustee to provide such Series 2002-A Certificateholders with
copies of all material communications and notifications issued by the Trustee in
the exercise of any remedies taken by the Trustee in respect of the Option
Agreement or Put Agreement. Except for such consultation and notice rights and
except as otherwise provided in paragraph (iii) below, such Series 2001-A
Certificateholders shall have the sole right and discretion to direct and
instruct the Trustee pursuant to paragraph (i) above, and the Series 2002-A
Certificateholders hereby agree not to provide to the Trustee any instruction or
direction contrary in any way to any instruction or direction so provided by
such Series 2001-A Certificateholders to the Trustee. Except as otherwise
provided in paragraph (iii) below, the Trustee acknowledges its obligations to
act solely upon the directions or instructions provided by such Series 2001-A
Certificateholders.
(iii) At any time following the earlier of (a) the date that the Series
2001-A Series Required Investor Certificateholders give a Proposed Instruction
Notice or (b) if a Proposed Instruction Notice has not been given, the date
which is fifteen (15) Business Days following the
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occurrence and during the continuance of an Exercise Event (as such term in
defined in the Option Agreement), the Series 2002-A Certificateholders shall
have the right, upon advance written notice (the "PURCHASE NOTICE") to the
Series 2001-A Certificateholders, to purchase all (but not less than all) of the
Series 2001-A Certificates at a purchase price equal to the Series 2001-A Full
Repurchase Payment. Such Purchase Notice shall state the date of such purchase
(the "PURCHASE DATE"), which Purchase Date shall be a Business Day not earlier
than two (2) Business Days and nor later than five (5) Business Days after the
date such Purchase Notice is given. The Purchase Notice and such election to
purchase shall become irrevocable upon the giving of such a Purchase Notice. The
Series 2002-A Certificateholder that first gives a Purchase Notice is
hereinafter referred to as the "SERIES 2002-A PURCHASER". At all times following
the delivery of the Purchase Notice and through and including the Purchase Date,
the Series 2001-A Certificateholders hereby agree not to instruct the Trustee to
take any actions with respect to the Option Agreement or Put Option Agreement
unless such instruction has been approved by the Series 2002-A Purchaser, which
approval may be withheld by it in its sole discretion; PROVIDED, HOWEVER, that
prior to the Purchase Date, none of the Series 2002-A Certificateholders,
including the Series 2002-A Purchaser, shall give any instruction with respect
to the Option Agreement or Put Option Agreement to the Trustee. At least one (1)
Business Day prior to the Purchase Date, the Series 2002-A Purchaser shall pay
to the Trustee in immediately available funds in Dollars an amount equal to the
Series 2001-A Full Repurchase Payment, which the Trustee shall deposit into the
Series 2001-A Certificate Account. On the Purchase Date, the Paying Agent shall
distribute to the Series 2001-A Certificateholders such Series 2001-A Full
Repurchase Payment amount pro rata in accordance with their respective Series
2001-A Certificate Balances and each Series 2001-A Certificateholder upon the
receipt of the amounts payable to it shall transfer its Series 2001-A
Certificates to the Series 2002-A Purchaser in accordance with the transfer
requirements set forth in Article IX of the Series 2001-A Supplement.
(e) EXAMINATION OF DOCUMENTS. The Trustee, upon receipt of any
resolutions, certificates, statements, opinions, reports, documents, orders or
other instruments furnished to the Trustee which are specifically required to be
furnished pursuant to any provision of this Master Trust Agreement, shall
examine them to determine whether they substantially conform to the requirements
of this Master Trust Agreement, but the Trustee will be under no obligation to
verify the contents thereof. The Trustee shall give prompt written notice to any
Enhancement Provider affected thereby and the Certificateholders (or, in the
case of Bearer Certificateholders, notice by publication in the manner described
in the related Supplement) of any material lack of conformity of any such
instrument to the applicable requirements of this Master Trust Agreement
discovered by the Trustee which would entitle such Enhancement Provider or a
specified percentage of the Certificateholders, as the case may be, to take any
action pursuant to this Master Trust Agreement.
(f) LIMITATION ON LIABILITY. Subject to SECTION 8.1(a) above, no
provision of this Master Trust Agreement shall be construed to relieve the
Trustee from liability for its own gross negligence, negligence in the handling
of funds or willful misconduct; PROVIDED, HOWEVER, that:
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(i) the Trustee shall not be personally liable for an error
of judgment made in good faith, unless it shall be proved that the Trustee
was grossly negligent in ascertaining the pertinent facts or negligent in
the handling of funds;
(ii) the Trustee shall not be personally liable with respect
to any action taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of the Cumulative Required Investor
Certificateholders, Cumulative Required Investor Certificateholders (Super
Majority), Series Required Investor Certificateholders or Series Required
Investor Certificateholders (Super Majority), as applicable, relating to
the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred upon
the Trustee, under this Master Trust Agreement; and
(iii) The Trustee shall not be required to expend or risk its
own funds or otherwise incur financial liability in the performance of any
of its duties hereunder, or in the exercise of any of its rights or powers,
if there is reasonable ground for believing that the repayment of such
funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
(g) IMPAIRMENT OF INTERESTS OF THE TRUST. Except for actions
expressly authorized by this Master Trust Agreement, the Trustee shall take no
action reasonably likely to impair the interests of the Trust in the Purchased
Receivables now existing or hereafter created or to impair the value of the
Purchased Receivables now existing or hereafter created.
(h) LIMITATION ON POWER. The Trustee shall have no power to vary
the corpus of the Trust including, without limitation, the power to (i) accept
any substitute obligation for the Purchased Receivables, (ii) add any other
investment, obligation or security to the Trust or otherwise encumber the Trust
Assets, or (iii) withdraw from the Trust or sell, transfer, alienate, pledge,
hypothecate or otherwise dispose of the Purchased Receivables, except as
specifically set forth in the Transaction Documents following a Rapid
Amortization Event and upon any optional or mandatory repurchase of the Trust
Assets as specified in the applicable Supplement or any other reassignment or
repurchase of the Trust Assets permitted under any Supplement.
(i) PERFORMANCE OF DUTIES. In the event that the Paying Agent or
the Transfer Agent and Registrar shall fail to perform any obligation, duty or
agreement in the manner or on the day required to be performed by the Paying
Agent or the Transfer Agent and Registrar, as the case may be, under this Master
Trust Agreement, the Trustee shall be obligated promptly upon a Responsible
Trustee Officer's obtaining actual knowledge thereof to perform such obligation,
duty or agreement or cause such obligation, duty or agreement to be performed in
the manner so required.
Section 8.2 CERTAIN MATTERS AFFECTING THE TRUSTEE. Except as otherwise
provided in Section 8.1 above:
(a) the Trustee may conclusively rely on and shall be protected in
acting on, or in refraining from acting in accordance with, any resolution,
Officer's Certificate, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request,
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consent, order, appraisal, bond or other paper or document reasonably believed
by it to be genuine and to have been signed or presented to it pursuant to this
Master Trust Agreement by the proper party or parties;
(b) the Trustee may consult with counsel reasonably selected by
the Trustee, and any advice or Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or
omitted by it hereunder in good faith and in accordance with such advice or
Opinion of Counsel;
(c) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Master Trust Agreement or any
Enhancement, or to institute, conduct or defend any litigation hereunder or in
relation hereto, at the request, order or direction of any of the
Certificateholders, pursuant to the provisions of this Master Trust Agreement,
unless such Certificateholders shall have offered to the Trustee reasonable
security or indemnity reasonably satisfactory to it against the costs, expenses
and liabilities which may be incurred therein or thereby;
(d) the Trustee shall not be personally liable for any action
taken, suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon it by
this Master Trust Agreement;
(e) the Trustee shall not be bound to make any investigation into
the facts of matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond or
other paper or document, unless requested in writing to do so by (i) any
Enhancement Provider or (ii) the Cumulative Required Investor
Certificateholders, Cumulative Required Investor Certificateholders (Super
Majority), Series Required Investor Certificateholders or Series Required
Investor Certificateholders (Super Majority), as applicable; PROVIDED, HOWEVER,
that the Enhancement Provider shall reimburse the Trustee for any reasonable
out-of-pocket expenses resulting from any such investigation requested by it;
(f) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents,
nominees, custodians or attorneys, and the Trustee shall not be responsible for
any misconduct or negligence on the part of any such agent, nominee, custodian
or attorney appointed with due care by it hereunder;
(g) except as may be required by SECTION 8.1(a) above, the Trustee
shall not be required to make any initial or periodic examination of any
documents or records related to the Purchased Receivables for the purpose of
establishing the presence or absence of defects, the compliance by any Seller or
the Servicer with its respective representations and warranties or for any other
purpose;
(h) the Trustee shall not be deemed to have notice of any Rapid
Amortization Event or Unmatured Rapid Amortization Event unless a Responsible
Trustee Officer has actual knowledge thereof or unless written notice of any
such event which is in fact such an event is received by the Trustee at the
Corporate Trust Office of the Trustee, and such notice references the
Certificates and this Master Trust Agreement;
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(i) the rights, privileges, protections, immunities and benefits
given to the Trustee, including, without limitation, its rights to be
indemnified, are extended to, and shall be enforceable by, the Trustee in each
of its capacities hereunder, and to each agent, custodian and other Person
employed to act hereunder on behalf of the Trustee and who is acting in
accordance herewith.
(j) the Trustee may request that the Sellers and the Servicer
deliver an Officers' Certificate setting forth the names of individuals and/or
titles of officers authorized at such time to take specified actions pursuant to
this Master Trust Agreement, which Officers' Certificate may be signed by any
person authorized to sign an Officers' Certificate, including any person
specified as so authorized in any such certificate previously delivered and not
superseded;
(k) beyond the exercise of reasonable care in the custody thereof
and except as provided for in this Master Trust Agreement and any Supplement,
the Trustee shall have no duty as to any Purchased Receivables or any Trust
Assets in its possession or control or in the possession or control of any agent
or bailee or any income thereon or as to preservation of rights against prior
parties or any other rights pertaining thereto. The Trustee shall not be liable
or responsible for any loss or diminution in the value of any Trust Assets, by
reason of the act or omission of any carrier, forwarding agency or other agent
or bailee reasonably selected by the Trustee in good faith; and
(l) the Trustee shall not be responsible for the existence,
genuineness or value of any of the Purchased Receivables or other Trust Assets
or for the validity, perfection, priority or enforceability of any lien or
security interest in any of the Trust Assets, whether impaired by operation of
law or by reason of any action or omission to act on its part hereunder, except
to the extent such action or omission constitutes gross negligence, bad faith or
wilful misconduct on the part of the Trustee, for the validity or sufficiency of
the Trust Assets or any agreement or assignment contained therein, for the
validity of the title of the Sellers to the Trust Assets, for the registration
of the Trust Assets with any governmental authority, for insuring the Trust
Assets or for the payment of taxes, charges, assessments or liens upon the Trust
Assets or otherwise as to the maintenance of the Trust Assets, provided,
however, that nothing in this SECTION 8.2(l) shall modify, reduce or have any
effect on the Trustee's express obligations contained in this Master Trust
Agreement or any Supplement.
Section 8.3 TRUSTEE FEES AND EXPENSES. The Trustee shall be entitled to
receive (from Collections or, in connection with a Receivable Shortfall Payment
or any other payments required to be made by the Sellers or the Sellers'
Representative under any applicable Supplement, from the Sellers' Representative
other than the Proceeds) the Trustee Fees as compensation for all services
rendered by it in the execution of the Trust hereby created and in the exercise
and performance of any of the powers and duties hereunder of the Trustee;
PROVIDED, HOWEVER, that the Trustee shall only be entitled to claim the
applicable Series Percentage of such Trustee Fee from Collections or other
payments allocable to the applicable Series. In addition, the Sellers'
Representative shall pay or reimburse the Trustee (without reimbursement from
the Collection Account, any Series Account or otherwise) upon its request for
all reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with any of the provisions of this Master Trust Agreement
(including the reasonable fees and expenses of
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its agents, any co-Trustees and counsel) except any such expense, disbursement
or advance as may arise from the gross negligence, negligence in the handling of
funds or willful misconduct by the Trustee. The obligations of the Seller under
this SECTION 8.3 shall survive the termination of the Trust and the resignation
or removal of the Trustee.
Section 8.4 ELIGIBILITY REQUIREMENTS FOR TRUSTEE; TERMINATION OF QUALIFIED
INSTITUTION.
(a) The Trustee hereunder shall at all times be a corporation
organized and doing business under the laws of the United States of America or
any state thereof authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least U.S.$50,000,000 and subject to
supervision or examination by federal or state authority and with a long-term
debt rating of at least BBB by Standard & Poor's. If such corporation publishes
reports of condition at least annually, pursuant to law or to the requirements
of the aforesaid supervising or examining authority, then for the purpose of
this SECTION 8.4, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time the Trustee shall cease to
be eligible in accordance with the provisions of this SECTION 8.4, the Trustee
shall promptly resign in the manner and with the effect specified in SECTION 8.5
below.
(b) If the Trustee ceases to be a Qualified Institution, then the
Trustee shall (i) provide the Sellers' Representative, the Servicer and the
Cumulative Required Investor Certificateholders (Super Majority) with prompt
written notice that it is no longer a Qualified Institution and (ii) transfer
the funds deposited in all Series Accounts to another Qualified Institution
designated by the Servicer, and reasonably acceptable to the Cumulative Required
Investor Certificateholders (Super Majority) and (iii) otherwise give such
written notices and execute such written instructions as required by this Master
Trust Agreement, the Control Agreement or the Conversion Agreement, within 10
Business Days of the day on which the Trustee ceased to be a "Qualified
Institution".
Section 8.5 RESIGNATION OR REMOVAL OF TRUSTEE.
(a) The Trustee may at any time resign and be discharged from the
Trust hereby created by giving written notice thereof to the Servicer with a
copy to each Enhancement Provider. In addition, the Trustee may be removed by
the Cumulative Required Investor Certificateholders (Super Majority) if they
deliver written notice to the Trustee to the effect that they have elected to
remove the Trustee for cause and the Servicer (provided that no Rapid
Amortization Event shall have occurred and be continuing) consents to such
removal (which consent shall not be unreasonably withheld or delayed). Upon
receiving such notice of resignation or removal, such Investor
Certificateholders shall promptly appoint a successor trustee, reasonably
acceptable to the Servicer, by written instrument, in duplicate, one copy of
which instrument shall be delivered to the resigning Trustee and one copy to the
successor trustee, subject to the consent of the Enhancement Provider of any
Series (if the Supplement relating to such Series so requires), which consent
shall not be unreasonably withheld. If no successor trustee shall have been so
appointed and have accepted within thirty (30) days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee.
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(b) If at any time the Trustee shall cease to be eligible in
accordance with the provisions of SECTION 8.4 above and shall fail to resign
after written request therefor by the Investor Certificateholders described in
SECTION 8.5(a) above, or if at any time the Trustee shall be legally unable to
act, or shall be adjudged a bankrupt or insolvent, or a receiver of the Trustee
or of its property shall be appointed, or any public officer shall take charge
or control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, then such Investor
Certificateholders may remove the Trustee and promptly appoint a successor
trustee, reasonably acceptable to the Servicer, by written instrument, in
duplicate, one copy of which instrument shall be delivered to the Trustee so
removed and one copy to the successor trustee.
(c) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this SECTION 8.5 shall
not become effective until acceptance of appointment by the successor trustee as
provided in SECTION 8.6 below and any liability of the Trustee arising hereunder
shall survive such appointment of a successor trustee.
(d) Prior to its removal or resignation, the Trustee shall give
such written notices and execute such written instructions as required by the
Master Trust Agreement, the Control Agreement or the Conversion Agreement.
Section 8.6 SUCCESSOR TRUSTEE.
(a) Any successor trustee appointed as provided in SECTION 8.5
above shall execute, acknowledge and deliver to the Sellers and to its
predecessor Trustee an instrument accepting such appointment hereunder, and
thereupon the resignation or removal of the predecessor Trustee shall become
effective and such successor trustee, without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with the like effect as if originally
named as Trustee herein. The predecessor Trustee, provided all sums then due and
payable to it hereunder have been paid, shall deliver to the successor trustee
all documents and statements held by it hereunder, and the Sellers and the
predecessor Trustee shall execute and deliver such instruments and do such other
things as may reasonably be required for fully and certainly vesting and
confirming in the successor trustee all such rights, powers, duties and
obligations.
(b) No successor trustee shall accept appointment as provided in
this SECTION 8.6 unless at the time of such acceptance such successor trustee
shall be eligible under the provisions of SECTION 8.4 above.
(c) Upon acceptance of appointment by a successor trustee as
provided in this SECTION 8.6, such successor trustee shall mail notice of such
succession hereunder to all Certificateholders at their addresses as shown in
the Certificate Register. Notice to Bearer Certificateholders shall be given in
the manner provided in the related Supplement.
Section 8.7 MERGER OR CONSOLIDATION OF TRUSTEE. Any Person into which the
Trustee may be merged or converted or with which it may be consolidated, or any
Person resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any Person succeeding to the corporate trust
business of the Trustee, shall be the successor of the Trustee
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hereunder, PROVIDED that such corporation shall be eligible under the provisions
of SECTION 8.4 above, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding.
Section 8.8 APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE.
(a) Notwithstanding any other provisions of this Master Trust
Agreement, at any time, for the purpose of meeting any legal requirements of any
jurisdiction in which any part of the Trust may at the time be located, the
Trustee shall have the power and may execute and deliver all instruments to
appoint one or more Persons to act as a co-trustee or co-trustees, or a separate
trustee or separate trustees, of all or any part of the Trust, and to vest in
such Person or Persons, in such capacity and for the benefit of the
Certificateholders, such title to the trust, or any part thereof, and, subject
to the other provisions of this SECTION 8.8, such powers, duties, obligations,
rights and trusts as the Trustee may consider necessary or desirable. No
co-trustee or separate trustee hereunder shall be required to meet the terms of
eligibility as a successor trustee under SECTION 8.4 above and no notice to
Certificateholders of the appointment of any co-trustee or separate trustee
shall be required under SECTION 8.6 above.
(b) Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon the Trustee shall be conferred or imposed upon and exercised
or performed by the Trustee and such separate trustee or co-trustee jointly
(it being understood that such separate trustee or co-trustee is not
authorized to act separately without the Trustee joining in such act),
except to the extent that under any laws of any jurisdiction in which any
particular act or acts are to be performed (whether as Trustee hereunder or
as successor to the Servicer hereunder), the Trustee shall be incompetent
or unqualified to perform such act or acts, in which event such rights,
powers, duties and obligations (including the holding of title to the Trust
or any portion thereof in any such jurisdiction) shall be exercised and
performed singly by such separate trustee or co-trustee, but solely at the
direction of the Trustee;
(ii) no trustee hereunder shall be personally liable by
reason of any act or omission of any other trustee hereunder; and
(iii) the Trustee may at any time accept the resignation of
or remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Master Trust
Agreement and the conditions of this ARTICLE VIII. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be vested with
the estates or property specified in its instrument of appointment, either
jointly with the Trustee or separately, as may be provided therein, subject to
all the provisions of this Master Trust Agreement, specifically including every
provision of this Master Trust Agreement relating to the conduct of, affecting
the
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liability of, or affording protection to, the Trustee. Every such instrument
shall be filed with the Trustee and a copy thereof given to the Servicer.
(d) Any separate trustee or co-trustee may at any time constitute
the Trustee its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Master Trust Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
Section 8.9 TAX RETURNS. In the event the Trust shall be required to file
tax returns, the Servicer shall prepare or cause to be prepared any tax returns
required to be filed by the Trust and shall remit such returns to the Trustee
for a signature. The Trustee shall deliver the signed tax returns to the
Servicer within five (5) Business Days after its receipt thereof, but the
Trustee shall have no obligation to confirm the contents of the tax returns. The
Servicer shall prepare or shall cause to be prepared all tax information
required by law to be distributed to Certificateholders and shall deliver such
information to the Trustee at least five (5) days prior to the date it is
required by law to be distributed to Certificateholders. The Trustee, upon
request, will furnish the Servicer with all such information known to the
Trustee as may be reasonably required in connection with the preparation of all
tax returns of the Trust and shall, upon request, execute such returns. In no
event shall the Trustee be liable for any liabilities, costs or expenses of the
Trust, the Investor Certificateholders or the Certificate Owners arising under
any tax law, including without limitation U.S. federal, state, local or foreign
income or excise taxes or any other tax imposed on or measured by income (or any
interest or penalty with respect thereto or arising from a failure to comply
therewith).
Section 8.10 TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF CERTIFICATES.
All rights of action and claims under this Master Trust Agreement or any Series
of Certificates may be prosecuted and enforced by the Trustee without the
possession of any of the Certificates or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee. Any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Certificateholders of any Series in respect of which such
judgment has been obtained.
Section 8.11 SUITS FOR ENFORCEMENT. If the Servicer or any Seller (for 30
days after written notice of such failure from the Trustee) fails to take any
action it is required to take pursuant to this Master Trust AGREEMENT, the
Trustee, in its discretion may proceed to protect and enforce its rights and the
rights of the Certificateholders of any Series under this Master Trust Agreement
by a suit, action or proceeding in equity or at law or otherwise, whether for
the specific performance of any covenant or agreement contained in this Master
Trust Agreement or in aid of the execution of any power granted in this Master
Trust Agreement or for the enforcement of any other legal, equitable or other
remedy as the Trustee, being advised by counsel, shall deem most effectual to
protect and enforce any of the rights of the Trustee or the Certificateholders
of any Series.
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Section 8.12 RIGHTS OF CERTIFICATEHOLDERS TO DIRECT TRUSTEE. Subject to
SECTIONS 8.1(d), (f) and (g) and SECTION 8.2(c) above, the Cumulative Required
Investor Certificateholders, Cumulative Required Investor Certificateholders
(Super Majority), Series Required Investor Certificateholders and Series
Required Investor Certificateholders (Super Majority), as applicable, shall have
the right to direct the time, method, and place of conducting any proceeding for
any remedy available to the Trustee, or exercising any trust or power conferred
on the Trustee; PROVIDED, HOWEVER, that, subject to SECTION 8.1 above, the
Trustee shall have the right to decline to follow any such direction if the
Trustee being advised by counsel determines that the action so directed may not
lawfully be taken, or if the Trustee in good faith shall, by a Responsible
Trustee Officer or Responsible Trustee Officers, determine that the proceedings
so directed would be illegal or involve it in personal liability; and PROVIDED
FURTHER that nothing in this Master Trust Agreement shall impair the right of
the Trustee to take any action deemed proper by the Trustee and which is not
inconsistent with such direction of such Holders of Investor Certificates.
Notwithstanding any provision in this Master Trust Agreement, if Investor
Certificates are held by a Seller, or any of its Affiliates, such Persons shall
not be permitted to participate in any decisions made by, or instructions given
to, the Trustee by the Investor Certificateholders.
Section 8.13 REPRESENTATIONS AND WARRANTIES OF TRUSTEE. The Trustee
represents and warrants, as of the Document Closing Date and (unless otherwise
specified in the applicable Supplement) as of the Initial Closing Date and each
subsequent Closing Date, including the Third Closing Date, that:
(a) it is a New York banking corporation organized, existing and
in good standing under the laws of the State of New York and its principal
office and place of business is not located in Mexico;
(b) it has full power and authority to execute, deliver and
perform this Master Trust Agreement and each Supplement, and has taken all
necessary action to authorize the execution, delivery and performance by it of
this Master Trust Agreement and each Supplement; and
(c) this Master Trust Agreement and each Supplement have been duly
executed and delivered by it.
Section 8.14 MAINTENANCE OF OFFICE OR AGENCY. Each of the Trustee, the
Paying Agent and the Transfer Agent and Registrar will maintain at its expense
in the Borough of Manhattan, The City of New York (or London in the case of
Bearer Certificates), an office or offices or agency or agencies where notices
and demands to or upon the Trustee, the Paying Agent or the Transfer Agent and
Registrar in respect of the Certificates and this Master Trust Agreement may be
served. Each of the Trustee, the Paying Agent and the Transfer Agent and
Registrar initially appoints the Corporate Trust Office as its office for such
purposes in New York. The Trustee, the Paying Agent or the Transfer Agent and
Registrar, as applicable, will give prompt written notice to the Servicer, each
Enhancement Provider and to Certificateholders (in the case of Bearer
Certificates, in the manner provided in the related Supplement) of any change in
the location of the Certificate Register or any such office or agency.
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Section 8.15 TRUSTEE MAY OWN CERTIFICATES. The Trustee or any Affiliate may
in its individual capacity, as well as in a fiduciary capacity, become the owner
of Certificates, and the Trustee or any Affiliate may otherwise extend credit to
a Seller, but the Trustee (in its capacity as the owner of any Certificate)
shall not participate in decisions made or instructions given to the Trustee by
the Certificateholders as a group. The Trustee may otherwise deal with any
Seller and the Servicer with the same rights as it would have if it were not the
Trustee.
Section 8.16 INDEMNIFICATION OF TRUSTEE. TMM, on behalf of itself and each
of the other Sellers, shall indemnify and hold harmless the Trustee, each Paying
Agent, each Transfer Agent and Registrar and their respective officers,
directors, employees or agents (each, a "TRUSTEE INDEMNIFIED PARTY") from and
against any Indemnified Loss (whether on account of settlements or otherwise,
and whether or not the relevant Trustee Indemnified Party is a party to any
action or proceeding that gives rise to Indemnified Losses) suffered or
sustained by reason of any acts, omissions or alleged acts or omissions arising
out of or in connection with the acceptance or administration of any Transaction
Document or the use of proceeds therefrom or the trusts hereunder and thereunder
and its duties hereunder or thereunder, including in the case of the Trustee,
Indemnified Losses suffered or sustained (i) while performing any duties or
obligations of the Paying Agent or Transfer Agent and Registrar pursuant to
SECTION 8.1(h) above or (ii) with respect to the signing of tax returns pursuant
to SECTION 8.9 above; PROVIDED, HOWEVER, that TMM shall not indemnify any
Trustee Indemnified Party to the extent of any Indemnified Losses which are
found in a final judgment of a court of competent jurisdiction to have been
caused by gross negligence or willful misconduct by such Trustee Indemnified
Party. The obligations of the Sellers under this SECTION 8.16 are full recourse
obligations and shall survive the termination of the Trust and the resignation
or removal of the Trustee.
ARTICLE IX
TERMINATION
Section 9.1 TERMINATION OF TRUST. The respective obligations and
responsibilities of each Seller, the Servicer, the Paying Agent and the Trustee
created hereby (other than the obligation of the Paying Agent to make payments
to Certificateholders as hereafter set forth) shall terminate, except with
respect to the duties described in SECTION 3.4, SECTION 5.6, SECTION 6.9,
SECTION 8.1, SECTION 8.2, SECTION 8.16, and SECTION 9.3(b), on the Trust
Termination Date.
Section 9.2 MANDATORY REPURCHASE AND FINAL TERMINATION OF INVESTOR
CERTIFICATES OF ANY SERIES. Provisions relating to the mandatory repurchase of
any Series of Investor Certificates, if required with respect to any Series,
shall be set forth in the related Supplement for such Series.
Section 9.3 FINAL PAYMENT WITH RESPECT TO ANY SERIES.
(a) Written notice of any termination, specifying the Distribution
Date upon which the Investor Certificateholders of any Series may surrender
their Certificates for payment of the final distribution with respect to such
Series and cancellation, shall be given (subject to at least five (5) Business
Days prior notice from the Servicer to the Trustee) by the Trustee to Investor
Certificateholders of such Series (and the Enhancement Provider if so provided
in the
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related Supplement), mailed (or in the case of Bearer Certificates, published in
the manner specified in the related Supplement) not later than the Determination
Date preceding the date of such final distribution (or in the manner provided by
the Supplement relating to such Series) specifying (i) the Distribution Date
(which shall be the first Distribution Date after the date on which the deposit
is made) upon which final payment of such Investor Certificates will be made
upon presentation and surrender of such Investor Certificates at the office or
offices therein designated (which, in the case of Bearer Certificates, shall be
outside the United States), (ii) the amount of any such final payment and (iii)
that the Record Date otherwise applicable to such Distribution Date is not
applicable, payments being made to the Certificateholders on such Distribution
Date only upon presentation and surrender of the Investor Certificates at the
office or offices therein specified. The Servicer's notice to the Trustee in
accordance with the preceding sentence shall be accompanied by an Officer's
Certificate setting forth the information specified in ARTICLE V of the
applicable Supplement covering the period during the then current calendar year
through the date of such notice and setting forth the date of such final
distribution. Payments shall be made by the Paying Agent to the Investor
Certificateholders in the same manner as provided in the applicable Supplement
for other distributions. The Trustee shall give such notice to the Transfer
Agent and Registrar and the Paying Agent at the time such notice is given to
such Investor Certificateholders.
(b) Notwithstanding the termination of the Trust pursuant to
SECTION 9.2 above or the occurrence of the Series Termination Date with respect
to any Series, all funds then on deposit in the Collection Account, Sweep
Account, Peso Denominated Account or any Series Account shall continue to be
held in trust for the benefit of the Certificateholders of the related Series,
and the Paying Agent shall pay such funds to the Certificateholders of the
related Series upon surrender of their Certificates (which surrenders and
payments, in the case of Bearer Certificates, shall be made only outside the
United States). In the event that all of the Investor Certificateholders of any
Series shall not surrender their Certificates for cancellation within six months
after the date specified in the notice described in SECTION 9.3(a) above, the
Trustee shall give a second written notice (in the case of Bearer Certificates,
publication notice) to the remaining Investor Certificateholders of such Series
upon receipt of the appropriate records from the Transfer Agent and Registrar to
surrender their Certificates for cancellation and receive the final distribution
with respect thereto. If within one and one-half years after the second notice
with respect to a Series, all the Investor Certificates of such Series shall not
have been surrendered for cancellation, the Trustee may take appropriate steps,
or may appoint an agent to take appropriate steps, to contact the remaining
Investor Certificateholders of such Series concerning surrender of their
Certificates, and the cost thereof shall be paid out of the funds in the
Collection Account or any Series Account held for the benefit of such Investor
Certificateholders. The Paying Agent shall pay to the Sellers' Representative
upon request any monies held by them for the payment of the principal or
interest which remains unclaimed for two (2) years. After payment to the
Sellers' Representative, Investor Certificateholders entitled to the money must
look solely to the Sellers for payment as general creditors unless an applicable
abandoned property law designates another Person.
(c) All Certificates surrendered for payment of the final
distribution with respect to such Certificates and cancellation shall be
canceled by the Transfer Agent and Registrar and be disposed of in a manner
satisfactory to the Trustee and the Seller.
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Section 9.4 SELLERS' TERMINATION RIGHTS. Upon the termination of the Trust
pursuant to SECTIONS 9.1 and 9.3(b) above and the surrender of the Sellers'
Certificate, the Subordinated Certificate and all Investor Certificates of all
outstanding Series, the Trustee shall transfer to the Sellers' Representative
for the benefit of the Holder of the Sellers' Certificate (without recourse,
representation or warranty) all right, title and interest of the Trust in the
Purchased Receivables, whether then existing or thereafter created, all monies
due or to become due with respect thereto and all proceeds thereof except for
amounts held by the Trustee pursuant to SECTION 9.3(b) above. The Trustee shall
execute and deliver such instruments of transfer and assignment, on behalf of
the Trust, in each case without recourse, as shall be reasonably requested by
the Sellers to vest in the Sellers all right, title and interest which the Trust
had in the Purchased Receivables.
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.1 AMENDMENT.
(a) (i) Any Transaction Document may be amended from time to
time by the Servicer, the Sellers and the Trustee, without the consent of any
Holder of any outstanding Certificate, to cure any ambiguity, to correct a
defect or to correct or supplement any provisions herein which may be
inconsistent with any other provisions herein or which may be required due to
any change in applicable law, to add any other provisions with respect to
matters or questions arising under this Master Trust Agreement or any Supplement
which shall not be inconsistent with the provisions of this Master Trust
Agreement or any Supplement; PROVIDED, HOWEVER, that such action shall not
adversely affect in any material respect the interests of any Investor
Certificateholder or violate or conflict with any other Master Trust Agreement
Override Section. The Trustee shall be entitled to receive an Officers'
Certificate and/or an Opinion of Counsel on these matters, prior to executing an
amendment, and the Trustee shall be fully protected in relying thereon. The
Trustee may, but shall not be obligated to, enter into any such amendment which
affects the Trustee's rights, duties or immunities under this Master Trust
Agreement or otherwise.
(ii) This Master Trust Agreement and any Supplement may be
amended from time to time by the Servicer, the Sellers and the Trustee,
without Certificateholder consent, to provide that Bearer Certificates
issued with respect to any Series may be registrable as to principal, to
change or eliminate any restrictions on the payment of principal of or any
interest on such Bearer Certificates, to permit such Bearer Certificates to
be issued in exchange for Registered Certificates or Bearer Certificates of
other authorized denominations or to permit the issuance of uncertificated
certificates, subject to certain conditions that may be required at such
time by the Trustee.
(b) Any Transaction Document may also be amended from time to time
by the Servicer, the Sellers and the Trustee with the consent of the Series
Required Investor Certificateholders of each outstanding Series adversely
affected by such amendment and also so long as the Series 2001-A Certificates
are outstanding with the consent of the Series 2001-A Series Required Investor
Certificateholders (Super Majority), which consent may be withheld in the sole
and absolute discretion of the Series 2001-A Certificateholders, if such
amendment
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would cause any Supplement other than the Series 2001-A Supplement to provide
for (1) an earlier Expected Final Distribution Date or other maturity, (2) a
greater level of amortization, (3) any additional or more restrictive covenants
or Rapid Amortization Events, (4) additional optional or obligatory repurchase
rights other than those set forth in the Series 2002-A Supplement in the form
set forth in EXHIBIT P hereto or (5) increase the Certificate Balance of any
other Series (and, to the extent provided in any Supplement, with the consent of
the related Enhancement Provider, which consent shall not be unreasonably
withheld) for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of this Master Trust Agreement or any
Supplement or modifying in any manner the rights of Certificateholders of any
Series then issued and outstanding; PROVIDED, HOWEVER, that the right of any
Enhancement Provider to consent pursuant to any Supplement to any such amendment
shall be limited to matters involving (i) the provisions of this Master Trust
Agreement which affect such Enhancement Provider, (ii) the provisions of the
related Supplement, and (iii) the rights of Certificateholders of the related
Series). Notwithstanding the foregoing, (I) no such amendment shall be permitted
and no such amendment shall (x) reduce in any manner the amount of, or delay the
timing of, distributions which are required to be made on any Investor
Certificate of such Series, (y) change the definition of or the manner of
calculating the Series Percentage or Certificate Balance of such Series or (z)
reduce the percentage of the Certificate Balance required to consent to any such
amendment, without, in each case, the consent of each Investor Certificateholder
of each Series adversely affected thereby. In addition to and without limitation
of the foregoing, no amendment or waiver of any restriction or prohibition
(including any amendment or waiver of a definition related to or used with
respect to such restriction or prohibition) on payments to any Series prior to
the repayment in full of the Series 2001-A Certificateholders shall be effective
without the consent of the Series 2001-A Series Required Investor
Certificateholders (Super Majority) which consent may be withheld in the sole
and absolute discretion of the Series 2001-A Certificateholders.
(c) In connection with any amendment to any Transaction Document
effected under SECTION 10.1(b) above, the Trustee shall be entitled to receive
an Opinion of Counsel for the Seller and Servicer covering such matters as the
Trustee may reasonably request.
(d) Promptly after the execution of any amendment to any
Transaction Document, the Trustee shall furnish such amendment to any related
Enhancement Provider.
(e) Promptly after execution of any amendment to any Transaction
Document, the Trustee shall furnish written notice of the substance of each
amendment to the Investor Certificateholders of each Series (or, with respect to
an amendment of a Supplement, to the Investor Certificateholders of the
applicable Series). The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Investor Certificateholders shall be
subject to such reasonable requirements as the Trustee may prescribe.
Section 10.2 PROTECTION OF RIGHT, TITLE AND INTEREST TO TRUST.
(a) Each Seller shall deliver to the Trustee file-stamped copies
of, or filing receipts for, any financing statement recorded, registered or
filed as provided in SECTION 2.7 above, as soon as available following such
recording, registration or filing.
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(b) Within 30 days after any Seller makes any change in its name,
identity or corporate structure which would make any financing statement or
continuation statement filed in accordance with SECTION 10.2(a) above materially
misleading within the meaning of the UCC, such Seller shall give the Trustee
written notice of any such change and shall file such financing statements or
amendments as may be necessary to continue the perfection of the Trust's
security interest in the Purchased Receivables and the proceeds thereof.
(c) Each Seller and the Servicer will give the Trustee prompt
written notice of any relocation of any office from which it services Purchased
Receivables or keeps records concerning the Purchased Receivables (including the
establishment of any office from which it services the Purchased Receivables or
keeps records concerning the Purchased Receivables) or of its principal
executive office and whether, as a result of such relocation, the applicable
provisions of the UCC would require the filing of any amendment of any
previously filed financing or continuation statement or of any new financing
statement and shall file such financing statements or amendments as may be
necessary to continue the perfection of the Trust's security interest in the
Purchased Receivables and the proceeds thereof.
Section 10.3 LIMITATION ON RIGHTS OF CERTIFICATEHOLDERS.
(a) The death or incapacity of any Certificateholder shall not
operate to terminate this Master Trust Agreement or the Trust, nor shall such
death or incapacity entitle such Certificateholder's legal representatives or
heirs to claim an accounting or to take any action or commence any proceeding in
any court for a partition or winding up of the Trust, nor otherwise affect the
rights, obligations and liabilities of the parties hereto or any of them.
(b) No Certificateholder shall have any right to vote (except with
respect to the Investor Certificateholders as provided in SECTION 10.1 above) or
in any manner otherwise control the operation and management of the Trust, or
the obligations of the parties hereto, nor shall anything herein set forth, or
contained in the terms of the Certificates, be construed so as to constitute the
Certificateholders from time to time as partners or members of an association;
nor shall any Certificateholder be under any liability to any third Person by
reason of any action taken by the parties to this Master Trust Agreement
pursuant to any provision hereof.
(c) No Certificateholder shall have any right by virtue of any
provisions of this Master Trust Agreement to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this Master
Trust Agreement, unless an Affected Certificateholder or Series shall have made
written request upon the Trustee to institute such action, suit or proceeding in
its own name as Trustee hereunder and shall have offered to the Trustee such
indemnity as it may require against the costs, expenses and liabilities to be
incurred therein or thereby, and the Trustee, for sixty (60) days after its
receipt of such notice, request and offer of indemnity, shall have neglected or
refused to institute any such action, suit or proceeding; it being understood
and intended, and being expressly covenanted by each Certificateholder with
every other Certificateholder and the Trustee, that no one or more
Certificateholders shall have the right in any manner whatever by virtue or by
availing itself or themselves of any provisions of this Master Trust Agreement
to affect, disturb or prejudice the rights of the Certificateholders of any
other of the Certificates, or to obtain or seek to obtain priority over or
preference to any other such Certificateholder, or to enforce any right under
this Master Trust Agreement, except
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in the manner herein provided and, subject to the rights of the Series 2001-A
Investor Certificateholders under SECTION 8.1(d) hereof and under Sections
3.1(a) and 7.1(a) of the Series 2001-A Supplement, for the equal, ratable and
common benefit of all Certificateholders. For the protection and enforcement of
the provisions of this SECTION 10.3, each and every Certificateholder and the
Trustee shall be entitled to such relief as can be given either at law or in
equity. For purposes of this section, the term "AFFECTED CERTIFICATEHOLDER OR
SERIES" shall mean any Certificateholder or the Series Required Investor
Certificateholders that may be adversely affected but for the institution of
such a suit, action or proceeding by the Trustee, which shall conclusively be
deemed to mean (x) solely the Series 2001-A Series Required Investor
Certificateholders with respect to any cause of action to enforce either SECTION
8.1(d) hereof or Section 3.1 or Section 7.1(a) of the Series 2001-A Supplement,
or (prior to the Series 2001-A Repayment Date) the prohibition on payment at
Section 3.1(a) of the Series 2002-A Supplement or (y) solely the Series 2002-A
Series Required Investor Certificateholders with respect to any cause of action
to enforce either Section 3.1(b) or (following the Series 2001-A Repayment Date)
Section 3.1(a) of the Series 2002-A Supplement.
Section 10.4 GOVERNING LAW. THIS MASTER TRUST AGREEMENT AND THE
CERTIFICATES SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS (OTHER THAN SECTION
5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW), AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS, EXCEPT THAT SECTIONS 2.1, 2.2 AND 9.2 SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF MEXICO, WITHOUT REFERENCE TO THE CONFLICT OF LAWS
PROVISIONS THEREOF.
Section 10.5 NOTICES. All demands, notices, instructions and communications
hereunder shall be in English and shall be in writing and shall be deemed to
have been duly given if personally delivered at or sent by first class mail,
facsimile or courier to and received by:
(a) in the case of the Sellers, the Sellers' Representative, the
Guarantor and the Servicer (if the Servicer is TMM), to Grupo TMM, S.A., ▇▇. ▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, D.F. C.P. 14010, Fax No.
▇▇▇-▇▇▇▇-▇▇▇▇-▇▇▇▇, Attention: Chief Financial Officer, with a copy to ▇▇▇▇▇▇,
▇▇▇▇▇▇-▇▇▇▇▇▇▇, Colt & Mosle LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq., Fax No. ▇▇▇-▇▇▇-▇▇▇▇;
(b) in the case of the Trustee, to The Bank of New York,
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇,
Global Structured Products Unit, Fax No. ▇▇▇-▇▇▇-▇▇▇▇; and
(c) in the case of the Enhancement Provider for a particular
Series, the address, if any, specified in the Supplement relating to such
Series;
or, as to each party, at such other address as shall be designated by such party
in a written notice to each other party. Unless otherwise provided with respect
to any Series in the related Supplement, any notice required or permitted to be
mailed to a Certificateholder shall be given by first class mail, postage
prepaid, at the address of such Certificateholder as shown in the
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Certificate Register or, with respect to any notice required or permitted to be
made to the Holders of Bearer Certificates, by publication in the manner
provided in the related Supplement. Any notice so mailed within the time
prescribed in this Master Trust Agreement shall be conclusively presumed to have
been duly given, whether or not the Certificateholder receives such notice.
Section 10.6 SEVERABILITY OF PROVISIONS. If any one or more of the
covenants, agreements, provisions or terms of this Master Trust Agreement shall
for any reason whatsoever be held invalid, such covenants, agreements,
provisions or terms shall be deemed severable from the remaining covenants,
agreements, provisions or terms of this Master Trust Agreement and shall in no
way affect the validity or enforceability of the other provisions of this Master
Trust Agreement or of the Certificates or rights of the Certificateholders
thereof.
Section 10.7 CERTIFICATES NON-ASSESSABLE AND FULLY PAID. It is the
intention of the parties to this Master Trust Agreement that the
Certificateholders shall not be personally liable for obligations of the Trust,
that the undivided interests represented by the Certificates shall be
non-assessable for any losses or expenses of the Trust or for any reason
whatsoever, and that Certificates upon authentication thereof by the Trustee
pursuant to SECTION 5.2 above are and shall be deemed fully paid.
Section 10.8 FURTHER ASSURANCES. Each Seller, the Guarantor, Sellers'
Representative and the Servicer agree to do and perform, from time to time, any
and all acts and to execute any and all further instruments required or
reasonably requested by the Trustee more fully to effect the purposes of this
Master Trust Agreement, including, without limitation, the execution of any
financing statements or continuation statements relating to the Purchased
Receivables for filing under the provisions of any applicable jurisdiction.
Section 10.9 NO WAIVER; CUMULATIVE REMEDIES. No failure to exercise and no
delay in exercising, on the part of the Trustee, any Enhancement Provider or the
Investor Certificateholders, any right, remedy, power or privilege hereunder,
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges herein provided are cumulative and
not exhaustive of any rights, remedies, powers and privileges provided by law.
Section 10.10 COUNTERPARTS. This Master Trust Agreement may be executed in
two (2) or more counterparts (and by different parties on separate
counterparts), each of which shall be an original, but all of which together
shall constitute one and the same instrument.
Section 10.11 THIRD-PARTY BENEFICIARIES. This Master Trust Agreement will
inure to the benefit of and be binding upon the parties hereto, the
Certificateholders and, to the extent provided in the related Supplement, the
Enhancement Provider named therein, and their respective successors and
permitted assigns. Except as otherwise provided in SECTION 3.4 above, this
ARTICLE X and solely with respect to the rights of the Series 2001-A
Certificateholders, as provided for in any Supplement, no other Person will have
any right or obligation hereunder.
Section 10.12 ACTIONS BY CERTIFICATEHOLDERS.
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(a) Wherever in this Master Trust Agreement a provision is made
that an action may be taken or a notice, demand or instruction given by Investor
Certificateholders, such action, notice or instruction may be taken or given by
any Investor Certificateholder, unless such provision requires a specific
percentage of Investor Certificateholders.
(b) Any request, demand, authorization, direction, notice,
consent, waiver or other act by a Certificateholder shall bind such
Certificateholder and every subsequent Holder of such Certificate issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done or omitted to be done by the Trustee or the Servicer
in reliance thereon, whether or not notation of such action is made upon such
Certificate.
Section 10.13 RULE 144A INFORMATION. For so long as any of the Investor
Certificates of any Series or any Class are "restricted securities" within the
meaning of Rule 144(a)(3) under the Securities Act, the Sellers, the Servicer
and the Trustee for such Series agree to cooperate with each other to provide to
any Investor Certificateholders of such Series or Class and to any prospective
purchaser of Certificates designated by such an Investor Certificateholder upon
the request of such Investor Certificateholder or prospective purchaser, any
information required to be provided to such holder or prospective purchaser to
satisfy, as applicable, the condition set forth in Rule 144 A(d)(4) under the
Securities Act.
Section 10.14 MERGER AND INTEGRATION. Except as specifically stated
otherwise herein, this Trust Agreement sets forth the entire understanding of
the parties relating to the subject matter hereof, and all prior understandings,
written or oral, are superseded by this Master Trust Agreement. This Master
Trust Agreement may not be modified, amended, waived or supplemented except as
provided herein.
Section 10.15 HEADINGS. The headings herein are for purposes of reference
only and shall not otherwise affect the meaning or interpretation of any
provision hereof.
Section 10.16 BINDING EFFECT. This Master Trust Agreement and the other
Transaction Documents to which TMM and each other Seller are a party will be
binding upon and inure to the benefit of TMM, each other Seller, the Trustee,
the Servicer, the Sellers' Representative, each Investor Certificateholder and
their respective permitted successors and assigns hereunder and thereunder.
Section 10.17 FORUM SELECTION AND SUBMISSION TO JURISDICTION. EACH OF THE
PARTIES HERETO (AND ITS SUCCESSORS AND ASSIGNS) AGREES THAT ANY LITIGATION BASED
ON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH, ANY TRANSACTION DOCUMENT OR
ANY RELATED TRANSACTION, ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER VERBAL OR WRITTEN), ANY ACTIONS OF EACH SELLER OR THE SERVICER, OR
UNDER OR IN CONNECTION WITH ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT
DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION WITH ANY
TRANSACTION DOCUMENT OR ARISING FROM ANY RELATIONSHIP EXISTING IN CONNECTION
WITH ANY TRANSACTION DOCUMENT OR ANY RELATED TRANSACTION, MAY BE BROUGHT AND
MAINTAINED IN (i) ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ IN THE CITY
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OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK AND (ii) SOLELY WITH RESPECT TO ACTIONS BROUGHT AGAINST IT AS
DEFENDANT, THE COMPETENT COURTS OF ITS CORPORATE DOMICILE. EACH OF THE PARTIES
HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO SUCH
JURISDICTION FOR SUCH PURPOSE AND TO THE FULLEST EXTENT PERMITTED BY LAW, (A)
IRREVOCABLY WAIVES ANY OBJECTION IT MAY HAVE AT ANY TIME TO THE LAYING OF VENUE
OF ANY LITIGATION ARISING OUT OR OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTION DOCUMENTS BROUGHT IN ANY SUCH COURT; (B) IRREVOCABLY WAIVES ANY
CLAIM THAT ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM; AND (C) IRREVOCABLY WAIVES THE RIGHT TO OBJECT, WITH RESPECT
TO SUCH LITIGATION BROUGHT IN ANY SUCH COURT, THAT SUCH COURT DOES NOT HAVE
JURISDICTION OVER IT. EACH OF THE PARTIES HERETO HEREBY EXPRESSLY AND
IRREVOCABLY WAIVES ALL RIGHTS OF JURISDICTION IN ANY SUCH LITIGATION, WHICH IT
MAY NOW OR HEREAFTER BE AFFORDED BY LAW, IN ANY OTHER FORUM. EACH OF THE PARTIES
HERETO FURTHER AGREES THAT A FINAL JUDGMENT IN ANY SUCH SUIT, ACTION OR
PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY
SUIT ON THE JUDGMENT OR IN ANY MANNER PROVIDED BY LAW. EACH OF THE SELLERS AND
THE SERVICER HEREBY DESIGNATES THE CT CORPORATION SYSTEM WITH OFFICES CURRENTLY
LOCATED AT ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ AS ITS AGENT TO RECEIVE
ON ITS BEHALF SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDINGS IN ANY SUCH COURT;
IN THE EVENT THAT SUCH AGENT OR ANY SUCCESSOR SHALL CEASE TO BE LOCATED IN THE
BOROUGH OF MANHATTAN, EACH SELLER AND THE SERVICER SHALL PROMPTLY AND
IRREVOCABLY BEFORE THE RELOCATION OF SUCH AGENT FOR SERVICE OF PROCESS, IF
PRACTICABLE, OR PROMPTLY THEREAFTER, DESIGNATE A SUCCESSOR AGENT, WHICH
SUCCESSOR AGENT SHALL BE LOCATED IN THE BOROUGH OF MANHATTAN, AND NOTIFY THE
OTHER PARTIES HERETO, TO ACCEPT ON ITS BEHALF SERVICE OF ANY AND ALL LITIGATION,
PROCESS OR OTHER DOCUMENTS HEREUNDER OR ARISING HERE FROM, SUCH SERVICE BEING
HEREBY ACKNOWLEDGED BY EACH SELLER AND THE SERVICER TO BE EFFECTIVE AND BINDING
SERVICE IN EVERY RESPECT. A COPY OF SUCH PROCESS SO SERVED SHALL BE MAILED BY
REGISTERED MAIL, POSTAGE PREPAID, TO THE RELEVANT SELLER AND/OR THE SERVICER, AS
APPLICABLE, AT ITS ADDRESS FOR NOTICES SET FORTH IN SECTION 10.5 OF THIS MASTER
TRUST AGREEMENT.
Section 10.18 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY EXPRESSLY
WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR
DEFEND ANY RIGHTS UNDER ANY TRANSACTION DOCUMENT OR ANY RELATED TRANSACTION, OR
UNDER ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN
THE FUTURE BE DELIVERED IN CONNECTION THEREWITH OR ARISING FROM ANY RELATIONSHIP
EXISTING IN CONNECTION WITH ANY TRANSACTION DOCUMENT
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OR ANY RELATED TRANSACTION, AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL
BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
Section 10.19 CONFIDENTIALITY. The Trustee shall hold all non-public
information (which has been identified as such by the Sellers' Representative)
obtained pursuant to the requirements of the Transaction Documents in accordance
with its customary procedures for handling confidential information of this
nature and in accordance with safe and sound banking practices and in any event
may make disclosure to any of its examiners, Affiliates, outside auditors,
counsel and other professional advisors in connection with the Transaction
Documents or as reasonably required by any BONA FIDE transferee, participant or
assignee (including pursuant to a put, purchase agreement or liquidity
arrangement) or as required or requested by any governmental agency or
representative thereof or pursuant to legal process.
Section 10.20 SET-OFF. In addition to any rights and remedies of any
Investor Certificateholder (each a "PROCEEDING PARTY") provided by law, upon the
occurrence of any Rapid Amortization Event, each Proceeding Party is authorized
at any time and from time to time, without prior notice to the Sellers, any such
notice being waived by the Sellers to the fullest extent permitted by law, to
proceed directly, by right of set-off, banker's lien, or otherwise, against any
assets of the Sellers which may be in the hands of such Proceeding Party
(including all general or special, time or demand, provisional or other deposits
and other indebtedness owing by such Proceeding Party to or for the credit or
the account of such Seller) and apply such assets against the Series 2001-A
Certificate Balance, irrespective of whether such Proceeding Party shall have
made any demand therefor. Each Investor Certificateholder agrees to promptly
notify the Seller and the Trustee after any such set-off and application made by
such Investor Certificateholder; PROVIDED, HOWEVER, that the failure to give
such notice shall not affect the validity of such set-off and application.
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IN WITNESS WHEREOF, the Sellers, the Servicer, the Guarantor and the
Trustee have caused this Master Trust Agreement to be duly executed by their
respective officers as of the day and year first above written.
GRUPO TMM, S.A.,
as Seller, Sellers' Representative, Guarantor and
Servicer
By:
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Name:
Title:
S-1
THE BANK OF NEW YORK, not in its individual
capacity but solely as Trustee, Paying Agent,
Transfer Agent and Registrar
By:
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Name:
Title:
S-2
TMM LOGISTICS, S.A. de C.V.,
as Seller
By:
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Name:
Title:
S-3
NAVIERA DEL ▇▇▇▇▇▇▇▇, ▇.▇. de C.V., as Seller
By:
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Name:
Title:
S-4