Exhibit
10.35


 


FOURTH AMENDMENT TO


VOTING AGREEMENT


 


 


GRUPO TMM, S.A.


 


 


- and -


 


 


SUPPORTING NOTEHOLDERS


 


 


Dated as of July 29, 2004


 


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FOURTH AMENDMENT TO VOTING AGREEMENT


 


This FOURTH AMENDMENT TO VOTING AGREEMENT,
dated as of July 29, 2004, is entered into by and among (a) Grupo TMM,
S.A., a corporation (sociedad anónima)
organized under the laws of the United Mexican States (the “Company”),
and (b) the Supporting Noteholders (as defined in the Voting Agreement which is
defined below).


 


RECITALS:


 


A.                                   The Company and the Supporting
Noteholders previously entered into that certain Voting Agreement dated as of
December 9, 2003, as amended by the First Amendment to Voting Agreement,
dated as of March 31, 2004, the Letter Amendment to Voting Agreement,
dated July 2, 2004, and the Letter Amendment and Waiver, dated
July 22, 2004 (collectively, the “Voting Agreement”).


 


B.                                     As of the date hereof, Supporting
Noteholders that beneficially own (or that are investment managers or advisors
for the beneficial owners of) approximately 72% of the aggregate principal
amount of Existing Notes are party to the Voting Agreement.


 


C.                                     On June 23, 2004, the Company
launched the Exchange Offer and, as of July 22, 2004, holders of 95.7% of
the 2003 Notes and holders of 97.3% of the 2006 Notes validly tendered their
Existing Notes pursuant to the Exchange Offer.


 


D.                                    On July 22, 2004, certain
Supporting Noteholders that, together, represented Required Noteholders, waived
the provisions of Section 3(f) of the Voting Agreement to permit the
Company to extend the term of the Exchange Offer until August 5, 2004, and
approved the modification of the Minimum Tender Condition to correspond to the
percentage of 2003 Notes and 2006 Notes validly tendered in the Exchange Offer
as of such date.


 


E.                                      On July 23, 2004, the Company
issued a press release and filed a Prospectus Supplement with respect to the
Exchange Offer pursuant to which the Company (i) amended the Exchange Offer to
modify the Minimum Tender Condition as described above, (ii) extended the term
of the Exchange Offer until August 5, 2004, and (iii) granted withdrawal
rights to holders that tendered their Existing Notes in the Exchange Offer.


 


F.                                      Due to a broker miscommunication,
the percentage of holders of 2003 Notes that, as of July 22, 2004, validly


 


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tendered their Existing
Notes pursuant to the Exchange Offer was actually 95.3% and, consequently, the
Company desires to further amend the Exchange Offer to modify the Minimum
Tender Condition to correspond to the actual percentage of 2003 Notes validly
tendered in the Exchange Offer as of such date.


 


G.                                     The Company desires to consummate
the Restructuring pursuant to the Exchange Offer without having to commence a
Bankruptcy Proceeding and, in furtherance thereof, the Company (i) desires to
confirm the amendment and extension of the Exchange Offer as described in
Recitals D through F above and (ii) has requested that certain Supporting
Noteholders provide financing to permit the Company to retire any 2003 Notes
that are not validly tendered in the Exchange Offer, to defease, or cure any
payment defaults under, any 2006 Notes that are not validly tendered in the
Exchange Offer, and for certain other purposes (the “New Money Financing”),
and certain Supporting Noteholders have agreed to provide such financing.


 


H.                                    On or about the date hereof, the
Company intends to issue a press release and file with the SEC a second
Prospectus Supplement (in substantially the form attached as Annex D
hereto) with respect to the Exchange Offer pursuant to which the Company will
(i) amend the Exchange Offer to modify the Minimum Tender Condition as
described in Recital F above, (ii) disclose the terms of the New Money
Financing and the other amendments to the Voting Agreement contemplated herein,
and (iii) disclose the other matters described in such Prospectus
Supplement (including the Company’s agreement to pay the obligations of the
Company under the J.B. Hunt promissory note in New Notes (the “J.B. Hunt
Notes”), and the Company’s agreement to pay certain fees payable to the
Company’s financial advisors in New Notes (the “Advisor Notes”)).


 


I.                                         The Company and certain of the
Supporting Noteholders desire to amend the Voting Agreement to effectuate the
foregoing and certain other amendments as provided herein.


 


J.                                        Pursuant to Section 12 of the
Voting Agreement, the Voting Agreement may be amended in a writing signed by
the Company and the Required Noteholders (as determined at such time).


 


Therefore,
in consideration of the premises and the mutual covenants and agreements set
forth in this Fourth Amendment to Voting Agreement, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, 


 


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each of the parties
signatory to this Fourth Amendment to Voting Agreement, intending to be bound
hereby, agrees as follows:


 


AGREEMENT:


 


1.                                       Amendment
and Extension.  The parties hereby
confirm that (i) the Minimum Tender Condition has been amended to mean “there
being validly tendered and not withdrawn 95.3% in aggregate principal amount of
the outstanding 2003 Notes and 97.3% in aggregate principal amount of the
outstanding 2006 Notes”, and (ii) the expiration date of the Exchange
Offer has been extended until August 5, 2004 (the “Exchange Offer
Expiration Date”).


 


2.                                       Extension
of Certain Milestone Dates.


 


(a)                                  Each
reference in Section 8(c)(ii) and Section 8(d)(i) of the Voting Agreement
to (i) the date “July 22, 2004” is deleted and replaced with “the
date that is the third Business Day following the Exchange Offer Expiration
Date, but in no event later than the Final Extension Date” and (ii) the date
“August 5, 2004” is deleted and replaced with “August 20, 2004”
(referred to herein as the “Final Extension Date”).


 


(b)                                 The first four paragraphs of
Section 8(g) are deleted in their entirety and replaced with the
following:


 


(g)                                 If


 


(i)                                           [Intentionally omitted],


 


(ii)                                        the Company has not consummated the
Exchange Offer or commenced the Bankruptcy Proceeding on or before the date
that is the third Business Day following the Exchange Offer Expiration Date,
but in no event later than the third Business Day following the Final Extension
Date, in accordance with Section 8(c)(ii) of this Agreement, or


 


(iii)                                     a Company Default within the meaning
of Sections 8(a)(iii) or 8(a)(iv) of this Agreement has occurred and is
continuing,


 


then the Supporting Noteholders then
party to this Agreement (and not in default hereunder) shall be entitled to
receive the Delay Fee with respect to the Existing Notes held by such
Supporting Noteholders for the period from
and after (A) [intentionally omitted], or (B) the date that is
the third Business Day


 


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following the Exchange Offer Expiration Date,
but in no event later than the third Business Day following the Final Extension
Date (in the case of clause (ii) of this Section 8(g)), or
(C) the date of such Company Default (in the case of clause (iii) of
this Section 8(g)), as applicable, to
and including the earliest to occur of (w) the date the Company
commences the Bankruptcy Proceeding, (x) the date the Company cures the
applicable Company Default under subclause (iii) above, by consummating
the Exchange Offer or commencing the Bankruptcy Proceeding, whichever is
applicable, (y) the Outside Date, and (z) the Settlement Date (any
such period, the “Delay Period”); provided, however, that
if the Settlement Date does not occur pursuant to the Exchange Offer and the
Outside Date occurs after the commencement of the Bankruptcy Proceeding, then
the Delay Fee shall be deemed to have accrued on all Existing Notes and all
Noteholders will be entitled to receive the Delay Fee for the applicable Delay
Period.


 


3.                                       New Money
Financing; Other Issuances. 
The Company and the Supporting Noteholders hereby acknowledge and agree
that the New Money Financing as described in the Term Sheet attached hereto as Annex A
is approved and deemed to be part of the terms of the Restructuring and, for
the avoidance of doubt, neither the Company’s consummation of the New Money
Financing in accordance with the terms set forth in such Term Sheet nor the
issuance of the J.B. Hunt Notes or the Advisor Notes as described in the
Prospectus Supplement shall be deemed to be a Company Default under
Section 8(a)(v) of  the Voting
Agreement.  Accordingly, the “Term
Sheet” is hereby amended to include the Term Sheet for the New Money Financing attached as Annex A to this
Fourth Amendment.


 


4.                                       Amendment
of Registration Statement.  On
July 30, 2004,  the Company will
file with the SEC the Prospectus
Supplement to the Company’s Registration Statement on Form F-4 with
respect to the Exchange Offer, as described in Recital G above.


 


5.                                       No Further
Extension. Notwithstanding anything to the contrary contained herein or
in the Voting Agreement, the Company may not extend the Exchange Offer
Expiration Date or grant withdrawal rights in connection with any such
extension, without the prior written consent of the Required Noteholders,
unless required to do so by applicable law. 
For the avoidance of doubt, if the Company extends the Exchange Offer
Expiration Date to a date that is later than the Final Expiration Date


 


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without
the consent of the Required Noteholders, such extension will have and remain
subject to the provisions and consequences specified in Sections 8(c)(ii),
8(d)(i) and 8(g) of the Voting Agreement as same are amended herein.


 


6.                                       No
Withdrawal of Tenders. 
The Supporting Noteholders hereby acknowledge and agree that no
Supporting Noteholder may (a) withdraw any Existing Notes previously
tendered in the Exchange Offer in connection with any withdrawal rights granted
in connection with the extension of the expiration date and the amendment of
the Exchange Offer contemplated herein or (b) terminate the Voting
Agreement as to any such Supporting Noteholder solely by reason of the
extension and amendment of the Exchange Offer contemplated herein.


 


7.                                       Registration
of New Notes.  Notwithstanding
anything to the contrary contained in Section 32 of the Voting Agreement,
the Company and the Supporting Noteholders hereby acknowledge and agree that,
on the Settlement Date or the Outside Date, as applicable, (a) the Company
shall execute and deliver in favor of the holders of the New Notes, the
Registration Rights Agreement in the form attached hereto as Annex B
and (b) the Supporting Noteholders shall be entitled to the registration
rights set forth in such Registration Rights Agreement with respect to their
New Notes (including New Notes issued in connection with the New Money
Financing), Additional New Notes and Delay Fee New Notes.


 


8.                                       Amendment
of Certain Sections.


 


(a)                                  Each of
Section 3(c)(i) and Section 8(a)(iv) of the Voting Agreement is
hereby deleted in its entirety and replaced with the following:


 


If all of the conditions
to the Exchange Offer have not been sooner satisfied and/or waived, then,
within five Business Days following the Exchange Offer Expiration Date (or, if
sooner, the Final Expiration Date), the Company shall commence the Bankruptcy
Proceeding in accordance with the Bankruptcy Plan; provided, however,
that if the Company is using commercially reasonable efforts to commence a
Concurso, the date to commence the Bankruptcy Proceeding hereunder shall be
extended by 30 days.


 


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(b)                                 Section 8(a)(iii)
of the Voting Agreement is hereby deleted in its entirety and replaced with the
following:


 


if, upon the Exchange
Offer Expiration Date, the Minimum Tender Condition and all other conditions to
the Exchange Offer shall have been satisfied or waived in accordance with the
terms thereof (except only those conditions which customarily are satisfied
only upon the consummation thereof) and the Exchange Offer shall not have been
consummated within five Business Days following the Exchange Offer Expiration
Date;


 


9.                                       Delay Fee;
Additional New Notes.


 


(a)                                  Notwithstanding anything to the
contrary contained in Sections 3(c)(ii) or 8(g) of the Voting Agreement, the
Company shall not be required to pay, nor shall the Supporting Noteholders be
entitled to receive, a Delay Fee as a result of the Company’s failure to launch
the Exchange Offer on or before June 15, 2004 or to commence the
Bankruptcy Proceeding on or before June 15, 2004, to the extent required
by Section 3(c)(ii) of the Voting Agreement, except solely with respect to
the period from and after June 15, 2004 to and including June 23,
2004.


 


(b)                                 The Company agrees that any failure
of a Supporting Noteholder to have voted to accept the Bankruptcy Plan pursuant
to the Bankruptcy Plan Solicitation on or before July 16, 2004 shall not,
by itself, be deemed to constitute a Noteholder Breach and any such Supporting
Noteholder shall be entitled to receive the Additional New Notes to the same
extent as if such Supporting Noteholder had voted to accept the Bankruptcy Plan
on or before July 16, 2004, provided, that such Supporting
Noteholder (i) tendered its Existing Notes pursuant to the Exchange Offer on or
before July 16, 2004 and (ii) uses commercially reasonable efforts to
cause its Existing Notes to be voted to accept the Bankruptcy Plan pursuant to
the Bankruptcy Plan Solicitation on or before the Exchange Offer Expiration
Date.


 


10.                                 No Other
Changes.  Except as expressly set
forth in this Fourth Amendment to Voting Agreement, all provisions of the
Voting Agreement shall remain unmodified and in full force and effect.


 


11.                                 Counterparts.  This Fourth Amendment to Voting Agreement may
be executed in one or more counterparts, each of which shall be deemed an
original and all of which shall


 


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constitute
one and the same agreement.  Delivery of
an executed counterpart of a signature page by telecopier shall be effective as
delivery of a manually executed counterpart. 
Any Supporting Noteholder may become party to this Fourth Amendment to
Voting Agreement on or after the date hereof by executing and delivering a
signature page to this Fourth Amendment to Voting Agreement.


 


12.                                 Effective
Date.  In accordance with
Section 12 of the Voting Agreement, this Fourth Amendment to Voting
Agreement shall be effective upon the Company and the Required Noteholders
becoming parties hereto by executing and delivering a signature page to this
Fourth Amendment to Voting Agreement.


 


13.                                 Certain
Definitions.  Capitalized terms used
herein and not otherwise defined herein shall have the respective meaning
ascribed to them in the Voting Agreement.


 


14.                                 Public
Disclosure.  Upon the execution and
delivery of this Fourth Amendment to Voting Agreement by the Required
Noteholders and the Company, the Company shall (i) issue a press release
in the form attached hereto as Annex C, and (ii) file a Report
on Form 6-K with the SEC and an analogous report with the CNBV containing such
press release, together with a copy of this Fourth Amendment to Voting
Agreement.


 


[SIGNATURES ON NEXT
PAGE]


 


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IN
WITNESS WHEREOF, each of the parties to this Fourth Amendment to Voting
Agreement has caused this Fourth Amendment to Voting Agreement to be executed
and delivered by its duly authorized officers as of the date first written
above.


 


	
   

  	
  GRUPO TMM, S.A.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Address:

  	
  Av.
  De la Cuspide #4755

  
	
   

  	
   

  	
   

  	
  Col.
  Parques del Pedregal

  
	
   

  	
   

  	
   

  	
  C.P.
  14010
  Mexico, D.F.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SUPPORTING NOTEHOLDERS

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Address:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Principal Amount of
  Existing

  	
   

  
	
   

  	
   

  	
  Notes:

  	
  $                        2003
  Notes

  	
   

  
	
   

  	
   

  	
   

  	
  $                        2006
  Notes

  	
   

  
						



 


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ANNEX A


 


[New Money Financing Term Sheet]


 
















 


ANNEX B


 


[Registration Rights Agreement]


 
















 


ANNEX C


 


[Press Release]


 
















 


ANNEX D


 


[Prospectus Supplement]