Exhibit 10.38


 


This Agreement dated as of
August    , 2004 (the “Effective Date”), is between Grupo TMM, S.A., a sociedad anónima
incorporated under the laws of the United Mexican States (“Mexico”) (“TMM”),
Promotora Servia, S.A. de C.V., a sociedad anónima de capital
variable incorporated under the laws of Mexico, (“Servia”), and JPMORGAN CHASE BANK (formerly known as The
Chase Manhattan Bank), a New York state chartered banking corporation (the “Bank”).


 


WITNESSETH


 


A.            TMM has authorized
and obtained all necessary approvals to carry out on exchange offer, pursuant
to which it will exchange its outstanding 91/2% notes due 2003 (the
“2003 Notes”) and its 101/4% senior notes due 2006 (“2006
Notes” and together with the 2003 Notes the “Existing Notes”) for
new 101/2% notes due 2007 (the “New Notes”). The New Notes will be
exchanged for the Existing Notes, and shall also be used to pay certain
payables of TMM.


 


B.            On January 15, 1991, Transportación Maritima
Mexicana, S.A. de C.V. (now Grupo TMM, S.A.) and Grupo Servia, S.A. de C.V.
(now Promotora Servia, S.A. de C.V.) entered into a services agreement (as
amended, modified and supplemented from time to time), by which Servia provided
TMM with administration, financial, corporate and business management services (the
“Services Agrement”).


 


C.            On August 23, 2001, TMM and Servia
entered into an agreement to terminate the Services Agreement, as amended by
(i) an amendment agreement dated as of October 11, 2001, (ii) a second
amendment agreement dated as of August 27, 2002, and (iii) certain letter
agreement executed as of August 27, 2002, by which TMM agreed and assumed the
obligation to pay to Servia the amount of US$17,500,000.000 (seventeen million
five hundred thousand 00/100) dollars, legal currency of the United States (“Dollars”)
as payment for termination of the Services Agreement (the “Termination
Payment”).


 


D.            TMM and Servia acknowledge that as
of the date hereof, the outstanding balance of the Termination Payment is
US$6,500,000.00 (six million five hundred thousand 00/100) Dollars.


 


E.             TMM has offered Servia to pay the
outstanding balance of the Termination Payment, by transferring to Servia New
Notes for such amount, and Servia has agreed to receive New Notes in payment of
the outstanding balance of the Termination Payment.


 


NOW, THEREFORE, in
consideration of the terms and conditions set forth below, the Parties agree as
follows:


 


1.             Payment
of the Termination Payment


 


Servia agrees to receive from
TMM and TMM agrees to deliver to Servia, in the date of this Agreement, as
payment for the outstanding balance of the Termination Payment, New Notes for
the amount necessary to cover the outstanding balance of the Termination
Payment.


 


Due to the foregoing, Servia
hereby acknowledges that TMM has paid the Termination Payment in full, and by
its signature in this Agreement grants in favor of TMM the most ample receipt
available in law, and releases TMM from any and all liabilities derived from
the Termination Payment, for all legal effects whatsoever.


 

















 


2. Appearance of JP Morgan


 


The Bank appears and executes
this Agreements in its character of creditor of Servia pursuant to the Facility
Agreement, September 18, 1997, in order to express its consent with payment of
the Termination Payment by TMM to Servia pursuant to the terms and conditions
hereof.


 


3. Miscellaneous


 


3.1           Assignment.
Neither party may assign totally or partially its rights and obligations under
or in connection with this Agreement without prior written consent of the other
Parties for such purpose.


 


3.2           Applicable Law;
Jurisdiction.


 


(1)           To the extent legally permissible,
this Agreement shall be governed by, construed and interpreted in accordance
with the applicable Laws of Mexico


 


(2)           For everything related to the
interpretation and enforceability of this Agreement, the Parties expressly and
irrevocably submit themselves to the jurisdiction of the competent courts of
Mexico City, Federal District, and hereby irrevocably and uncoditionally waive
to any other forum or jurisdiction afforded to them by law or othewise.


 


3.3           Modifications, Etc. No
amendment or waiver of any of the terms and conditions of this Agreement, nor
consent to departure from any such terms and conditions, shall have effect
unless the same shall be in writing and signed by all of the Parties; and even
in such case, such modification, waiver or consent shall only be effective for
the specific purpose and for the specific instance for which given.


 


3.4           Severability.
If any one or more of the provisions of this Agreement shall be held invalid,
illegal or unenforceable under applicable law, the validity, legality and
enforceability of the remaining provisions contained herein shall not be
affected or impaired. In that case the invalied or unenforceable provision is
deemed to be replaced by such a valid and enforceable provision which
corresponds as closely as possible to the invalid or unerforceable privision.


 


3.5           Entire Agreement.
This Agreement sets out the entire agreement and understanding between the
Parties with respect to its subject matter, and supersedes any and all earlier
and current agreements, either orally or in writing, between the Parties.


 


3.6           Notices. Any
notice or other communication required or permitted to be given or made
pursuant to this Agreement shall be in writing and sent by Registered or
Certified Mail, facsimile or letter delivered by hand to the Party to whom such
notice or communication is required or permitted to be given at the address set
forth in the signature pages of this Agreement. If a notice or other
communication is sent by facsimile, the sending Party shall confirm such
fecsimile by written letter.  The notice
or communication shall be deemed to have been given once the facsimile is sent
to the other Party, provided that, a confirmatory copy of the facsimile letter
is mailed on the same day on which the facsimile letter is sent to the other
Party and that such confirmatory copy is received within normal time of
delivery by postal services.


 


3.7           Titles: Headings.
The titles of the articles, paragraphs and the sections of this Agreement,
appear only for the convenience of the Parties, and in no case shall interfere
with the legal interpretation of this Agreement.


 


3.8           Counterparts.
This Agreement may be signed in one or more counterparts by the Parties, each
of which shall constitute an orginal and all of which shall constitute one and
the same agreement.


 


 

















 


 


IN
WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.


 


Grupo TMM, S.A.


 


	
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  By:

  	
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  By:

  	
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  Title:

  	
  Director
  General

  	
   

  	
  Title:

  	
  [ILLEGIBLE]

  	
   

  
	
  Domicile:  Av. de la Cuspide 4755

  	
  Domicile:  Av. de la Cuspide 4755

  
	
  Col. Parques
  del Pedregal 14010,

  	
  Col. Parques
  del Pedregal 14010,

  
	
  México, D.F.

  	
  México, D.F.

  
											



 


Promotora Servia, S.A. de C.V.


 


	
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  By:

  	
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  By:

  	
  [ILLEGIBLE]

  	
   

  
	
  Title:

  	
  Presidente

  	
   

  	
  Title:

  	
  [ILLEGIBLE]

  	
   

  
	
  Domicile:  Génova No. 2 Desp. 301,

  	
  Domicile:  Génova No. 2 Desp. 301,

  
	
  México, D.F.

  	
  México, D.F.

  
											



 

















 


Consented to:


 


JP Morgan Chase Bank


 


	
   

  	
   

  	
  /s/ Jorge Sosa

  	
   

  
	
   

  	
  By:

  	
   

  	
  JORGE SOSA

  	
   

  
	
   

  	
  Title:

  	
    MANAGING
  DIRECTOR

  	
   

  
	
   

  	
  Domicile:

  	
    345
  PARK AVE

  	
   

  
	
   

  	
    NEW
  YORK NY